SC: High Courts to Hear Anticipatory Bail Only in 4 Cases

Supreme Court Told: High Courts Should Hear Anticipatory Bail Pleas Directly Only in 4 Special Cases

Amici Curiae Report Says Sessions Courts Must Be First Stop for Pre-Arrest Bail Applications

Supreme Court Reviews Data Showing Kerala and Odisha High Courts Lead in Direct Anticipatory Bail Orders

By Our Legal Reporter

New Delhi: October 15, 2025:

The Supreme Court of India is examining a crucial issue: should High Courts directly hear anticipatory bail pleas, or should applicants first approach Sessions Courts? A detailed report submitted by court-appointed amici curiae—Senior Advocate Siddharth Luthra and Advocate G. Arudhra Rao—has recommended that High Courts should only entertain such pleas in four exceptional circumstances.

This recommendation comes after the Supreme Court expressed concern over the growing trend of High Courts, particularly in states like Kerala and Odisha, directly granting anticipatory bail without requiring applicants to first approach the Sessions Court.

What Is Anticipatory Bail?

Anticipatory bail is a legal protection granted under Section 438 of the Code of Criminal Procedure (CrPC), now replaced by Section 482 of the Bharatiya Nagarik Suraksha Sanhita (BNSS). It allows a person to seek bail in anticipation of arrest, usually in cases where they fear being falsely implicated.

Both Sessions Courts and High Courts have concurrent powers to grant anticipatory bail. However, the amici curiae stressed that Sessions Courts should be the primary forum for such applications, with High Courts stepping in only in rare and extraordinary cases.

The Four Circumstances for Direct High Court Intervention

According to the amici curiae report, High Courts should directly entertain anticipatory bail pleas only in the following four situations:

When the case involves extraordinary public importance – for example, matters affecting constitutional rights or large-scale public interest.
When there is a reasonable apprehension of bias or lack of fairness at the Sessions Court level.
When the Sessions Court is not functioning due to strikes, natural calamities, or other extraordinary reasons.
When the case involves complex legal or constitutional questions that require the High Court’s direct attention.

Outside these four scenarios, the report recommends that applicants should first approach the Sessions Court.

Why Sessions Courts Should Be the First Forum

The amici curiae argued that giving primacy to Sessions Courts ensures access to justice at the grassroots level. Sessions Courts are closer to the people, less expensive, and more accessible than High Courts.

They also pointed out that if High Courts continue to entertain anticipatory bail pleas directly, it could lead to:

Overburdening of High Courts with routine bail matters.
Erosion of the Sessions Court’s role in the criminal justice system.
Unequal access to justice, since not everyone can afford to approach High Courts.

Data from Across India

The amici curiae collected data from all High Courts to understand how anticipatory bail pleas are being handled. The findings were striking:

Kerala High Court: Between July 2024 and September 2025, it granted anticipatory bail to 3,286 persons. Out of 9,215 applications filed, 7,449 were filed directly without first approaching the Sessions Court.
Odisha High Court: Topped the list by granting anticipatory bail to 8,801 persons during the same period. Out of 18,340 petitions, 17,978 were filed directly before the High Court.

These numbers show that in some states, bypassing Sessions Courts has become a regular practice, raising concerns about judicial discipline and efficiency.

Supreme Court’s Concerns

The Supreme Court has repeatedly expressed disapproval of this trend. In recent hearings, the bench noted that while concurrent jurisdiction exists, judicial discipline requires that Sessions Courts be approached first.

The Court also highlighted that allowing High Courts to routinely entertain such pleas could create a perception of forum shopping, where litigants choose the court, they believe will be more favourable.

Legal Community’s Response

The amici curiae’s recommendations have sparked debate within the legal community.

Supporters argue that the move will strengthen the Sessions Court system, reduce the burden on High Courts, and make justice more accessible.
Critics caution that in politically sensitive cases or where local pressures exist, applicants may not get a fair hearing at the Sessions Court level, making direct High Court access essential.

Senior lawyers have also pointed out that anticipatory bail is a fundamental safeguard of personal liberty, and any restrictions on access to High Courts must be carefully balanced against the risk of wrongful arrest.

The Way Forward

The Supreme Court is expected to issue guidelines based on the amici curiae report. If accepted, these guidelines could reshape how anticipatory bail applications are filed and heard across India.

Legal experts believe that the Court may adopt a middle path—requiring Sessions Courts to be the first forum in most cases, while allowing High Courts to step in under the four exceptional circumstances outlined in the report.

Why This Matters

The outcome of this case will have far-reaching consequences:

For citizens: It will determine how easily they can access anticipatory bail protections.
For the judiciary: It will clarify the balance of power between Sessions Courts and High Courts.
For the criminal justice system: It will set a precedent on judicial discipline and efficiency.

At its core, the debate is about balancing individual liberty with judicial orderliness.

Conclusion

The amici curiae report before the Supreme Court has brought much-needed clarity to the anticipatory bail debate. By recommending that High Courts should directly hear such pleas only in four exceptional circumstances, the report seeks to restore the primacy of Sessions Courts while preserving the High Courts’ role in extraordinary cases.

As the Supreme Court deliberates, the decision will not only impact thousands of bail applicants each year but also shape the future of India’s criminal justice system.