Until Contrary Precedent Is Laid Down By Supreme Court, Anticipatory Bail Application Filed Directly Before High Court Maintainable: Kerala High Court

The High Court was hearing an anticipatory bail application filed directly before it, where maintainability arose as a preliminary issue in view of the recent concerns expressed by the Supreme Court regarding such applications being filed without first approaching the Sessions Court.

A Single Judge Bench comprising Justice Bechu Kurian Thomas, while holding the application maintainable, observed that "In view of the binding precedents of the Supreme Court in Gurbaksh Singh Sibbia and Kanumuri Raghurama Krishnam Raju, apart from that of this Court in Balan, an application for anticipatory bail is maintainable in the High Court and the party is at liberty to choose the forum. Until a contrary precedent is laid down by the Supreme Court, this Court is bound to follow the above propositions of law."

Senior Advocate P. Vijayabhanu appeared for the petitioners. Advocate Anand Kalyanakrishnan with Public Prosecutor Sreeja V. appeared for the respondents.

Background

The petitioners had directly approached the High Court seeking anticipatory bail under Section 482 BNSS. Although the maintainability of the application on this ground was not objected to by the respondents, the High Court considered the issue in light of the concerns raised by the Supreme Court over parties bypassing the Sessions Court.

The Bench observed that “This application for anticipatory bail has been filed directly before this Court without the applicants first approaching the Sessions Court. Since the maintainability of this application is in doubt, the said issue needs to be addressed at the outset itself, as it relates to the very jurisdiction to entertain this application. The question assumes relevance since the Supreme Court had, recently, by its order dated 08-09-2025 in Mohammed Rasal. C & Another v. State of Kerala [SLP (Crl) No. 6588/2025] expressed its concern regarding anticipatory bail applications being filed directly before the High Court without first approaching the Sessions Court.”

Court’s Observations

The Kerala High Court, at the outset, underscored that the Supreme Court has posted the matter for further consideration, but “no binding precedent has been laid down in the above issue till date”. The bench further highlighted that since this bail application had already been reserved for orders before the Supreme Court expressed its concerns, the High Court was “obliged to pronounce final orders on this bail application.”

The Court traced earlier rulings beginning with Usman v. S.I. of Police, where a Single Judge of the Kerala High Court had ordered an applicant to approach the Sessions Court first. However, this was overruled by a Division Bench of the High Court in Balan v. State of Kerala, which held that a citizen has the right to choose the Court that should consider his anticipatory bail.

The Court further noted that in Gurbaksh Singh Sibbia v. State of Punjab, the Constitution Bench had clarified that when an application for anticipatory bail is made to the High Court or Sessions Court, “it must apply its own mind to the question and decide whether a case has been made out for granting such relief.” The Apex Court had further held that “…It cannot leave the question for the decision of the Magistrate concerned under section 437 of the Code as and when an occasion arises. Such a course will defeat the very object of section 438.”

To reinforce the observations made, the Kerala High Court cited Kanumuri Raghurama Krishnam Raju v. State of Andhra Pradesh (2021), in which the Supreme Court had ruled that “The jurisdiction of the Trial Court as well as the High Court under S.439 of the Code of Criminal Procedure is concurrent and merely because the High Court was approached by the appellant without approaching the Trial Court would not mean that the High Court could not have considered the bail application of the appellant. As such, in our view, the High Court ought to have considered the bail application of the appellant on merits and decided the same.”

The Kerala High Court also referred to decisions of the Himachal Pradesh and Andhra Pradesh High Courts, which had recognised the right of a person to directly approach the High Court for anticipatory bail, underscoring that compelling them to first approach the Sessions Court “may result in an uncalled for curtailment of his right as the provision relates to the liberty of a person.”

In view of these precedents, the High Court concluded that an application for anticipatory bail is maintainable before it without first approaching the Sessions Court. The Bench, however, clarified that until the Supreme Court lays down a contrary precedent, the established propositions must be followed.

Conclusion

Consequently, the Kerala High Court rejected the bail application on merits, and the petition was accordingly dismissed.

Cause Title: Venu Gopalakrishnan Vs The State of Kerala (Neutral Citation: 2025:KER:67360)

Appearances

Petitioner: Senior Advocate P. Vijayabhanu, Advocates Thomas J. Anakkallunkal, P. Sanjay, Anupa Anna Jose Kandoth and others.

Respondents: Public Prosecutor Sreeja V, Advocates Dheeraj Rajan, Anand Kalyanakirshnan and others.

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