Introduction
Anticipatory bail protects a person’s personal liberty even before they are arrested. It is a shield against arrest that a court can grant in advance, so that a person is not thrown into jail just because someone has filed a case against them — especially when the case looks false, malicious, or politically motivated. This right flows from Article 21 of the Constitution, which protects every person’s right to life and personal liberty.
Until recently, this protection was given under Section 438 of the old Code of Criminal Procedure (CrPC), 1973. From 1 July 2024. This has been replaced by Section 482 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 — the new criminal procedure law. The core idea remains the same; only the section number has changed.
The Basic Rules
Under Section 482 BNSS, a person who fears arrest can approach either the Sessions Court or the High Court. Both have the power to grant this protection — the law does not force a person to go only to one or the other.
It is important to understand what anticipatory bail actually does. It does not stop the police from arresting a person altogether. What it does is direct the police that, if they do arrest the person, they must release them immediately after the person signs a bond and agrees to certain conditions set by the court.
The bail granted is not automatic — a judge has full discretion, and will look at the facts of each case before deciding.
What the Supreme Court Has Stated on It
Indian courts follow one guiding principle: bail is the rule, jail is the exception.
1. Gurbaksh Singh Sibbia v. State of Punjab (1980 AIR 1632) This is the oldest and most important ruling on the subject, decided by a five-judge bench.
- A person cannot get anticipatory bail just because they have a vague fear of being arrested. They must show real, solid reasons — a “reason to believe” — that they are about to be arrested for a serious (non-bailable) offence.
- Courts also cannot give “blanket” protection by issuing an open-ended orders that would cover any and every future offence a person might be accused of. Such open-ended orders would make it impossible for the police to investigate crimes properly.
2. Sushila Aggarwal v. State (NCT of Delhi) [AIR 2020 SC 831] Decided by another five-judge bench — reported as (2020) 5 SCC 1 — this case settled a long-running debate about how long anticipatory bail lasts.
- The Court held that anticipatory bail should not normally be limited to a fixed number of days or months.
- Once granted, it can protect the person right up until the trial ends, unless something changes — for example, if the person tries to abscond, tampers with witnesses, or new evidence comes to light. Only then can a court cut the protection short.
3. Siddharam Satlingappa Mhatre v. State of Maharashtra [AIR 2011 SC 312]. Here, the Supreme Court reminded lower courts to balance two things: the safety of society and the freedom of the individual. Judges were told not to reject anticipatory bail automatically, especially in cases where the complaint appears to be mainly aimed at humiliating or harassing the accused rather than genuinely pursuing justice.
What the Kerala High Court Has Said
One question that keeps coming up is: must a person first ask the Sessions Court for anticipatory bail, or can they go directly to the High Court?
For years, the Kerala High Court allowed people to approach it directly. This was based on older rulings like Balan v. State of Kerala, and was reaffirmed as recently as 2025 in Venu Gopalakrishnan & Ors. v. State of Kerala (2025), where a Single Judge held that a person is free to choose which court to approach — until the Supreme Court says otherwise.
However, the Supreme Court has raised concerns about this practice. In Mohammed Rasal C. & Anr. v. State of Kerala & Anr. (SLP (Crl.) No. 6588/2025), the Supreme court criticised what they called a “regular practice” in the Kerala High Court of accepting anticipatory bail applications without the person first going to the Sessions Court. The judges felt this skips a step in the normal court hierarchy under the CrPC/BNSS. They appointed Senior Advocate Sidharth Luthra to assist the Court as amicus curiae, and in November 2025, referred the question to a larger, three-judge bench of the Supreme Court for a final decision.
Since then, different judges of the Kerala High Court have taken different views:
- In Mukesh Murali v. State of Kerala (B.A. No. 13140/2025, decided 25 October 2025), Justice K. Babu refused to entertain a direct petition, following the Supreme Court’s concerns in the Mohammed Rasal case, noting there was nothing special about the case to justify skipping the Sessions Court.
- In Venu Gopalakrishnan (mentioned above), a different judge held that a person can still choose which court to approach, relying on the earlier Balan case and on the Supreme Court’s own recognition in Gurbaksh Singh Sibbia that both courts have power to grant bail.
In short: this question is currently unsettled. It is being examined by a three-judge bench of the Supreme Court, and until that bench rules, different judges in Kerala may decide it differently.
Can Someone Outside India Apply?
In Vijay Babu v. State of Kerala (2022), Karala High Court held that a person can apply for anticipatory bail even while they are physically outside India. Being abroad does not take away a citizen’s right to ask the court to protect them from arrest — but the person must be present in India before the final hearing and must agree to whatever conditions the court sets.
This view was later doubted by another judge of the same court in a subsequent case, and the point of law has now been referred to a larger bench of the Kerala High Court for a final answer.
Special Laws: SC/ST Act and NDPS Act
- SC/ST (Prevention of Atrocities) Act: This law normally bars anticipatory bail. However, courts — including the Kerala High Court — have held that this bar does not apply if the complaint, on the face of it, does not even disclose the basic ingredients of an offence under the Act.
- NDPS Act (Narcotic Drug related Offences): Courts remain very strict here. Even if nothing was physically found on the accused at the time, that alone is not treated as a good enough reason to grant anticipatory bail in drug cases.
Conclusion
The shift from Section 438 CrPC to Section 482 BNSS has not changed the essential purpose of anticipatory bail: it protects innocent people from unnecessary arrest while still allowing the police to do investigation. The Supreme Court’s rulings in Gurbaksh Singh Sibbia and Sushila Aggarwal remain the foundation of this law, while the Kerala High Court continues to shape how it works in practice — particularly on questions like direct access to the High Court and applications from abroad.
The most important open question — whether a person can go straight to the High Court, or must first try the Sessions Court — is now before a three-judge bench of the Supreme Court.
