High Courts or Sessions Courts can grant transit anticipatory bail in FIRs registered outside their jurisdiction, subject to conditions: SC

Supreme Court: In an appeal filed by the complainant/wife, against the orders dated 07-07-2022 passed by the Additional City Civil and Sessions Judge, Bengaluru, (‘Bengaluru Court’) wherein the Court has granted anticipatory bail to the accused/husband and his family which alleged commission of offences under Sections 498-A, 406 and 323 of the Penal Code, 1860 (‘IPC’), registered by the complainant/wife at Rajasthan, the division bench of BV Nagarathna and Ujjal Bhuyan ,JJ. has held that if an offence has been committed by a person in a particular State and if the First Information Report (‘FIR’) is filed in another State and the accused is a resident in a third State, bearing in mind access to justice, the accused who is residing in the third State or who is present there for a legitimate purpose should be enabled to seek the relief of limited anticipatory bail of transitory nature in the third State.

In the present case, the husband and his family members sought the relief of anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 (‘CrPC’) before the Bengaluru Court, which the Court allowed. Being aggrieved by the grant of anticipatory bail to the husband and his family, the wife filed a petition before is Court, which came to be dismissed as withdrawn on 17-02-2023 with liberty to pursue her legal remedies. Thereafter, the present Special Leave to Appeal came to be filed and notice was issued by this Court on 17-03-2023.

Issues:

• 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?

• Whether the practice of granting transit anticipatory bail or interim protection to enable an applicant seeking anticipatory bail to make an application under Section 438 of the CrPC before a Court of competent jurisdiction is consistent with the administration of criminal justice?

Analysis:

The Court took note of Section 2(e) of the CrPC, which defines “High Court”, and of Section 2(j) , which 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. A Court of competent jurisdiction is referred to in Section 41-A of the CrPC, wherein a police officer is empowered to arrest a person who fails to comply with a notice for arrest subject to the orders of such Court. Further, Section 177 of the CrPC mandates that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.

The Court culled out salient features of Section 438 CrPC and discussed the evolution of the safeguard of anticipatory bail.The Court further discussed the position of law overseas.

Further, the Court interpreted Section 438 CrPC, and said that 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 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.

Furthermore, it said that the fundamental right to personal liberty and access to justice, which are constitutionally recognised and statutorily preserved through the presence of jurisdiction with superior Courts, would be undermined through such a restrictive interpretation. While construing a statute, constitutional Courts are obliged to render a contextually sensitive construction that preserves and furthers core constitutional values.

As per the Court if the Parliament intended that the expression ‘the High Court or the Court of Session’, to mean only the Court that takes cognizance of an offence, then the Parliament would have made this abundantly clear. The omission of any qualification of the expression ‘the High Court or the Court of Session,’ ought to be constructed in a fashion that furthers the constitutional ideal of safeguarding personal liberty. 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.

The Court noted that the expression ‘anticipatory bail’ is not defined in the CrPC, though it is traceable to Section 438 of CrPC. What is required for invocation of power under Section 438 is that the person seeking anticipatory bail should show reasonable belief of imminent arrest. If the expression ‘anticipatory bail’ is not a defined expression, then it is quite but natural that the larger expression ‘transit anticipatory bail’ would not find any exposition in the CrPC. As per the Court, 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 primary purpose of such a transit remand is to enable the police to shift the person in custody from the place of arrest to the place where the matter can be investigated. It appears that from the aforesaid requirement of transit remand, has arisen the necessity of ‘transit anticipatory bail’ for, an affected person cannot be without a remedy.

The Court viewed that considering the constitutional imperative of protecting a citizen’s right to life, personal liberty and dignity, the High Court or the Court of Session could grant limited anticipatory bail in the form of an interim protection under Section 438 of CrPC in the interest of justice with respect to an FIR registered outside the territorial jurisdiction of the said Court, but subject to certain conditions.

Conditions

1. Prior to passing an order of limited anticipatory bail, the investigating officer and public prosecutor who are seized of the FIR shall be issued notice on the first date of the hearing, though the Court in an appropriate case would have the discretion to grant interim anticipatory bail.
2. 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 on the status of the investigation.
3. The jurisdiction in which the cognizance of the offence has been taken does not exclude the said offence from the scope of anticipatory bail by way of a State Amendment to Section 438 of CrPC.
4. 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. The grounds raised by the applicant may be-
   • Reasonable and immediate threat to life, personal liberty and bodily harm in the jurisdiction where the FIR is registered;
   • The apprehension of violation of right to liberty or impediments owing to arbitrariness;

   • The medical status/ disability of the person seeking extraterritorial limited anticipatory bail.

However, the Court reiterated that such power to grant extra-territorial anticipatory bail should be exercised in exceptional and compelling 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. Further, the Court, while considering such an application for extra-territorial anticipatory bail, if deems fit, may grant interim protection instead for a fixed period and direct the applicant to make an application before a Court of competent jurisdiction.

The Bench has also set aside the judgments in Syed Zafrul Hassan v. State, 1986 SCC OnLine Pat 3 and Sadhan Chandra Kolay v. State, 1998 SCC OnLine Cal 382 , to the extent that they hold that the High Court does not possess jurisdiction to grant extra-territorial anticipatory bail i.e., even a limited or transit anticipatory bail.

Moreover, the Court was concerned that forum shopping may become the order of the day, as the accused would choose the most convenient Court for seeking anticipatory bail. This would also make the concept of territorial jurisdiction which is of importance under the CrPC pale into insignificance. Therefore, it said that, 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. Such a link with the territorial jurisdiction of the Court could be by way of place of residence or occupation/work/profession.

Thus, the Bench clarified that the accused cannot travel to any other State only for the purpose of seeking anticipatory bail. 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. Also there must be a reason to believe or an imminent apprehension of arrest for a non-bailable offence made out by the accused for approaching the Court within whose territorial jurisdiction the FIR is not lodged or the inability to approach the Court where the FIR is lodged immediately.

After perusing Section 438 of CrPC, the Court do not find that the expression “the High Court” or “the Court of Session” is restricted vis-à-vis the local limits or any particular territorial jurisdiction. However, it clarified that this does not mean that if an FIR is lodged in one State, then the accused can approach the Court in another State for seeking anticipatory bail. He can do so only if at the time of lodging of the FIR in any State, he is residing or is present there for a legitimate purpose in any other State.

Thus, the Court said that the accused cannot seek full-fledged anticipatory bail in a State where he is a resident, when the FIR has been registered in a different State. But, he would be entitled to seek a transit anticipatory bail from the Session Court or High Court in the State where he is a resident which necessarily has to be of a limited duration to seek regular anticipatory bail from the Court of competent jurisdiction.

Thus, the Court set aside the impugned orders of the Bengaluru Court. However, in the interest of justice, it directed that no coercive steps may be taken against the husband for the next four weeks, to enable them to approach the jurisdictional Court in Rajasthan for anticipatory bail.

[Priya Indoria v State of Karnataka , 2023 SCC OnLine SC 1484, decided on 20-11-2023]

*Judgment Authored by: Justice BV Nagarathna

Justice BV Nagarathna: Igniting Hope for the First Ever Woman Chief Justice of India

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