New Delhi, November 12, 2025 — The Supreme Court on Wednesday referred to a three-judge bench the question of whether a litigant has the choice to directly approach a high court for anticipatory bail, or whether it is mandatory to first move the sessions court.

A two-judge bench of Justices Vikram Nath and Sandeep Mehta said the matter will be posted for hearing once the three-judge bench is constituted. Senior advocate Siddharth Luthra has been appointed as amicus curiae to assist the court in the matter.

The issue arose after the court noted the Kerala High Court’s regular practice of entertaining anticipatory bail applications directly, bypassing the sessions court. The bench observed that such practice may result in incomplete facts being placed on record, which might otherwise have been properly considered at the sessions court level.

The court highlighted that under the erstwhile Code of Criminal Procedure and Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, there is a hierarchy for granting bail, and Section 482 of the BNSS deals with directions for bail for persons apprehending arrest.

The matter comes up after two petitioners challenged a Kerala High Court order rejecting their plea for anticipatory bail, having moved the high court directly without approaching the sessions court. The Supreme Court has also issued notice to the Kerala High Court through its registrar general.