On coming to know about the same and apprehending his arrest, 2 the alleged assailant files an application for anticipatory bail before the District and Sessions Judge, Sundargarh, Odisha, having jurisdiction over Rourkela. 2,3 & 4 in FIR No 43/2022 which alleged commission of offences under Sections 498A, 406 and 323 of the Indian Penal Code, 1860 (‘IPC’, for short), registered by the complainant-wife at Chirawa Police Station, District Jhunjhunu, Rajasthan. On 07.03.2022, the complainant-wife filed Transfer Petition No.590/22 before this Court to transfer the case from the Principal Judge, Family Court, Bengaluru to Court of Additional District Judge, Chirawa, Jhunjhunu, Rajasthan. 46,00,000/- on the wedding and had met the dowry demands made by the accused-husband and his family members being his father, mother and younger brother, i.e., accused Nos.2, 3 & 4. The complainant-wife was harassed even when she was COVID-19 positive, and eventually, she was driven out of the matrimonial house on 02.06.2021. The complainant-wife’s father begged the accused-husband to take back his daughter, but the accused-husband refused.
The Additional City Civil and Sessions Judge, Bengaluru City, on 07.07.2022, allowed the applications of anticipatory bail made by the accused-husband and his family members, accused Nos. It is clear from a reading of the impugned orders that both Bagalkunte Police Station, Bengaluru and Chirawa Police Station, Rajasthan, were Respondents in the Bail Application. 2, 3 & 4, it was realised that the learned Sessions Judge, Bengaluru, had granted them anticipatory bail. On 07.07.2023, this Court requested learned Additional Solicitor General Sri Vikramjit Banerjee to assist the Court as an amicus curiae, having regard to the ramifications that would arise in the context of Section 438 of CrPC and the jurisdiction of the concerned Sessions Court or High Court to grant pre-arrest bail, when the FIR is not registered within the territorial jurisdiction of a particular district or State but in a different State. We have heard Sri Vikramjeet Banerjee, Additional Solicitor General and learned amicus, Sri Kaustav Paul, learned senior counsel for the complainant-wife, Dr. Elaborating on the divergent approaches of various High Courts in the country regarding the grant of ‘extra-territorial anticipatory bail’, learned amicus submitted that the Courts have evolved the 10 ‘transit anticipatory bail’ approach to provide an equitable and interim relief enabling an accused travelling a residing in a different State to seek anticipatory bail.
Referring to the judgement of this Court in Navinchandra Majithia vs State of Maharashtra, (2000) 7 SCC 640, learned amicus apprised this Court of an alternative approach that is based on the ‘cause of action’ theory in criminal law. Grant of bail by the Court at Bengaluru in an F.I.R which was not lodged within its territorial Jurisdiction, had left the complainant- wife without an opportunity to oppose the same. That territorial jurisdiction assumes paramount importance as the offender, unlike the defendant in a civil suit instituted as per the Civil Procedure Code, 1908, has no role to play as far as the conferment of jurisdiction of a Court is concerned. In this regard, learned senior counsel submitted that the power of ‘the High Court or the Court of Session’ to grant pre-arrest anticipatory bail under Section 438 of CrPC cannot be invoked by a Court which does not have territorial jurisdiction. It was further contended that a proper construction of the word ‘the’ prefixed to both High Court and Sessions Court in the text of Section 438 of CrPC would mean the High Court or the Sessions Court having the competent jurisdiction. As an alternative form of relief to persons resident in a particular State but apprehending arrest by the police in another State, learned senior counsel relied upon judgements of this Court in Balchand Jain vs State of M.P., (1976) 4 SCC 572 (Balchand Jain) and Sushila Aggarwal vs NCT of Delhi, (2020) 5 SCC 1 (Sushila Aggarwal), which enunciated the approach of ‘transit anticipatory bail’ and ‘interim protection’ that balanced the right to life and personal liberty in Article 21 and the right to freedom of movement under Article 19(1)(d) with the fundamental scheme of administration of criminal justice, as prescribed in the CrPC.
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If the person is seeking interim protection apart from his/her normal place of residence, he/she must state the reasons for doing so and also disclose the nature of apprehension of arrest in the area wherein he/she does not reside; c. Learned counsel for the State of Karnataka submitted that having regard to the relevant judicial precedents on Section 438 of CrPC, an appropriate order may be made in this case. Learned counsel of the accused-husband also questioned the bona fides of the complainant-wife by relying upon the delay in filing the present petition. Whether the power of the High Court or the Court of Session to grant anticipatory bail under Section 438 of the CrPC could be exercised with respect to an FIR registered outside the territorial jurisdiction of the said Court? Section 2(j) defines “local jurisdiction”, in relation to a Court or Magistrate to mean the local area within which the Court or Magistrate may exercise its powers under the CrPC. Section 156 further postulates that any officer in-charge of a police station may investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. Section 177 in Chapter XIII of the CrPC mandates that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.
Direction for grant of bail to person apprehending arrest.- 21 (1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter-alia, the following factors, namely:— (i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) the possibility of the applicant to flee from justice; and (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail; Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge 22 (2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including— (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) a condition that the person shall not leave India without the previous permission of the Court; (iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section. (4) Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code (45 of 1860).” 6 The salient features of Section 438 of CrPC can be culled out as under: 23 i.
The Parliament has provided ample legislative guidance on the factors that may guide the High Court or the Court of Session while considering the application for grant of an anticipatory bail. The High Court or the Court of Session may grant an interim order under Section 438(1) of CrPC in case the facts and averments in the application satisfy the factors laid down. Even if 24 the interim order is made in favour of the applicant, the High Court or the Court of Session is mandated under Section 438 (1A) of CrPC to cause a notice of not less than seven days along with a copy of the interim order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application is finally heard by the Court.
Section 438(3) states that if such a person is thereafter arrested without warrant by an officer in charge of a police station on an accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he is entitled to be released on bail. The Parliament has inserted clause (4) to Section 438 of CrPC vide the Criminal Law (Amendment) Act, 2018, thereby stipulating that the remedy under Section 438 of CrPC cannot be resorted to by any person accused of having committed an offence under Sections 376(3), 376-AB, 376-DA or 376-DB of the IPC. In Jamini Mullick vs Emperor, (1909) ILR 36 Cal 174, the Calcutta High Court considered a case where the Presidency Magistrate had issued warrants for the arrest of certain persons as suspects in a murder case. The judgment was prefaced by remarking that ordinarily the Court did not grant bail in cases of that kind, but emphasised on Section 498 of the erstwhile Criminal Procedure Code to hold that the High Court could exercise revisionary jurisdiction and grant bail to any person. The Full Bench framed the question as under: “Whether the High Court can grant any relief, and if so what, to a person seeking an order for bail, in anticipation of his arrest for an offence?” 28 10.3 The Full Bench held that the High Court had power under Section 498 of the erstwhile Code of Criminal Procedure Code to make an order that a person who is suspected of an offence for which he may he arrested by a police-officer or a Court, shall be admitted to bail. The Full Bench struck a cautious note that ‘such cases would necessarily be extremely rare, and by its very nature, the power to interfere with the discretion of an official such as a police-officer exercising statutory powers perhaps at some remote place, at the very earliest stages of an investigation, would require to be exercised with the very greatest care.’ The suggestion for directing the release of a person on bail prior to his arrest (commonly known as ‘anticipatory bail’) was carefully considered by us. Though there is a conflict of judicial opinion about the power of a Court to grant anticipatory bail, the majority view is that there is no such power under the existing provisions of the Code. The Law Commission also expressed a view that it was imperative that the final order of grant of anticipatory bail should only be made after notice to the Public Prosecutor so as to prevent the abuse of the process of law at the ‘instance of unscrupulous petitioners.’ 7 Observing that the crimes, the criminals and even the complainants can occasionally possess extraordinary features, in Gurbaksh Singh Sibbia, it was stated that “when the even flow of life becomes turbid, the police can be called upon to inquire into charges arising out of political antagonism”.
Despite the inclusion of the provision for anticipatory bail in the CrPC after the acceptance of the aforesaid recommendation, the expression “anticipatory bail” remained undefined in the CrPC. The Full Bench of the Punjab and Haryana High Court had rejected the application for bail while furnishing the reasons that the power under Section 438 of CrPC is of an extraordinary character and must be exercised sparingly in exceptional cases. 1 It was observed that since the denial of bail amounts to deprivation of personal liberty, the Court should lean against the imposition of unnecessary restrictions on the scope of Section 438 of CrPC, especially when not imposed by the legislature in terms of the Section.
In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant’s presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and “the larger interests of the public or the State” are some of the 34 considerations which the Court has to keep in mind while deciding an application for anticipatory bail.” 2 On the question of evaluation of the consideration as to whether the applicant is likely to abscond, it was observed that there can be no presumption that the wealthy and the mighty will submit themselves to trial and the humble and the poor will run away from the course of justice, any more than there can be a presumption that the former are not likely to commit a crime and the latter are more likely to commit it. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the Court objectively, because it is then alone that the Court can determine whether the applicant has reason to believe that he may be so arrested.
It cannot leave the question for the decision of the Magistrate concerned under Section 437 of the Code, as and when an occasion arises. After arrest, the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested.” 3 Cautioning the Courts against granting blanket order of anticipatory bail so as to cover or protect any and every kind of allegedly unlawful activity, or eventuality, it was observed that there must be a genuine apprehension of arrest by the applicant and there must be something tangible to go by on the basis of which it can be said that the applicant’s apprehension of arrest is genuine. Therefore, the Court which grants anticipatory bail must take care to specify the offence or offences in respect of which alone the order will be effective.
As regards the second question referred to this Court, it was held that the life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the Court, or when charges are framed, but can continue till the end of the trial. 3 The following clarifications were also issued which are to be borne in mind while dealing with an application under 438 of CrPC Section: “a) When an application is made seeking anticipatory bail, it should be based on concrete facts (and not vague or general allegations) relatable to one or other specific offence. Whether to grant or not is a matter of discretion and similarly if bail is to be granted, the kind of conditions to be imposed or not to be imposed depends upon the facts of each case and subject to the discretion of the Court. An order of anticipatory bail should not be blanket in the sense that it should not enable the accused to commit further offences and claim relief of indefinite protection from arrest.
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It is open to the police or the investigating agency to move the Court concerned, which grants anticipatory bail, for a direction under Section 439(2) to arrest the accused, in the event of violation of any term, such as absconding, non- cooperating during investigation, evasion, inducement or intimidation to witnesses with a view to influence outcome of the investigation or trial, etc. The Court then considered the question whether, while dismissing an application seeking anticipatory bail, the plea made by the applicant seeking protection for some time as he or she is the primary caregiver or breadwinner of his or her family members and needs to make arrangements for them and therefore even if a strict case for grant of anticipatory bail is not made out, and rather, where the investigating authority has made out a case for custodial investigation, whether the Court may exercise its discretion to grant protection against arrest for a limited period. Secondly, the granting of the relief for a period of 90 days did not take into consideration the concerns of the investigating agency, the complainant or the proviso under Section 438(1) of CrPC, which necessitates that the Court pass such an exceptional discretionary protection order for the shortest duration that is reasonably required. This Court, while being seized of a challenge to grant extra- territorial anticipatory bail, had kept the question of law open in the following two cases: (i) In Brojen Gogol, this Court considered the Assam Police’s challenge to the Bombay High Court’s grant of anticipatory bail to an accused who was allegedly involved in offences perpetrated in Guwahati. The Bombay High Court had permitted the applicant for extra-territorial anticipatory bail to move before the appropriate Court in Gujarat for the said relief and granted transit bail for four weeks so 43 as to enable the same. Before proceeding further, the reasoning and outcome of some of the High Court judgements on the grant of extra-territorial anticipatory bail under Section 438 of CrPC are tabulated as under: Case Name High Court Outcome and Reasoning 1.
438 of CrPC into an ad interim and final, but it is permissible if it is so expedient or desirable, for any of the Courts competent to take cognizance of and to try an offence and the Courts competent to grant bail can also grant anticipatory bail for a specified period only. Naidu) Karnataka High Court regarding FIR registered in the State of Kerala The anticipatory bail applicant was granted protection from arrest with the direction that upon a future arrest, he shall be released on bail on his 45 Case Name High Court Outcome and Reasoning executing a bond of a sum of Rs. It was held that in case he made any such application within the time referred to above, the order of anticipatory bail would be in force till such time as that Court passes an order. The High Court laid emphasis on the expression ‘apprehension of arrest’ and held that if the arrest is likely to be affected within a jurisdiction beyond that of the High Court, then the concerned person may apply to the High Court for anticipatory bail even if the offence is committed in some other State. The High Court laid emphasis on ‘the deliberate designed phraseology’ of Section 438 of CrPC and reasoned that “the High Court” or “the Court of Session” cannot be 47 Case Name High Court Outcome and Reasoning Bench of the Patna High Court. State, 1998 SCC Online Cal 382 (Sadhan Chandra Kolay) Calcutta High Court with respect to offence committed outside the State of West Bengal. So far as the Sessions Court is concerned, its power is limited to the territorial jurisdiction of the Sessions- Division and it cannot exercise the power under Section 438 of CrPC outside its Sessions-Division. The High Court noted that the applicant, a resident of Sirsa in Haryana, had sought anticipatory bail from a Delhi Court by giving a Delhi address in addition 49 Case Name High Court Outcome and Reasoning to a Sirsa address. State of Maharashtra, ABA No.14/2014 (Teesta Atul Setalvad) Bombay High Court regarding offence registered in the State of Gujarat The High Court granted transit bail for four weeks and allowed the applicant to move before the appropriate Court in Gujarat for said relief. The State of U.P., 2022 SCC OnLine All 689 (Ajay Agarwal) Allahabad High Court regarding offence registered in the State of Maharashtra. Therefore, when an accused is arrested in accordance with the order of a Court and whereas the accused needs to be tried in some other competent Court having jurisdiction in the aforementioned matter, the accused is given bail for the transitory period i.e., the time period required for the accused to reach that competent Court from the place he is arrested in. The High Court concluded that there is no fetter on the part of the High Court in granting a 52 Case Name High Court Outcome and Reasoning transit anticipatory bail to enable the applicants to approach the Courts including the High Court within whose jurisdiction the offence is alleged to have been committed and the case is registered.
The Patna High Court in Syed Zafrul Hassan stressed on the plain meaning of Section 438 of CrPC to hold that ‘the High Court’ or ‘the Court of Session’ cannot mean “any” High Court or Court of Session. Calcutta High Court in Sadhan Chandra Kolay relied upon Article 214 of the Constitution which states that there shall be a High Court for each State and had categorically held that the Sessions Judge has got no authority to exercise the power or jurisdiction under Section 438 of CrPC beyond the local limits of the territorial jurisdiction of the Sessions-Division. In section 7.33, page 121, the Committee had proposed that provision regarding anticipatory bail may be retained subject to two conditions: that the Court would hear the Public Prosecutor; and that the petition for anticipatory bail should be heard only by the Court of competent jurisdiction.
Naidu and Gameskraft Technologies have read the expression ‘the High Court or the Court of Session’ in Section 438 of CrPC as different and disjoint 55 from the general scheme of criminal procedure, thereby deciding in favor of grant of protection from arrest to remove the apprehension of arrest at a particular place, irrespective of the territorial jurisdiction to take cognizance of the criminal offence in question. Article 9 of the Universal Declaration of Human Rights, 1948 establishes that “no one shall be subjected to arbitrary arrest, detention or exile.” Article 10 of the International Covenant on Civil and Political Rights of the United Nations, 1966 establishes that “all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”. In denying the motion as premature, the Chief District Judge commented that the “setting of a bail bond is to insure the accused’s presence at trial; it is not designed as a means to avoid arrest.” (b) In the United Kingdom, the common law of arrest was codified in Section 2 of the Criminal Law Act, 1967.
When there is reason to suspect an offence may be repeated, especially though not exclusively in the case of violent offences, it may be used to prevent such repetition. That disruption cannot, in our view, be justified if it is not necessary to take him to the station for one or more of the following reasons: to find out his name and address; to prevent the continuation or repetition of the offence; to protect persons or property; to preserve evidence in connection with that offence; to dispel reasonable suspicion or to turn it into a prima facie case.” 198 held that it was a principle of fundamental importance that every citizen had a right of unimpeded access to a Court, and to a solicitor for the purpose of receiving advice and assistance in connection therewith.
The High Court of Kenya in Coroline Kuthie Karanja vs Director Public Prosecutions, (2021) eKLR extensively referred to Section 438 of CrPC and stated that the constitutional Courts of India had widely construed the fundamental aspects of anticipatory bail to be 60 of great importance and anchored to the right to life and liberty of a person. Article 39 A of the Constitution of India deals with equal justice and free legal aid, which can be construed to be a specie of Article 21 of the Constitution of India, which deals with right to life and liberty. If “ life ” implies not only life in the physical sense but a bundle of rights that makes life worth living, there is no juristic or other basis for holding that denial of “ access to justice ” will not affect the quality of human life so as to take access to justice out of the purview of right to life guaranteed under Article 21.
We need only add that access to justice may as well be the facet of the right guaranteed under Article 14 of the Constitution, which guarantees equality before law and equal protection of laws to not only citizens but non-citizens also. Four main facets that, in our opinion, constitute the essence of access to justice are: (i) the State must provide an effective adjudicatory mechanism; (ii) the mechanism so provided must be reasonably accessible in terms of distance; (iii) the process of adjudication must be speedy; and ( iv ) the litigant’s access to the adjudicatory process must be affordable.” 22.
It was also emphasised that access to justice would, therefore, be a constitutional value of any significance and utility only if the delivery of justice to the citizen is speedy, for otherwise, the right to access justice is no more than a hollow slogan of no use or inspiration for the citizen.
Article 39-A of the Constitution promotes a laudable objective of providing legal aid to needy litigants and obliges the State to make access to justice affordable for the less fortunate sections of the society.” Section 438 CrPC : Interpretation 24.
Section 438(1)(iv) of CrPC makes explicit the legislative intent to prevent humiliation of the persons who apprehend arrest, especially in politically motivated or malicious prosecutions or in false cases. An interpretation giving rise to an absolute bar on the jurisdiction of a Court of Session or a High Court to grant interim anticipatory bail for 65 an offence committed outside the territorial confines of a High Court or Court of Session may lead to an anomalous and unjust consequence for bona fide applicants who may be victims of wrongful, mala fide or politically motivated prosecution. If there is no head of public policy which covers a case, then the Court must in consonance with public conscience and in keeping with public good and public interest declare such practice to be opposed to public policy. The judgement of the Constitution Bench in Gurbaksh Singh Sibbia, in para 13, emphasises that, ‘the High Court and the Court of Session to whom the application for anticipatory bail is made ought to be left free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on the particular facts and circumstances of the case and on such conditions as the case may warrant.’ 30.
What has to be borne in the judicial mind is that the interpretation of all statutes should be favorable to personal liberty subject to fair and effective administration of criminal justice. It would be in furtherance of fostering personal liberty enshrined in Article 21 of the Constitution of India in entrusting a wider jurisdiction to the Court of Session and the High Court in the grant of anticipatory bail, than in foreclosing the same by restructuring the exercise of jurisdiction in the matter of grant of anticipatory bail. We also note that the Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 2022 makes the provision of anticipatory bail inapplicable (a) in case of offences arising out of,— (i) The Unlawful Activities (Prevention) Act, 1967; (ii) The Narcotic Drugs and Psychotropic Substances Act, 1985; (iii) The Official Secrets Act, 1923; (iv) The Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986; (v) The Protection of Children from Sexual Offences Act, 2012; (b) to those offences in which the death sentence may be awarded; (c) to the offences of rape and illegal sexual intercourse enumerated in sections 376, 376-A, 376-AB, 376-B, 376-C, 376-D, 376- DA, 376-DB, 376-E of the Indian Penal Code, 1860.
We also deem it necessary to take note of the evolution of the law on inter-state arrests, as this lies at the heart of ‘apprehension of arrest,’ for which the extraordinary jurisdiction of the High Court and Court of Session are attracted in case the accused resides in or is located in a territorial jurisdiction different from the jurisdiction in which cognizance of crime is taken by the Court of competent jurisdiction. In such circumstances the Courts must balance the interest of the accused in the context of the salutary principle of access to justice which is a facet of Article 21 of the Constitution as well as a Directive Principle of State Policy, especially Article 39(A). As we have seen, the expression ‘anticipatory bail’ is not defined in the CrPC though it is traceable to Section 438 of CrPC This Court in Balchand Jain had defined anticipatory bail to mean bail in anticipation of arrest. Thus, the police is obligated to secure a transit remand of the accused for taking him from the place where he is arrested to the place where the crime is registered, for production before the competent magistrate in terms of the requirement of Article 22.
The Concise Oxford English Dictionary, 10 Edition, Revised, defines the word ‘transit’ to mean 72 carrying of people or things from one place to another; the conveyance of passengers on public transport; an act of passing through or across a place. On the short point that the State of Assam or the Assam police were not heard before granting anticipatory bail to the respondents, this Court set aside the order of the Bombay High Court but granted protection from arrest to the respondents for a limited duration to enable them to approach the Gauhati High Court. Therefore, the Allahabad High Court held that upon the grant of transit anticipatory bail, the accused person who has been granted such bail has to apply for regular anticipatory bail before the competent court which would then consider such a prayer on its own merits. In that case, Bombay High Court held that High Court of one State can grant transit bail in respect of a case registered within the jurisdiction of another High Court in exercise of the power under Section 438 of CrPC. 75 (ii) The order of grant of limited anticipatory bail must record reasons as to why the applicant apprehends an inter-state arrest and the impact of such grant of limited anticipatory bail or interim protection, as the case may be, on the status of the investigation. (iv) The applicant for anticipatory bail must satisfy the Court regarding his inability to seek anticipatory bail from the Court which has the territorial jurisdiction to take cognizance of the offence. We reiterate that such power to grant extra-territorial anticipatory bail should be exercised in exceptional and compelling 76 circumstances only which means where, denying transit anticipatory bail or interim protection to enable the applicant to make an application under Section 438 of CrPC before a Court of competent jurisdiction would cause irremediable and irreversible prejudice to the applicant.
In the illustration, we have stated that if a person commits an offence in one State and the FIR is lodged within the jurisdiction where the offence was committed but the accused resides in another State he can approach the Court in the other State and seek transit anticipatory bail of limited duration. Therefore, in order to avoid the abuse of the process of the Court as well as the law by the accused, it is necessary for the Court before which the plea for anticipatory bail is made, to ascertain the territorial connection or proximity between the accused and the territorial jurisdiction of the Court which is approached for seeking such a relief. The reason as to why he is seeking such bail from a Court within whose territorial jurisdiction the FIR has not been filed must be made clear and explicit to such a Court. Sub-section (1) of Section 7 states that every State shall be a sessions division or shall consist of sessions divisions; and every sessions division shall, for the purposes of CrPC, be a district or consist of districts. Section 26 of the CrPC deals with the Courts by which offences are triable which states that subject to the other provisions of the CrPC, any offence under the IPC may be tried by (i) the High Court; (ii) the Court of Session; or (iii) any other Court by which such offence is shown in the First Schedule to be triable.
In fact, on a reading of Section 438 of CrPC, it does not emerge that the expression “the High Court” or “the Court of Session” must have reference only to the place or territorial jurisdiction within which the FIR is lodged. Since anticipatory bail as well as transit anticipatory bail are intrinsically linked to personal liberty under Article 21 of the Constitution of India and since we have extended the concept of access to justice to such a situation and bearing in mind Article 14 thereof it would be necessary to give a constitutional imprimatur to the evolving provision of transit anticipatory bail. Needless to say, the Court granting transit anticipatory bail would obviously examine the degree and seriousness of the apprehension expressed by the person who seeks transit anticipatory bail; while the object underlying exercise of such jurisdiction is to thwart arbitrary police action and to protect personal liberty besides providing immediate access to justice though within a limited conspectus.
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In the circumstances, we hold that the Court of Session or the High Court, as the case may be, can exercise jurisdiction and entertain a plea for limited anticipatory bail even if the FIR has not been filed within its territorial jurisdiction and depending upon the facts and circumstances of the case, if the accused apprehending arrest makes out a case for grant of anticipatory bail but having regard to the fact that the FIR has not been registered within the territorial jurisdiction of the High Court or Court of Session, as the case may, at the least consider the case of the accused for grant of transit anticipatory bail which is an interim protection of limited duration till such accused approaches the competent Sessions Court or the High Court, as the case may be, for seeking full-fledged anticipatory bail. The position of law regarding the ordinary place of investigation and trial as per Section 177 of the CrPC, especially in matrimonial cases alleging cruelty and domestic violence, alleged by the wife, has advanced from the view held in the case of State of Bihar vs Deokaran Nenshi, (1972) 2 SCC 890 ; Sujata Mukherjee (Smt.) A three judge Bench of this Court has however clarified in Rupali Devi vs State of U.P., (2019) 5 SCC 384 (Rupali Devi) that adverse effects on mental health of the wife even while residing in her parental home on account of the acts committed in the matrimonial home would amount to commission of cruelty within the meaning of Section 498A at the parental home. But in the present case by the impugned orders, the accused-husband and his family members were granted extra-territorial anticipatory bail without issuing notice to the investigating officer and public prosecutor in Chirawa Police Station, Rajasthan wherein the appellant had lodged the FIR.
Case Title: PRIYA INDORIA Vs. THE STATE OF KARNATAKA (2023 INSC 1008)
Case Number: Crl.A. No.-003549-003552 / 2023
