Priya Indoria vs The State Of Karnataka

2023 INSC 1008 REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. _____________ OF 2023 (Arising out of SLP(Crl.) Nos.11423-11426 of 2023) (Arising out of Diary No.7943 of 2023)

PRIYA INDORIA …..APPELLANT

VS.

STATE OF KARNATAKA AND ORS. ETC. …..RESPONDENTS

JUDGMENT

NAGARATHNA, J.

Leave granted.

Bird’s Eye View of the Controversy:

2. We begin this Judgment by an illustration:

A person allegedly under intoxication beats another person with an

iron rod in the State of Goa. The victim of the attack is injured. The

alleged assailant travels to Rourkela, Odisha, where he is working in a

factory. Meanwhile, the family of the injured registered a First

Information Report (FIR) for the offence of causing grievous hurt under Signature Not Verified Digitally signed by RADHA SHARMA Date: 2023.11.20 17:31:03 IST Reason: Section 326 of the Indian Penal Code (IPC) at the Bicholim Police Station,

Goa. On coming to know about the same and apprehending his arrest,

1 the alleged assailant files an application for anticipatory bail before the

District and Sessions Judge, Sundargarh, Odisha, having jurisdiction

over Rourkela. Whether the alleged assailant’s application is

maintainable or not? Such a question has come for consideration before

this Court in the present appeal.

Facts of the case:

2.1. The present appeals have been filed by the complainant-wife,

against the orders dated 07.07.2022 passed by the learned Additional

City Civil and Sessions Judge Bengaluru City in Criminal Misc. No.

3941/2022, 3943/2022, 3944/2022 and 3945/2022. By the said

orders, the learned Additional City Civil and Sessions Judge Bengaluru

City has granted anticipatory bail to the accused-husband and his

family namely, accused Nos. 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.

2.2. In view of the above, we take note of the social reality of criminal

complaints relating to dowry harassment, cruelty and domestic violence

arising out of unsuccessful matrimonial relationships. With the

increasing migration of young people for marital and career prospects,

supplemented by the forces of economic liberalization, a significant

number of couples hail from two different States, with the corollary

2 being that the matrimonial home of a complainant-wife is located in a

different State from where her parental home is located.

3. According to the complainant-wife (appellant herein), the facts

giving rise to the present appeal, in a nutshell as gathered from the

material on record are:

3.1. The complainant-wife got married to the accused-husband on

11.12.2020 and started living in Bengaluru.

3.2. On 09.11.2021, the accused-husband filed a divorce petition M.C.

No. 5786/2021 under Section 13 of the Hindu Marriage Act, 1955 before

the Principal Judge, Family Court, Bengaluru, Karnataka. Notice was

issued in the divorce petition on 15.11.2021.

3.3. 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.

3.4. The complainant-wife registered a First Information Report (‘FIR’,

for short) being FIR No. 43/2022 for offences under Sections 498A, 406

and 323 of the IPC, at Chirawa Police Station, District Jhunjhunu,

Rajasthan, on 25.01.2022 at 06.07 pm.

3 3.5. At the time of marriage, two younger siblings of the complainant-

wife were still unmarried. The father of the complainant-wife, despite

being a heart patient who had undergone Angioplasty, spent about Rs.

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.

3.6. That the complainant-wife was a victim of harassment, torture and

assault for the demand of dowry. The accused-husband and his family

claimed that they had been cheated because the complainant-wife’s

father had promised to spend one crore rupees for the marriage. The

harassment and torture continued from 11.12.2020 until 06.07.2021.

For less than a year of marriage that the couple spent together, the

accused-husband perpetrated cruelty upon her by frequently

threatening to divorce her and get married for the second time.

3.7. The accused-husband started threatening and abusing the

complainant-wife and stated that the complainant-wife was mentally

and physically incapable of intimate relationships. Additionally, he

slapped the complainant-wife about a month after the marriage and said

that he was not inclined for marriage and preferred to live a free life. He

threatened the complainant-wife that if she wanted to stay together, she

would have to fulfil the dowry demand.

4 3.8. The complainant-wife informed her in-laws, being accused Nos. 2,

3 and 4, about the refusal of the accused-husband to consummate the

marriage and the physical assault committed on her. Allegedly, her in-

laws dismissed her by saying that it was not necessary to have a

relationship with the husband and as such, being a husband, he had

the right to beat her.

3.9. Deeply agonized by this experience, a demand regarding purchase

of a scooter for the accused-husband was met. Rs.1,01,326/- was to be

paid online from complainant-wife’s mother's bank account on

12.02.2021.

3.10. Thereafter, the accused-husband started demanding a car, but the

demand could not be fulfilled. 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.

3.11. Thereafter, on 11.06.2021, the complainant-wife’s father was

forced to bring the complainant-wife back to Chirawa.

3.12. It was averred that goods and valuables worth Rs. 30,00,000/-

were still in possession of the accused-husband and his family. The

complainant-wife was continuously threatened with death by the

5 accused-husband and his family even when she was in her paternal

home in Chirawa. When the complainant-wife came to Chirawa, the

accused-husband through internet call and video, threatened to kill her

if she came to Bengaluru and kept saying all the time that if she came

to Bengaluru, he would get her killed by goons and her dead body would

also not be known.

3.13. The complainant-wife refused to undergo a medical test and noted

that at the time she was thrown out of the accused-husband’s house,

she had shown light blue marks near the neck and shoulder to her

parents but being hopeful of a change in the attitude of the husband,

and affected by social stigma, she did not file any report.

3.14. The Sub-Inspector, Chirawa Police Station, Rajasthan made a note

that from the victim’s report, the offences under Sections 498A, 406 and

323 of the IPC were made out and the investigation was initiated.

We reiterate that the aforesaid details are as narrated by the

complainant and are not our inferences of facts of the case.

Impugned Orders:

The accused-husband and his family members, accused Nos. 2, 3

and 4, sought the relief of anticipatory bail under Section 438 of the

Code of Criminal Procedure, 1973 (‘CrPC’, for short) by filing CRL. MISC.

No. 3941/2022, CRL. MISC. No. 3943/2022, CRL. MISC. No.

6 3944/2022 and CRL. MISC. No. 3945/2022 before the Additional City

Civil and Sessions Judge, Bengaluru City.

4. 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. 2, 3 & 4.

4.1. 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. Both police

stations were represented by the same Public Prosecutor before the

Additional City Civil and Sessions Judge, Bengaluru City.

4.2. The learned Judge noted that the Investigating Officer had

commenced the investigation, conducted mahazar, recorded the

statement of witnesses and completed a major part of the investigation.

It was reasoned that the involvement of the accused-husband and his

family members, being accused Nos. 2, 3 and 4, was yet to be proved.

The learned Judge further reasoned that since the alleged offences were

not punishable with death or imprisonment for life and are to be tried

before the Magistrate, there was absolutely no reason to deny the benefit

of anticipatory bail.

4.3. When the police of Chirawa called upon the accused-husband and

his family members, accused Nos. 2, 3 & 4, it was realised that the

learned Sessions Judge, Bengaluru, had granted them anticipatory bail.

7 This was confirmed by the complainant-wife when she checked the

Court’s website.

4.4. On 09.12.2022, this Court allowed complainant-wife’s Transfer

Petition No.590/22 and transferred the M.C. No. 5786/2021 from the

Principal Judge, Family Court, Bengaluru, to the Court of Additional

District Judge, Chirawa, Jhunjhunu, Rajasthan.

5. Being aggrieved by the grant of anticipatory bail to the accused-

husband and accused Nos. 2, 3 and 4, the complainant-wife filed W.P.

No.48/2023 before this Court, which came to be dismissed as

withdrawn on 17.02.2023 with liberty to pursue her legal remedies.

6. Thereafter, the present Special Leave to Appeal came to be filed

and notice was issued by this Court on 17.03.2023. 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.

8 Submissions:

7. We have heard Sri Vikramjeet Banerjee, Additional Solicitor

General and learned amicus, Sri Kaustav Paul, learned senior counsel

for the complainant-wife, Dr. Manish Singhvi, learned Additional

Advocate General for the State of Rajasthan, Sri V.N. Raghupathy,

learned counsel for the State of Karnataka and Smt. Anjana Sharma,

learned counsel for the accused-husband. We have also perused the

material on record.

7.1. Learned senior counsel Sri Banerjee, while assisting this Court

as an amicus, submitted as under:

i. Section 438 of CrPC has only used the term ‘High Court or the Court

of Session’, as the case may be’ but has not specified whether such

a ‘High Court or the Court of Session’ has to be the same Court

which can take cognizance of the matter or can be any ‘High Court

or Court of Session’ across the country. Therefore, there exists

limited legislative guidance about the power of a Court to grant

anticipatory bail for an offence that is registered outside its

territorial jurisdiction, in other words, whether ‘extra-territorial

anticipatory bail’ can be granted by a High Court or Court of Session

to a person apprehending arrest.

ii. 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

9 ‘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. Learned amicus clarified that

anticipatory bail and ‘transit anticipatory bail’ are different, as the

former may or may not be restricted to a time period, whereas the

latter is always granted for a specific time period, until an applicant

can make an application for anticipatory bail before a Court that

can take ‘cognizance’ of the offence. It was further submitted that

this Court had adopted the ‘transit anticipatory bail’ approach in

State of Assam vs. Brojen Gogol (Dr), (1998) 1 SCC 397 (Brojen

Gogol) and Amar Nath Neogi vs. State of Jharkhand, (2018) 11

SCC 797.

iii. Learned amicus further submitted that this Court in Nathu Singh

vs. State of U.P., (2021) 6 SCC 64 (Nathu Singh) had emphasized

a liberal approach to the grant of anticipatory bail in view of the

serious impact that the unfair denial of the same can have on the

right to life and liberty under Article 21.

iv. 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. In view of the facts

of the present case, it was submitted that the cause of action

essentially arose in the matrimonial home of the parties in

10 Bengaluru, Karnataka and continued in the complainant-wife’s

paternal home in Chirawa, Rajasthan. Therefore, Courts at either

of these places may exercise their jurisdiction.

7.2. Learned senior counsel Sri Paul appearing for the complainant-

wife/appellant herein submitted as follows:

i. The right to fair and impartial investigation and trial of an offence

is a fundamental right not only of the accused but also of the

complainant.

ii. 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.

iii. The complainant-wife could not oppose the bail petition and the

jurisdictional prosecutor from Chirawa, Rajasthan was also absent

during the hearing. That only the Public Prosecutor of Bengaluru

was present at the time of the hearing of the bail petition seeking

anticipatory bail. The said prosecutor neither had the case diary of

the investigation with him nor any assistance from the area police

station where the F.I.R had been lodged. Hence, the impugned

orders may be set aside.

7.3. Learned senior counsel for the State of Rajasthan Dr. Manish

Singhvi submitted as under:

11

i. The existence of territorial jurisdiction is the undergrid of the

institution of any case before a Court of law. The concept of

territorial jurisdiction is of cardinal significance to the

administration of justice. More specifically, both Chapter XIII of the

CrPC and the existing/general criminal jurisprudence recognize

that cognizance of an offence and not the offender is taken. That

this Court in Raghubans Dubey vs. State of Bihar (1967) 2 SCR

423 (Raghubans Dubey) held that the Magistrate takes cognizance

of an offence and not the offender. 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. That, in Dashrath Rupsingh Rathod vs.

State of Maharashtra, (2014) 9 SCC 129, it was observed that

Section 177 of the CrPC postulated that every offence shall

ordinarily be inquired into and tried by a Court within whose local

jurisdiction it was committed.

ii. Elaborating on the scheme of the CrPC, Dr. Singhvi submitted that

Chapter II of the CrPC distributes adjudicatory duties amongst

Magistrates and Courts as per territorial jurisdiction. Section 14 of

the CrPC specifically determines the jurisdiction of local

Magistrate(s). The provisions granting power to take cognizance

(Section 157) or power to investigate (Section 156), are in

12 accordance with the concept of ‘ordinary place of inquiry and trial,’

as stated in Chapter XIII of the CrPC.

iii. Therefore, the Court under whose territorial jurisdiction the offence

was committed becomes the Court of competent jurisdiction to pass

all orders, including bail and anticipatory bail. That the language of

Section 167(2) mandating a judicial order for the detention of an

accused beyond 24 hours, mentions ‘nearest Magistrate’ and not

Magistrate of competent jurisdiction. The nearest Magistrate, while

possessing the power to extend custody up to 15 days, does not

have the power to grant bail as the same power is reserved only for

the Magistrate who is competent to commit the case for trial. 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. It was contended that the word ‘the’ cannot be given so

liberal a construction that it becomes indistinguishable from ‘any.’

iv. Learned senior counsel apprised this Court that even after the

introduction of the provision of anticipatory bail in the CrPC in

1973, many States, such as Uttar Pradesh, did not have the said

13 provision for decades altogether. It was further pointed out that

practical difficulties such as forum shopping may arise from the

treatment of anticipatory bail as analogous to a fundamental right.

The difficulty would arise if a High Court would grant pre-arrest bail

for an offence committed in a State where the provision for

anticipatory bail does not exist. This may lead to a situation where

the High Court or the Court of Session would not have the

advantage of the stance of the investigating agency or the assistance

of the public prosecutor while adjudicating applications for grant of

anticipatory bail. In view thereof, it was submitted that the High

Court judgements, In Re: Benod Ranjan Sinha, 1981 SCC Online

Cal 102 (In Re: Benod Ranjan Sinha), L.R. Naidu (Dr.) vs. State

of Karnataka, 1983 SCC OnLine Kar 206 (L.R. Naidu) and N.K.

Nayar vs. State of Maharashtra, 1985 Cri LJ 1887 (N.K.

Nayar), permitting the grant of anticipatory bail for an offence

committed outside their jurisdiction, should be set aside. To

buttress his contention, learned senior counsel submitted that the

Justice V.S. Malimath Committee Report on Reforms in Criminal

Justice System, in section 7.33, page 121, had proposed that the

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.

14 v. 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 enshrined 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. It was submitted that in an age where the movement of a

citizen is frequent and fast, an offender may apprehend arrest even

with respect to a statement made in a place of residence in one

State, but the offended person may be residing in another State.

vi. Learned senior counsel further contended that in order to prevent

the abuse of the process of law, this Court may hold that interim

protection for a limited period could be granted by the Court nearest

to the residence of the accused apprehending arrest. However, in

order to prevent forum shopping, certain safeguards were also

suggested for availing grant of interim protection as follows:

a. The person must show some residence proof to establish that

he/she had been residing in the area in which the interim

protection is sought;

15 b. 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. The interim protection should not exceed a period of fourteen

days under normal circumstances;

d. The concerned public prosecutor of the Court wherein interim

application is moved may be informed in advance about the

filing of the interim protection application. The public

prosecutor after looking at the nature of the interim protection

application, may contact the concerned police station and seek

information about the stage and nature of the investigation of

the crime committed;

e. The limited duration of the interim protection to secure the

liberty of the individual from arrest in an alleged frivolous case

would also ensure that the regular anticipatory bail is only

granted by a Court of competent jurisdiction; and

f. Interim protection should not be granted unless the

requirements enumerated under Section 438 of CrPC are

satisfied.

7.4. 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.

16 7.5. Smt. Anjana Sharma, learned counsel for the accused-husband

submitted as under:

i. The complainant-wife had filed a frivolous FIR against him and his

family members based on false allegations and accusations. It is

alleged that the sole objective of complainant-wife is to extort money

as the accused-husband had refused to pay an amount of Rs.

50,00,000/-.

ii. That the anticipatory bail applications had been filed for securing

protection from immediate arrest as the liberty of the petitioner was

at stake and instant protection was necessary to protect his

fundamental rights.

iii. That the apprehension of arrest was during the subsistence of the

COVID-19 pandemic and he was under continuous pressure and

threat of being arrested. The accused-husband being the only

earning member having a younger brother and an elderly ailing

father, was compelled to seek protection of his life and limb because

the complainant-wife’s father had influential local contacts in the

place where the FIR was registered, i.e., Chirawa, Rajasthan. There

was a reasonable apprehension of his arrest, which was the guiding

factor in filing the application before the Bengaluru Court.

iv. 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. It was further contended that the FIR was filed in

17 Chirawa Police Station with the sole objective of causing

harassment to accused-husband and his family as the alleged

offences were committed in Bengaluru. That the complainant-wife

is familiar with Bengaluru as even earlier, she was working with a

Mumbai-based company in Bengaluru.

Points for Consideration:

8. Having heard learned amicus and senior counsel and counsel

for the respective parties and on perusal of the material on record, the

following points would emerge for our consideration:

i. 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?

ii. 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?

iii. What order?

The aforesaid questions shall be considered together as they are

intertwined.

18 Legal Framework:

9. Before discussing the points for consideration in the present

appeal, the relevant provisions of the CrPC are exposited as under:

9.1. Section 2(e) of the CrPC defines "High Court" to mean ‘the High

Court for that State,’ in relation to any State. In relation to the Union

Territory, it is defined as that High Court for a State to which the Union

Territory’s jurisdiction has been extended. In case of any other Union

territory, it means the highest Court of criminal appeal for that territory

other than the Supreme Court of India.

9.2. 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 14 of the CrPC states

that the local jurisdiction of a magistrate shall be confined to the limits

defined by the Chief Judicial Magistrate. Section 9 of the CrPC mandates

that the State Government shall establish a Court of Session to be

presided over by a judge appointed by the High Court.

9.3. A Court of competent jurisdiction is referred to in Section 41A 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. This is a Court that is competent to try the case. Section 167(2)

empowers the nearest Magistrate to authorize the custody of an accused

for a period not exceeding 15 days, once he is produced before him,

19 whether it is a Court of competent jurisdiction to try the case or not. If

the Magistrate has no jurisdiction to try the case or commit it for trial,

and considers further detention unnecessary, he may order the accused

to be forwarded to a Magistrate having such jurisdiction. 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.

9.4. 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. In case of uncertainty or

ambiguity regarding the local areas where an offence is committed,

Section 178 postulates that it may be inquired into or tried by a Court

having jurisdiction over any of such local areas where the offence, or

part thereof, may have been committed. Section 179 states that when

the consequence of the offending act ensues, it may be inquired into or

tried by a Court within whose local jurisdiction such thing has been

done or such consequence has ensued.

9.5. Having regard of the aforesaid statutory framework, it would be

apposite to distillate the core aspects of Section 438 of CrPC pertaining

to grant of anticipatory bail which reads as under:

“438. Direction for grant of bail to person apprehending arrest.-

20 (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 of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.

(1A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such 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 shall be finally heard by the Court.

(1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.

21 (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.

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such 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 shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under Sub-Section (1).

(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).”

9.6 The salient features of Section 438 of CrPC can be culled out as

under:

22

i. It confers a statutory right upon any person who has a reason to

believe that he may be arrested in relation to the commission of a

non-bailable offence.

ii. The statutory right consists of the right to apply before the High

Court or the Court of Session for a direction that in the event of

such arrest, he shall be released on bail.

iii. 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.

iv. The substantive factors consist of the nature and gravity of the

accusation, the criminal antecedents of the applicant, the risk of

the applicant absconding from justice or not cooperating with the

criminal justice administration and the possibility of an accusation

made in bad faith with the aim of injuring or humiliating the

applicant.

v. In addition to the aforementioned substantive factors guiding the

exercise of judicial discretion, Section 438 of CrPC engrafts certain

procedural requirements. 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. However, the proviso to Section 438(1) of CrPC provides that

if such an interim order is denied, the officer in-charge of a police

station is at liberty to arrest the applicant without warrant. Even if

23 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. The Court is also empowered under

Section 438 (1B) of CrPC to allow the Public Prosecutor’s application

to make the presence of the applicant seeking anticipatory bail

obligatory at the time of final hearing, if the Court deems such

presence necessary in the interest of justice.

vi. The High Court or the Court of Session, under Section 438(2) of

CrPC, is further empowered to pass any such conditions in light of

the facts of a particular case, including

a) A condition that the person shall make himself available for

interrogation by a police officer as and when required;

b) 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;

c) a condition that the person shall not leave India without the

previous permission of the Court;

24

d) such other condition as may be imposed under Sub-Section

(3) of section 437, as if the bail is being granted under that

Section.

vii. 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. If a Magistrate taking cognizance of an offence

decides that a warrant should be issued in the first instance against

that person, he is empowered to issue a bailable warrant in

conformity with the direction of the Court under Section 438(1).

viii. 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.

ix. The State Legislatures of Maharashtra, Odisha, Uttar Pradesh and

West Bengal have enacted State amendments to Section 438 of

CrPC.

Evolution of the Safeguard of Anticipatory Bail:

10. In Shri Gurbaksh Singh Sibbia vs. State of Punjab, (1980) 2

SCC 565 (Gurbaksh Singh Sibbia), a Constitution Bench of this Court

speaking through Chandrachud, C.J., observed that society has a vital

25 stake in preserving personal liberty as well as investigational powers of

the police and their relative importance at any given time depends upon

the complexion and restraints of political conditions. How best to

balance these interests while determining the scope of Section 438 of

CrPC was the focus of the said case while dealing with the historical

background of the said provision.

10.1 The question of the grant of pre-arrest or anticipatory bail fell for

consideration in the era when the Code of Criminal Procedure, 1898 was

in vogue and the grant of such bail was governed by Sections 497 and

498 of the erstwhile Criminal Procedure Code. 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 deceased

had been found lying dead at night on the footpath and while at the

inquest certain unknown persons were suspected, the Magistrate issued

warrants when evidence casting suspicion on four individuals was

produced. Therefore, the suspected individuals petitioned the Calcutta

High Court for grant of bail. The Division Bench of Justices Mitra and

Coxe granted pre-arrest bail to the suspected individuals. 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. It was noted that

26 the yardstick for the grant of relief of bail was whether there existed

reasonable grounds to believe that the accused were guilty of the

offence. It was underlined that it was within the Magistrate’s jurisdiction

to release the accused persons on bail but since the Magistrate did not

consider the inconsistencies in the evidence produced to implicate four

different accused for the same crime, the High Court could correct the

Magistrate’s failure to exercise his jurisdiction.

10.2 The decision of the Calcutta High Court was followed by the Full

Bench of the Lahore High Court in Hidayat Ullah Khan vs. The

Crown, AIR 1949 Lah 77 wherein the petitioners being apprehensive

of institution of criminal proceedings had outlined reasons for the

apprehension and sought pre-arrest bail till the disposal of the trial. The

petitioners had averred that such arrest would amount to victimization,

and would be a cause of disgrace and dishonour to them. Justice

Cornelius underlined that the proposed prosecution was not in good

faith and that one of the petitioners was suffering from certain illnesses.

The Crown had challenged the competence of the High Court to grant

bail in anticipation of arrest, and that had occasioned the reference of

the question from the Single Judge to the Full Bench. 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?”

27 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 laid emphasis on the distinction between the jurisdiction of the

police officer or Magistrate under Section 497 of the erstwhile Criminal

Procedure Code ‘to release on bail’ and that of the High Court under

Section 498 of the erstwhile Criminal Procedure Code, to ‘direct that any

person be admitted to bail.’ The Full Bench reasoned that the distinct

use of a wide expression signified that the High Court’s power includes

not merely a power to revise the exercise of discretion by police-officers

and Courts of first instance where bail has been refused, but also

include clearly a power in the High Court to grant bail to persons to

whom the police and the Courts of first instance are not permitted by S.

497 to grant bail, including those persons who are not in custody. 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 Full Bench held that the Court needs to be satisfied that if it stayed

its hands until the police-officer had himself exercised his discretion in

the matter and refused, upon arrest, to grant bail, a grave or irreparable

28 wrong or injustice might result, while at the same time preserving the

interest of justice in so far as they related to the charge against such an

accused person.

10.4 It is observed that the CrPC, 1898 did not contain any specific

provision corresponding to the present Section 438 of CrPC. Under the

old Code, there was a sharp difference of opinion amongst the various

High Courts on the question of whether Courts had the inherent power

to pass an order of bail in anticipation of arrest, the preponderance of

view being that it did not have such power.

10.5 The concept of ‘anticipatory bail’ was clearly explicated vide the

41st Law Commission Report in the year 1969, whereby the Law

Commission observed as such:

“39.9. 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 necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false causes for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.

29 We recommend the acceptance of this suggestion.

We are further of the view that this special power should be conferred only on the High Court and the Court of Session, and that the order should take effect at the time of arrest or thereafter.” (emphasis added by us) 10.6 Thereafter, the 48th Law Commission of India Report, 1972 titled

‘Some questions under the Code of Criminal Procedure Bill, 1970’

discussed the legislative proposal for inclusion of a provision for the

grant of anticipatory bail. The Law Commission termed the same to be

a ‘useful addition’ while adding a caveat that it ought to be exercised

only in very exceptional cases. The Commission opined that the initial

order should only be an interim order. That reasons for grant of the relief

must be recorded and the Court ought to be satisfied that the direction

is necessary in the interest of justice. 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.’

10.7 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”. The powerful processes of criminal

law can then be perverted for achieving extraneous ends. Attendant

30 upon such investigations, when the police are not free agents within

their sphere of duty, is a great amount of inconvenience, harassment

and humiliation that can even take the form of the parading of a

respectable person in handcuffs, apparently on way to a Court of justice.

The foul deed is done when an adversary is exposed to social ridicule

and obloquy, no matter when and whether a conviction is secured or is

at all possible. It is in order to meet such situations, though not limited

to these contingencies, that the power to grant anticipatory bail was

introduced into the Code of 1973.

10.8 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. This

Court in Balchand Jain observed that “anticipatory bail” means “bail

in anticipation of arrest.” This Court has exposited that an application

for anticipatory bail could be made by the accused either at a stage

before an FIR is filed or at a stage when an FIR is registered but the

charge sheet has not been filed, and the investigation is underway.

Alternatively, it can be moved after the completion of investigation. The

stage of investigation has a bearing on the conditions to be imposed

while granting the relief of anticipatory bail.

31 10.9 A crucial difference between the pre-arrest bail order under

Section 438 of CrPC and the bail order under Sections 437 and 439 of

CrPC is the stages at which the bail order is passed.

11. Greater clarity on the contours of judicial discretion in the grant

of pre-arrest bail emerged out of the judgement of the Full Bench of the

Punjab and Haryana High Court in Gurbaksh Singh Sibia vs. State

of Punjab, 1977 SCC OnLine P&H 157. 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. The said judgment was carried in appeal before this

Court. Thereafter, the law on anticipatory bail was further crystallized

by the Constitution Bench of this Court in Gurbaksh Singh Sibbia,

where it disagreed with the reasoning of the Full Bench of Punjab and

Haryana High Court.

11.1 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. It was

observed that Section 438 of CrPC is a procedural provision which is

concerned with the personal liberty of the individual, who is entitled to

the benefit of the presumption of innocence since he is not, on the date

32 of his application for anticipatory bail, convicted of the offence in respect

of which he seeks bail. An over-generous infusion of constraints and

conditions which are not to be found in Section 438 of CrPC can make

its provisions constitutionally vulnerable since the right to personal

freedom cannot be made to depend on compliance with unreasonable

restrictions. The beneficent provision contained in Section 438 of CrPC

must be saved, not jettisoned. The considerations for grant of

anticipatory bail were discussed in paragraph 31 of the said judgment

which reads as under:

“31. 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. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the Court while granting or rejecting anticipatory bail. 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

33 considerations which the Court has to keep in mind while deciding an application for anticipatory bail.”

11.2 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.

Ultimately, the Constitution Bench clarified the following points in

paragraphs 35 to 39 which are extracted as under:

“35. Section 438(1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has “reason to believe” that he may be arrested for a non- bailable offence. The use of the expression “reason to believe” shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere ‘fear’ is not ‘belief”, for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. 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. Section 438(1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applications for anticipatory bail will be as large as, at any rate, the adult populace. Anticipatory bail is a device to secure the individuals liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely.

34

36. Secondly, if an application for anticipatory bail is made to the High Court or the Court of Session it must apply its own mind to the question and decide whether a case has been made out for granting such relief. It cannot leave the question for the decision of the Magistrate concerned under Section 437 of the Code, as and when an occasion arises. Such a course will defeat the very object of Section 438.

37. Thirdly, the filing of a first information report is not a condition precedent to the exercise of the power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed.

38. Fourthly, anticipatory bail can be granted even after an FIR is filed, so long as the applicant has not been arrested.

39. Fifthly, the provisions of Section 438 cannot be invoked after the arrest of the accused. The grant of “anticipatory bail” to an accused who is under arrest involves a contradiction in terms, insofar as the offence or offences for which he is arrested, are concerned. 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.”

11.3 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. Otherwise, a blanket

order of anticipatory bail is bound to cause serious interference with

both the right and the duty of the police in the matter of investigation

35 because regardless of what kind of offence is alleged to have been

committed by the applicant, when an order of bail comprehends

allegedly unlawful activity of any description whatsoever, this will

prevent the police from arresting the applicant even if he commits, say,

a murder in the presence of the public. 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. The power should

not be exercised in a vacuum.

12. While adjudicating on a question as to whether the protection

granted under Section 438 of CrPC should be limited to a fixed period

so as to enable the person to surrender before the trial Court or not, a

Constitution Bench of this Court in Sushila Aggarwal took note of later

doctrinal developments as well as reports of the Law Commission of

India. In this case, two questions were considered by the Constitutional

Bench:

1. Whether the protection granted to a person under Section 438 of

CrPC should be limited to a fixed period so as to enable the person

to surrender before the trial Court and seek regular bail?

2. Whether the life of an anticipatory bail order should end at the time

and stage when the accused is summoned by the Court?

12.1 Regarding the first question, this Court held that the protection

granted to a person under Section 438 of CrPC should not invariably be

36 limited to a fixed period; it should enure in favour of the accused without

any restriction on time. Normal conditions under Section 437(3) read

with Section 438(2) of CrPC should be imposed. If there are specific facts

or features in regard to any offence, it is open for the Court to impose

any appropriate condition (including fixed nature of relief, or its being

tied to an event), etc.

12.2 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. Again, if there are any special or peculiar features necessitating

the Court to limit the tenure of anticipatory bail, it is open for it to do

so.

12.3 The following clarifications were also issued which are to be borne

in mind while dealing with an application under Section 438 of CrPC:

“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. The application should contain bare essential facts relating to the offence, and why the applicant reasonably apprehends arrest, as well as his side of the story. This is necessary in order to evaluate the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed. An application should be moved prior to the filing of an FIR, so long as the facts are clear and there is reasonable basis for apprehending arrest.

37

b) It is advisable for the Court, to issue notice to the Public Prosecutor and obtain facts, even while granting limited interim anticipatory bail.

c) Nothing in Section 438 CrPC, compels or obliges Courts to impose conditions limiting relief in terms of time, or upon filing of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc. The Court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc. By virtue of Section 438(2), the Courts would be justified and ought to impose conditions spelt out in Section 437(3). Conditions which limit the grant of anticipatory bail may be imposed, depending on the facts of the case but not be invariably imposed.

d) Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case. 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.

e) Anticipatory bail granted can, depending on the conduct and behaviour of the accused, continue after filing of the charge-sheet till the end of trial.

f) 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. It must be confined to the particular offence or offences relatable to an incident, for which apprehension of arrest is sought. It cannot operate in respect of a future incident that involves commission of an offence.

g) The grant of an anticipatory bail does not in any manner limit or restrict the rights or duties of the

38 police or investigating agency, to investigate into the charges against the person who seeks and is granted pre-arrest bail.

h) The observations in Gurbaksh Singh Sibbia regarding limited custody or deemed custody in the context of Section 27 of the Evidence Act, does not require the accused to separately surrender and seek regular bail.

i) 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, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc.

j) The correctness of an order granting bail can be considered by the appellate or superior Court at the behest of the State or investigating agency, and set aside the same on the ground that the Court granting it did not consider material facts or crucial circumstances. This does not amount to cancellation in terms of Section 439(2) CrPC.

k) In Siddharam Satlingappa Mhetre vs. State of Maharashtra, (2011) 1 SCC 694 (and other similar judgments), it was held that no restrictive conditions at all can be imposed, while granting anticipatory bail are hereby overruled. Likewise, the decision in Salauddin Abdulsamad Shaikh vs. State of Maharashtra, (1996) 1 SCC 667 and subsequent decisions which laid down restrictive conditions, or terms limiting the grant of anticipatory bail, to a period of time were overruled.”

13. In Nathu Singh, the complainants filed a Special Leave Petition

challenging the order of the High Court of Judicature at Allahabad,

which dismissed the anticipatory bail application filed by the accused

39 and on granting them 90 days to surrender before the trial Court and to

seek regular bail, granted them protection from coercive action during

the said period of 90 days.

13.1 The Court after referring to the Constitution Bench Judgment in

the case of Sushila Aggarwal considered the proviso to Section 438(1)

of CrPC and observed that the proviso does not create any rights or

restrictions. It is only clarificatory in nature. 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. It was observed

that if such an order has to be passed, it must be narrowly tailored to

protect the interests of the applicant while taking into consideration the

concerns of the investigating authority and must be supported by

reasons.

13.2 It was held that in the impugned order of the High Court, it had

dismissed the application seeking anticipatory bail on the basis of the

nature and gravity of the offence by not granting protection from arrest

40 without assigning any reason. 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. A period of 90 days, or three months, is an

unreasonable period. Therefore, the impugned orders were set aside

leaving it open to the investigating agency to proceed with the matters

in accordance with law and complete the investigation. If the applicants

were in the meanwhile in judicial custody, their applications for regular

bail could be considered by the competent Court, uninfluenced by the

observations made in the order.

14. After marshalling the entire range of juridical materials on the

subject of anticipatory bail and the perception of its abuse, the

Constitution Bench in Sushila Aggarwal held the judgements of this

Court that postulated greater limitations on the grant of anticipatory

bail to be not good law.

15. The upshot of the above discussion is that the march of criminal law

has been towards chiselling an equitous remedy that strikes a delicate

balance between the imperative of personal liberty with that of effective

administration of criminal law.

41

16. 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.

Accordingly, it held that the anticipatory bail application ought to be

made before the Gauhati High Court as the alleged activities had been

perpetrated within its territorial jurisdiction. Consequently, this Court

set aside the impugned order of the Bombay High Court granting

anticipatory bail on the ground that the prosecuting agency was not

heard. However, this Court held that it did not think it necessary to

decide whether the Bombay High Court had jurisdiction to entertain the

anticipatory bail application. It was held that status quo would be

maintained until the High Court of Gauhati passed appropriate order(s)

on the anticipatory bail application.

(ii) This Court also had the occasion to adjudicate upon Teesta Atul

Setalvad vs. State of Maharashtra, Special Leave Petition

(Criminal) No. 1770 of 2014, whereby the applicant seeking extra-

territorial anticipatory bail had appealed against the Bombay High

Court’s order. 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

42 as to enable the same. This Court disposed of the Special Leave Petition

No. 1770 of 2014 on 24.02.2014 without interfering with the Bombay

High Court’s judgement while observing that the question of law about

the jurisdiction of the High Court was kept open.

(iii) Therefore, the present appeal constitutes the third of the cases

where this crucial question of public importance has been raised before

this Court by the appellant who is the complainant.

Discussion:

17. 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. Pritam Singh vs. Delhi High Court The High Court allowed State of Punjab, regarding FIR accused’s plea under 1980 SCC registered in the Section 438 of CrPC and OnLine Del 336 State of Punjab directed that the accused be (Pritam Singh) released in the event of arrest upon furnishing personal bond and surety. It was reasoned that one need not mix up the jurisdiction relating to cognizance of an offence with that of granting bail. Bails are against arrest and detention. Therefore, an appropriate Court within whose jurisdiction the arrest takes place or is apprehended or is contemplated will also have jurisdiction to grant bail to the person concerned. If the Court of Session or the High

43 Case Name High Court Outcome and Reasoning Court has the jurisdiction to grant interim bail, then the power to grant full anticipatory bail will emanate from the same jurisdiction. Concurrent jurisdiction in Courts situated in different States is not outside the scope of the CrPC. It is not possible to divide the jurisdiction under S. 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.

2. In Re: Benod Calcutta High The High Court granted Ranjan Sinha, Court regarding relief under Section 438 of 1981 SCC FIR registered in the CrPC to the petitioner Online Cal 102 the State of therein and reasoned that it (In Re: Benod Bihar. has jurisdiction to entertain Ranjan Sinha) the application for anticipatory bail of a petitioner who resides within the jurisdiction of the said Court, though he apprehends arrest in connection with a case which has been initiated outside the jurisdiction of this Court.

3. L.R. Naidu (Dr.) Karnataka High The anticipatory bail vs. State of Court regarding applicant was granted Karnataka, FIR registered in protection from arrest with 1983 SCC the State of the direction that upon a OnLine Kar 206 Kerala future arrest, he shall be (L.R. Naidu) released on bail on his

44 Case Name High Court Outcome and Reasoning executing a bond of a sum of Rs. 3,000/- with a surety in a like sum to the police’s satisfaction. He was directed to approach the appropriate Court in Kerala State within twenty days from the date of his arrest by the Cannanore Police. 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. In case the petitioner does not make any application the order would cease to be in force thereafter i.e., from the 21st day of his arrest.

4. C.L. Mathew vs. Kerala High The High Court granted

Govt. of India, Court regarding anticipatory bail. It noted 1984 SCC offences that an offence may be Online Ker 207 committed in committed in one State and (C.L. Mathew) Jamshedpur, that the applicant may Bihar. reside in another State; or he may have residence in several States. He may be arrested while he is on the move, after committing the crime, before he reaches his place of residence in another State. It cannot be that he can be armed with orders of anticipatory bail from every High Court; it cannot also be that conflicting orders are issued by different High Courts in respect of the same offence and in respect of the same alleged offender.

A balance has therefore to be struck keeping in view the constitutional guarantee

45 Case Name High Court Outcome and Reasoning under Articles 21 and 22, the procedural safeguards under the Criminal Procedure Code and the jurisdiction conferred on the High Courts in India. It was concluded that the High Court of the State will have to restrict the scope of the relief of anticipatory bail to arrests made within that State. Arrests made outside the State will thus not be protected by an order under S. 438 of CrPC unless the offence itself is alleged to be committed within the State.

5. N.K. Nayar vs. Bombay High The High Court laid State of Court with emphasis on the expression Maharashtra, respect to an FIR ‘apprehension of arrest’ and 1985 Cri LJ registered in held that if the arrest is 1887 Haryana. likely to be affected within a (N.K. Nayar) 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.

6. Syed Zafrul Patna Bench of The High Court denied the Hassan vs. the Patna High relief and reasoned that an State, 1986 Court with application under Sec. 438 SCC Online Pat 3 respect to FIR of CrPC cannot be (Syed Zafrul registered at entertained in respect of Hassan) Jhinkpani police offences committed in station which another territory for want of falls in the jurisdiction. The High Court district of laid emphasis on ‘the Singhbhum and deliberate designed comes squarely phraseology’ of Section 438 within the of CrPC and reasoned that jurisdiction of "the High Court" or "the the Ranchi Court of Session" cannot be

46 Case Name High Court Outcome and Reasoning Bench of the conflated with "any High Patna High Court" or "any Court of Court. Session". Denying that the word 'the' could be substituted with 'any', the High Court reasoned that such a substitution would be doing ‘plain violence to the specific language’ of Section 438 of CrPC.

7. Sailesh Jaiswal Calcutta High The Full Bench of Calcutta vs. State of West Court High Court held that an Bengal, 1998 application under Sec. 438 SCC Online Cal of CrPC cannot be 215 (Sailesh entertained in respect of Jaiswal) offences committed in another State for want of jurisdiction. The High Court reasoned that the exercise of jurisdiction of anticipatory bail by any other Court namely the High Court or the Court of Session beyond the local limits of their jurisdiction is limited to the extent of consideration of bail for the transitional period. Accordingly, denied relief of anticipatory bail but granted transit anticipatory bail.

8. Sadhan Calcutta High The Court noted that in view Chandra Kolay Court with of Article 214 of the

vs. State, 1998 respect to offence Constitution, the territorial SCC Online Cal committed jurisdiction of a particular 382 (Sadhan outside the State High Court of a particular Chandra Kolay) of West Bengal. State ordinarily shall not be extended to the territory of any other State and exercise of any power or jurisdiction in connection with any matter outside the State 47 Case Name High Court Outcome and Reasoning would be in excess of the power conferred by the law.

Section 438 of CrPC confer special powers only on the Court of Session and the High Court to grant anticipatory bail in the event of arrest by the police. The legislative intention behind this provision is to prevent undue harassment by the police of an innocent citizen or class of citizens. 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. Therefore, it is clear 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. The High Court held that the petition for anticipatory bail under Section 438 of CrPC in connection with an offence in any out-station cannot be entertained by the High Court and as such the petition was not maintainable.

9. Honey Preet Delhi High Court The High Court noted that

Insan vs. State, regarding offence the applicant, a resident of 2017 SCC registered in the Sirsa in Haryana, had Online Del State of Haryana. sought anticipatory bail 10690 (Honey from a Delhi Court by giving Preet Insan) a Delhi address in addition

48 Case Name High Court Outcome and Reasoning to a Sirsa address. The High Court emphasized that it was duty bound to consider whether the applicant is a regular or bona fide resident of a place within the local limits of that Court and the application is not a camouflage to evade the process of law. If the Court is not satisfied on this aspect, the application deserves to be rejected without going into the merits of the case.

The High Court also denied the plea of transit anticipatory bail for period of three weeks to enable the applicant to move the Punjab and Haryana High Court. The High Court reasoned that the applicant was at large and her counsel had refused to undertake to join investigation upon being granted interim protection. Therefore, the High Court concluded that the application is not bona fide and has been filed with a view to gain time.

10. Teesta Atul Bombay High The High Court granted Setalvad vs. Court regarding transit bail for four weeks State of offence and allowed the applicant to Maharashtra, registered in the move before the appropriate ABA No.14/2014 State of Gujarat Court in Gujarat for said (Teesta Atul relief. Setalvad)

11. Gameskraft Karnataka High The High Court recognized Technologies vs. Court regarding that it is a well-settled State of offence proposition of law that Maharashtra, registered in the though the alleged offence

49 Case Name High Court Outcome and Reasoning 2019 SCC State of had not taken place within OnLine Kar 520 Maharashtra. the jurisdiction of the said (Gameskraft Court, it can grant bail Technologies) though it has no jurisdiction. The High Court allowed the application, directing that they must be immediately released if they are arrested, subject to the condition that the applicant ‘shall appear before the jurisdictional Court within 15 days or within 15 days from the date of their arrest by the concerned police whichever was earlier.

12. Surya Pratap Delhi High Court The High Court granted two Singh vs. State regarding offence weeks to the applicant to of Karnataka, registered in the make an appropriate 2019 SCC Online State of application before the Del 9533 (Surya Karnataka. concerned Court. Protection Pratap Singh) was granted for two weeks.

13. Nikita Jacob Bombay High Reasoned that the vs. State of Court regarding imperative of temporary Maharashtra, offence relief to protect liberty and to 2021 SCC registered in New avoid immediate arrest may OnLine Bom Delhi. be relied upon to grant 13919 (Nikita interim bail for an offence Jacob) that was allegedly committed outside the Court’s territorial jurisdiction.

14. Ajay Agarwal Allahabad High The High Court noted that vs. The State of Court regarding transit bail is protection U.P., 2022 SCC offence from arrest for a certain OnLine All 689 registered in the definite period as granted by (Ajay Agarwal) State of the Court granting such Maharashtra. transit bail. Therefore, the Court granted protection to the accused for a period of six weeks to enable him to approach the competent

50 Case Name High Court Outcome and Reasoning Court for seeking appropriate relief.

15. Amita Garg Allahabad High The High Court noted that vs. State of U.P., Court regarding there is no legislation or law 2022 SCC Online offence which defines “transit or All 463 (Amita registered in the anticipatory bail’ in Garg) State of definitive or specific terms. Rajasthan. The said Court explained that the transit anticipatory bail precedes detention of the accused and is effective immediately at the time of the arrest. Transit bail is protection from arrest for a certain definite period as directed by the Court granting such transit bail. 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 regular Court would consider such anticipatory bail, on its own merits and shall decide such anticipatory bail application. Therefore, it could be easily said that transit bail is a temporary relief which an accused gets for a certain period of time. The High Court concluded that there is no fetter on the part of the High Court in granting a

51 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. 16. Manda Bombay High The High Court granted Suresh Parulekar Court regarding transit anticipatory bail with vs. State of Goa, offence respect to an FIR registered 2023 SCC OnLine registered in the in Tardeo, Goa. Without Bom 1568 (Manda State of Goa. adjudicating the merits of Suresh the case, upon considering Parulekar) the factual aspects of the case, protection was granted for a period of four weeks to enable the applicants to approach the concerned Court for appropriate reliefs.

18. The above table is a testament to the rich jurisprudential

discussion that has arisen out of the limited legislative guidance

regarding the expression ‘the High Court or the Court of Session.’ The

analysis of the above case law is as under:

a. 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. Therefore, it held that the application for direction under

Section 438 of CrPC was not maintainable at Patna Bench of the

Patna High Court because the FIR was registered at the Jhinkpani

police station which falls in the district of Singhbhum. The matter

thus came squarely within the jurisdiction of the Bench of the Patna

52 High Court at Ranchi. The High Court stressed on the principle that

a criminal Court takes cognizance of the offence and not of

individual offenders, vide Raghubans Dubey. Therefore, the High

Court emphasized upon the practical difficulties if the jurisdiction

of criminal Court was determined by ‘the shady or evasive

movements of the offender’, there would be ‘judicial chaos and an

inherent conflict betwixt the comity of Courts.’ The High Court

cautioned that if the application for anticipatory bail was

maintainable outside the territorial jurisdiction of the High Court,

‘a fugitive offender may well move from Court to Court ad infinitum

and if he fails in one jurisdiction then on to another until he secures

relief in the last.’

b. 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.

c. The facts in Honey Preet Insan are peculiar to the extent that the

relief of interim protection was denied because the applicant was at

large and had categorically refused to join investigation.

d. At this juncture it may be noted that the aforementioned approach

was supported by the Justice V.S. Malimath Committee’s Report on

53 Reforms in Criminal Justice System. 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.

e. Another set of judgements, such as of the Delhi High Court in

Surya Pratap Singh, Allahabad High Court in Ajay Agarwal,

Amita Garg, Bombay High Court in Teesta Atul Setalvad, Nikita

Jacob and Manda Suresh Parulekar, highlight the transit

anticipatory bail approach. In these cases, the High Court granted

transit bail and ruled that the grant of protection from arrest

beyond the local limits of their jurisdiction is limited to the extent

of consideration of bail for the transitional period. In other words,

the High Courts in their respective judgement has read the scheme

of administration of criminal justice and the provision for

anticipatory bail in a conjoint sense, thereby limiting the relief of

extra-territorial anticipatory bail to a definite interim period.

f. Another line of judgments namely, by the Delhi High Court in

Pritam Singh; Kerala High Court in C.L. Mathew; Bombay High

Court in N.K. Nayar; Calcutta High Court In Re: Benod Ranjan

Sinha and Karnataka High Court in L.R. 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

54 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. The constitutional imperative of safeguarding personal

liberty was emphasised and it was noted that a person may

apprehend arrest at a place including at a place other than the one

within the jurisdiction in which an alleged offence has been

committed. The High Courts in their respective judgments adverted

to the lack of legislative qualification of the expression ‘the High

Court or the Court of Session’ to mean that it extends to any High

Court or Court of Session in whose jurisdiction an arrest is

apprehended by a person against whom an FIR has been filed.

Position of law overseas:

19. 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”. These provisions in the

International Human Rights instruments are a necessary safeguard

against the reality of arbitrary and inhumane deprivation of liberty and

the inability of those thus deprived to benefit from legal resources and

55 constitutional guarantees that they are entitled to for the conduct of

their defence as required by law in any judicial system and by

application of international human rights standards.

20. Comparative legal study on law of criminal procedure presents

India as an exemplar with respect to the provision for pre-arrest bail. It

would be useful to consider how other jurisdictions have dealt with the

issue of pre-arrest bail as under:

(a) Possibly, the only known case of an application for a pre-arrest bail

bond in the United States of America is In re: Sturman, 1984.604

F. Supp. 278. (F. E. Devine (1990) Anticipatory Bail: An Indian Civil

Liberties Innovation, International Journal of Comparative and

Applied Criminal Justice, 14:1-2, 107-114). The U.S. District Court

for the Northern District of Ohio presumed that the applicant’s

motion was made to spare himself of the embarrassment of arrest.

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. The salient facets of

Section 2 are that for an arrest to be lawful, the offence must be one

carrying a penalty of five years imprisonment (an “arrestable

offence”); and there must, at the minimum, be suspicion on

56 reasonable grounds that the person to be arrested either has

committed, is committing or is about to commit the offence. It may

be wielded as a tool to prevent the destruction of evidence,

interference with witnesses or warning accomplices who have yet to

be arrested. 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.

(c) The United Kingdom’s Royal Commission Report on Criminal

Procedure (Philips Commission)(1981) - cited affirmatively by this

Court in Joginder Kumar vs. State of U.P., (1994) 4 SCC 260,

para 17-19 - proposed to restrict the circumstances in which the

police could exercise the power of arrest with warrant to deprive a

person of his liberty to those in which it would genuinely be

necessary to enable them to execute their duties of preventing the

commission of offences, investigating crime, and bringing suspected

offenders before the Courts; and to simplify, clarify and rationalise

the existing statutory powers of arrest, confirming the present

rationale for the use of those powers. It stated as follows:

“In attempting to limit the power of arrest, we have no intention of inhibiting the police from fulfilling their functions of detecting and preventing crime. But we do seek to alter the practice whereby the inevitable sequence that would follow upon the arising of a reasonable suspicion is arrest, followed by being taken to the station, often to be searched, fingerprinted and photographed. The evidence submitted to us supports the view of the Police

57 Complaints Board, expressed in their triennial report, that police officers are so involved with the process of arrest and detention that they fail at times to understand the sense of alarm and dismay felt by some of those who suffer such treatment. Arrest represents a major disruption to the suspect’s life… 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.” (para 3.75)

The Royal Commission underlined the necessity principle to

diminish the possibility of arbitrary arrest, thereby requiring the

police officer receiving the suspect in his custody to enquire as to

whether it would be essential to keep the arrested person at the

police station on the basis of the following criteria:

(i) the person’s unwillingness to identify himself so that a

summons may be served upon him;

(ii) the need to prevent the continuation or repetition of that

offence;

(iii) the need to protect the arrested person himself, or other

persons or property;

(iv) the need to secure or preserve evidence of or relating to that

offence or to obtain such evidence from the suspect by

questioning him; and

58

(v) the likelihood of the person failing to appear at Court to answer

any charge made against him.

(d) The Queen’s Bench in Regina vs. Secretary of State for the Home

Department, Ex Parte LeecH, (1994) Q.B. 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.

(e) In Kenya, while there are no specific provisions on anticipatory bail,

these are instead enshrined in constitutional provisions under the

Bill of Rights. The Constitution of Kenya, 2010 provides for:

(i) Bail of arrested person under Article 49(1)(h)

(ii) Appropriate relief under Article 23(3) for breach of the Bill of

Rights.

Therefore, wherever the remedy has been considered, the

Courts have applied the threshold applicable to an application filed

seeking to prevent the violation or threatened violation of rights

under Articles 23 and 165(3) of the Kenyan Constitution.

(f) 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

59 of great importance and anchored to the right to life and liberty of

a person. The High Court also emphatically reiterated its

constitutional duty to go to the length and breadth of the

Constitution to protect the rights and fundamental freedoms of

Kenyans where need be, but it emphasized the need to be alive to

its obligation not to curtail the other organs of the State from

carrying out their constitutional mandate. Accordingly, the High

Court granted anticipatory bail on the ground that the applicant

therein had been arrested in the past and was out of custody on

bond for a charge that was similar to the charge that she

apprehended the arrest for.

Personal Liberty and Access to Justice:

While we have analysed key judgments of this Court as well as

various High Courts across the country on the pertinent question/issue

raised in this case, we must also look at the same from the angle of

personal liberty and access to justice. 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. For sake of immediate reference, Article 39A is

extracted as under:

“39A. Equal justice and free legal aid.- The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure

60 that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.”

21. A Constitution Bench of this Court in Anita Kushwaha vs.

Pushap Sudan, (2016) 8 SCC 509 held access to justice to be

encompassed within the right to life under Article 21 and observed as

under:

“31. Given the fact that pronouncements mentioned above have interpreted and understood the word “life” appearing in Article 21 of the Constitution on a broad spectrum of rights considered incidental and/or integral to the right to life, there is no real reason why access to justice should be considered to be falling outside the class and category of the said rights, which already stands recognised as being a part and parcel of Article 21 of the Constitution of India. 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 have, therefore, no hesitation in holding that access to justice is indeed a facet of right to life guaranteed under Article 21 of the Constitution. 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. We say so because equality before law and equal protection of laws is not limited in its application to the realm of executive action that enforces the law. It is as much available in relation to proceedings before Courts and tribunal and adjudicatory fora where law is applied and justice administered. The citizen's inability to access Courts or any other adjudicatory mechanism provided for determination of rights and obligations is bound to result in denial of the guarantee contained in Article 14 both in relation to equality before law as well as equal protection of laws. Absence of any adjudicatory mechanism or the inadequacy of such mechanism,

61 needless to say, is bound to prevent those looking for enforcement of their right to equality before laws and equal protection of the laws from seeking redress and thereby negate the guarantee of equality before laws or equal protection of laws and reduce it to a mere teasing illusion. Article 21 of the Constitution apart, access to justice can be said to be part of the guarantee contained in Article 14 as well.”

The Constitution Bench enumerated four facets of access to justice

as:

“33. 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. Therefore, this Court has elevated the provision of a just

adjudicatory forum for a citizen to agitate his grievance and seek

adjudication of what he may perceive as a breach of his right to the level

of a fundamental right. Not only is the adjudicatory forum supposed to

be effective in its functioning and just, fair and objective in its approach,

but it also must be conveniently approachable and affordable by

observing as under:

“35. The forum/mechanism so provided must, having regard to the hierarchy of Courts/tribunals, be reasonably accessible in terms of distance for access to justice since so much depends upon the ability of the litigant to place his/her grievance effectively before the Court/tribunal/Court/competent authority to

62 grant such a relief. (See D.K. Basu v. State of W.B. [D.K. Basu v. State of W.B., (2015) 8 SCC 744 :

(2015) 3 SCC (Cri) 824] )”

23. 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. It was held as under:

“38. Access to justice will again be no more than an illusion if the adjudicatory mechanism provided is so expensive as to deter a disputant from taking resort to the same. 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. The answer to the points for consideration raised herein would

emerge from the construction that is afforded to the expression ‘the High

Court or the Court of Session’ in Section 438 of CrPC. It was submitted

before us that the use of the definite article ‘the’ before High Court and

Court of Session must mean that High Court and that Court of Session

which exercises territorial jurisdiction over the area where an offence

has been committed.

25. It indeed is a trite rule of statutory interpretation that penal

statutes are to be construed strictly. When acts are to be made penal

63 and are to be visited with loss or impairment of life, liberty, or property,

it may well be argued that personal liberty requires clear and exact

definition of the offence. Furthermore, appropriate care must be taken

to adopt an interpretation which makes the textual interpretation match

the contextual. In this regard, the following contextual aspects may be

noted:

a. The CrPC explicitly defines the ‘local limits’ and ‘local jurisdiction’

within which the Magistrate may exercise jurisdiction.

b. Even though the High Court is defined in CrPC, no provision

explicitly defines its territorial jurisdiction which has to be

discerned from the Constitution of India.

c. 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.

d. The mischief that Section 438 of CrPC seeks to remedy is

apprehension of wrongful arrest.

26. Therefore, we ought to provide sufficient amplitude to the

expression ‘reason to believe that he may be arrested’, and look at the

setting in which the words are used and the circumstances under which

the law came to be passed to decide whether something implicit is

behind the words used which controls the literal meaning of such words.

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

64 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.

27. Furthermore, 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.

28. Reliance in this regard may be placed on the dicta of this Court in

Central Inland Water Transport Corporation vs. Brojo Nath

Ganguly, (1986) 3 SCC 156:

“It is thus clear that the principles governing public policy must be and are capable, on proper occasion, of expansion or modification. Practices which were considered perfectly normal at one time have today become obnoxious and oppressive to public conscience. 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. Above all, in deciding any case which may not be covered by authority our Courts have before them the beacon light of the Preamble to the Constitution. Lacking precedent, the Court can always be guided by that light and the principles underlying the Fundamental Rights and

65 the Directive Principles enshrined in our Constitution.” (emphasis by us)

29. We are mindful that this Court’s jurisprudence on Section 438 of

CrPC, particularly in Gurbaksh Singh Sibbia and Sushila Aggarwal,

has towed the line of wise exercise of judicial discretion while

interpreting the silence of the Parliament to imply an intention to

facilitate the grant of essential procedural relief to secure the right to life

and personal liberty under Article 21. Whilst the Constitution Bench in

Gurbaksh Singh Sibbia ruled against the procedural and substantive

restrictions on the grant of relief of anticipatory bail, the Constitution

Bench in Sushila Aggarwal held that the period of anticipatory bail

cannot be limited, and may extend till the end of trial. 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. Maxwell in his treatise on Interpretation of Statutes (10 edn.), page

284 states that “the tendency of modern decisions on the whole is to

narrow materially the difference between strict and beneficial

construction”. It follows that criminal statutes such as the CrPC are

66 interpreted with rational regard to the aim and intention of the

legislature. 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.

31. A remedy such as anticipatory bail secures citizens afflicted in

difficult life circumstances – and such difficulties would keep evolving

as our collective lives and legal systems become more complex. We deem

it fit to distinguish between exercise of jurisdiction arising out of

apprehension of arrest and jurisdiction conferred consequent to the

“commission and cognizance of an offence”. 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.

67

32. In the context of the contentions advanced by Dr. Manish Singhvi

that the unbridled power to grant extra-territorial anticipatory bail

would cause inconsistencies because of the varying State amendments

to Section 438 of CrPC, we note that the application of the provision for

anticipatory bail in the State of Uttar Pradesh had been omitted vide the

enactment of the Code of Criminal Procedure (Uttar Pradesh

Amendment) Act, 1976. The Uttar Pradesh State Legislature applied

Section 438 of CrPC vide enactment of Code of Criminal Procedure

(Uttar Pradesh Amendment) Act, 2018, pursuant to ‘continuous demand

for its revival’, writ petitions before the High courts, and

recommendations of the Uttar Pradesh State Law Commission in its

third report in 2009. 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.

68

33. Considering that the nature of criminal law regime in India,

entwined with State amendments, the exercise of the jurisdiction for

grant of extra-territorial anticipatory bail must be cognizant of the

possibility of forum shopping. 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.

34. Section 48 of CrPC permits the police to pursue an accused in

other jurisdictions. A police officer, for the purpose of arresting without

a warrant, one whom he is allowed to arrest, may pursue an individual

anywhere in India. Prior to effecting the arrest outside a particular

jurisdiction, the police is obligated to secure the transit remand i.e. the

remand of the accused, for taking him from one place to another in their

own custody, usually for the purpose of producing him before the

concerned magistrate who has jurisdiction to try/commit the case. The

primary purpose of such a 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 and tried. However in various cases, the police and

investigating agencies have failed to exercise necessary restraint while

functioning within their legal remit. It is for the aforesaid reason that an

69 accused apprehending arrest seeks pre-arrest bail. The Courts in India

have to be vigilant about such applications being filed particularly when

a person alleged to have committed an offence can be proceeded with by

setting the criminal law in motion in a place other than the place where

the offence has actually occurred. 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). More importantly, it is a facet of Article 14 of the

Constitution which guarantees to every person in the country, equality

before the law and equal protection of the law.

35. In this case, we are concerned with what is loosely termed as

‘transit anticipatory bail’. 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. The Constitution Bench in

Gurbaksh Singh Sibbia has held that filing of FIR is not a condition

precedent for exercising power under 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. Perhaps the

70 need and necessity for transit anticipatory bail has occasioned because

the police has been conferred power under the CrPC to pursue an

accused in other jurisdictions. Immediately upon affecting the arrest of

a person outside the jurisdiction where the offence is registered, the

police is obligated to secure a transit remand. The arrested person has

to be produced before the nearest magistrate. If such a magistrate finds

that he has no jurisdiction to try the case in which the accused has been

arrested, he may order the accused to be forwarded to a magistrate

having the jurisdiction to try the case or to commit it for trial. 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. As we have already noted, 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.

35.1. The word ‘transit’ is derived from the Latin word transitus

which means passage from one place to another. Since the word ‘transit’

is an undefined expression in CrPC, we may take recourse to the

dictionary meaning of the word ‘transit’. The Concise Oxford English

Dictionary, 10th Edition, Revised, defines the word ‘transit’ to mean

71 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. ‘Transited’ or ‘transiting’ would mean pass across or through.

Similarly, the word ‘transition’ means the process of changing from one

state or condition to another. Likewise, the adjective ‘transitory’ means

not permanent; short-lived. An useful example of the above expression

is transit visa which means a visa allowing its holder to pass through a

country only, not to stay there. The word ‘transit’ has also been defined

in the Black’s Law Dictionary, 11th Edition, to mean the transportation

of goods or person from one place to another; passage; the act of

passing.

35.2. In Dr. Brojen Gogol, this Court did not decide whether the

Bombay High Court had the jurisdiction to entertain the anticipatory

bail applications of the respondents since the crimes were registered

within the State of Assam. 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. While

passing such an order, this Court however made a general observation

that the question of granting anticipatory bail to any person who is

allegedly connected with the offence in question, must for all practical

purposes be considered by the High Court of Gauhati within whose

72 territorial jurisdiction such activities could have been perpetrated. As

we have noted above, this was a general observation made by this Court

and not a declaration of law after due adjudication.

35.3. The Allahabad High Court in Anita Garg also noted that there

is no legislation or law which defines transit or anticipatory bail in

definitive or specific terms. Thereafter, the High Court proceeded to

explain the term ‘transit’ to mean the act of being moved from one place

to another. Since the expression ‘anticipatory bail’ means granting bail

to an accused person who is anticipating arrest, ‘transit anticipatory

bail’ would refer to bail granted to any person who is apprehending

arrest by police of a state other than the state he is presently located in.

On that basis, Allahabad High Court explained ‘transit anticipatory bail’

to mean protection from arrest for a certain definite period. The mere

fact that an accused has been granted transit anticipatory bail does not

mean that the regular court under whose jurisdiction the case would

fall, shall extend such transit bail and convert the same into anticipatory

bail. 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. Allahabad

High Court has also held that transit anticipatory bail is a temporary

relief which an accused gets for a certain period of time so that he can

apply for anticipatory bail before the regular court. In this connection,

73 Allahabad High Court heavily relied upon the decision of the Bombay

High Court in Teesta Atul Setalvad. 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. Bombay High Court was of the

view that generally the power of a High Court to grant anticipatory bail

is limited to its territorial jurisdiction and that the power cannot be

usurped by disregarding the principle of territorial jurisdiction. Having

said that, the High Court emphasized that temporary relief to protect

liberty and to avoid immediate arrest can be given by the Bombay High

Court.

36. In view of what we have discussed above, we are of the view 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, and subject to the following conditions:

(i) 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.

74

(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.

(iii) 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.

(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. The

grounds raised by the applicant may be -

a. a reasonable and immediate threat to life, personal liberty and

bodily harm in the jurisdiction where the FIR is registered;

b. the apprehension of violation of right to liberty or impediments

owing to arbitrariness;

c. the medical status/ disability of the person seeking extra-

territorial limited anticipatory bail.

37. It would be impossible to fully account for all exigent

circumstances in which an order of extra territorial anticipatory bail

may be imminently essential to safeguard the fundamental rights of the

applicant. We reiterate that such power to grant extra-territorial

anticipatory bail should be exercised in exceptional and compelling

75 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.

The Court, while considering such an application for extra-territorial

anticipatory bail, in case it 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.

38. We therefore set aside the judgement of Patna High Court in Syed

Zafrul Hassan and judgment of Calcutta High Court in Sadhan

Chandra Kolay 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.

39. We shall now revert to our illustration given at the beginning of

this judgment. 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. We have held that the

accused could approach the competent Court in the State where he is

residing or is visiting for a legitimate purpose and seek the relief of

limited transit anticipatory bail although the FIR is not filed in the

76 territorial jurisdiction of the District or State in which the accused

resides, or is present depending upon the facts and circumstances of

each case. Conversely, the offence may be committed in one State, the

FIR may be lodged in another State and the accused may reside in a

third State. In which of the Courts of the three States would the accused

approach for grant of anticipatory bail? We feel that having regard to the

salutary concept of access to justice, the accused can seek limited

transit anticipatory bail or limited interim protection from the Court in

the State in which he resides but in such an event, a ‘regular’ or full-

fledged anticipatory bail could be sought from the competent Court in

the State in which the FIR is filed.

40. We are conscious that this may also lead the accused to choose

the Court of his choice for seeking anticipatory bail. 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, 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. Such a link with the territorial jurisdiction of the

Court could be by way of place of residence or

77 occupation/work/profession. By this, we imply 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.

41. Having regard to the vastness of our country and the length and

breadth of it and bearing in mind the complex nature of life of the

citizens, if an offence has been committed by a person in a particular

State and if the 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.

42. While we so hold, we are conscious of the fact that the expression

High Court in Section 2(e) of the CrPC reads as follows: (i) in relation to

any State, the High Court for that State; (ii) in relation to a Union

Territory to which the jurisdiction of the High Court for a State has been

extended by law, that High Court; (iii) in relation to any other Union

78 Territory, the highest Court of criminal appeal for that territory other

than the Supreme Court of India. Section 6 of the CrPC states that

besides the High Courts and the Courts constituted under any law,

other than the CrPC, there shall be, in every State, inter alia, Courts of

Session. Section 7 speaks about territorial divisions. 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. The proviso states

that every metropolitan area shall be a separate session division and

district. Sub-section (1) of Section 9 states that the State Government

shall establish a Court of Session for every session division; every Court

of Session shall be presided over by a Judge, to be appointed by the High

Court; the High Court may also appoint Additional Sessions Judges to

exercise jurisdiction in a Court of Session and such Judges may also sit

in another division as may be directed by the High Court.

43. 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 case of offences under any other law

when any Court is mentioned in this behalf in such law, being tried by

such Court and when no Court is mentioned may be tried by (i) the High

79 Court; or (ii) any other Court by which such offence is shown in the First

Schedule to be triable.

44. Further, on a reading of Section 438 of CrPC, we 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, 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, 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. 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. If that was the implication, the same would

have been expressly evident in the Section itself or by a necessary

implication. Further use of the word “the” before the words “High Court”

and “Court of Session” also does not mean that only the High Court or

the Court of Session, as the case may be, within whose jurisdiction the

FIR is filed, is competent to exercise jurisdiction for the grant of transit

anticipatory bail.

45. At the same time, we are also mindful of the fact 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. However,

80 in view of what we have discussed above, he would be entitled to seek a

transit anticipatory bail from the Court of Session or High Court in the

State where he is a resident which necessarily has to be of a limited

duration so as to seek regular anticipatory bail from the Court of

competent jurisdiction. The need for such a provision is to secure the

liberty of the individual concerned. 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.

Otherwise, in a deserving case, there is likelihood of denial of personal

liberty as well as access to justice for, by the time the person concerned

approaches the Court of competent jurisdiction to seek anticipatory bail,

it may well be too late as he may be arrested. 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.

46. If a rejection of the plea for limited/transitory anticipatory bail is

made solely with reference to the concept of territorial jurisdiction it

81 would be adding a restriction to the exercise of powers under Section

438. This, in our view, would result in miscarriage and travesty of

justice, aggravating the adversity of the accused who is apprehending

arrest. It would also be against the principles of access to justice. We

say so for the reason that an accused is presumed to be innocent until

proven guilty beyond reasonable doubt and in accordance with law. 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.

47. There can also be a case where the accused is facing multiple FIRs

for the same offence in several States. He may seek an interim protection

from a particular Sessions Court or the High Court in a State. Does he

have to move from State to State for the purpose of seeking anticipatory

bail or seek multiple pre-arrest bails? We would not attempt to give an

82 answer to such a situation as the facts of the present case do not involve

such a situation.

48. Another issue that calls for reiteration is, whether, the ordinary

place of inquiry and trial would include the place where the

complainant-wife resides after being separated from her husband. 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.) vs. Prashant Kumar

Mukherjee, (1997) 5 SCC 30; Y. Abraham Ajith vs. Inspector of

Police, Chennai, (2004) 8 SCC 100, Ramesh vs. State of T.N. (2005)

3 SCC 507; Manish Ratan vs. State of M.P., (2007) 1 SCC 262 that

if none of the ingredients constituting the offence can be said to have

occurred within the local jurisdiction, that jurisdiction cannot be the

ordinary place of investigation and trial of a matrimonial offence. 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. It was held that the Courts at the place where the wife

takes shelter after leaving or being driven away from the matrimonial

83 home on account of acts of cruelty committed by the husband or his

relatives, would, depending on the factual situation, also have

jurisdiction to entertain a complaint alleging commission of offences

under Section 498-A of the IPC.

49. Applying Rupali Devi, in view of the fact that the complainant-

wife herein claims to have received death threats and harassment over

the phone even after her return to her parental home in Chirawa,

Rajasthan the ordinary place of trial may be Chirawa. 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. In

view of the facts and circumstances of the present case and the

conclusion to the points considered hereinabove, we allow and dispose

of these appeals in the following terms:

a. The impugned orders of the learned Additional City Civil and

Sessions Judge Bengaluru City do not take note of respondent No.2

at all for allowing Criminal Misc. Nos. 3941/2022, 3943/2022,

3944/2022 and 3945/2022.

b. The impugned orders are hence set aside.

c. However, in the interest of justice, it is directed that no coercive

steps may be taken against the accused for the next four weeks, to

84 enable them to approach the jurisdictional Court in Chirawa,

Rajasthan for anticipatory bail.

d. It is also directed that in case applications under Section 438 of

CrPC are made before the Court of Session in Chirawa or the High

Court of Rajasthan, the same shall be decided expeditiously and on

their own merits.

We place on record our appreciation for the valuable assistance

rendered by learned senior counsel and learned ASG, Sri Vikramjeet

Banerjee who has advanced submissions as an amicus curiae in this

case as also of other senior counsel and counsel who have appeared in

this case.

……………………………….J. (B.V. NAGARATHNA)

……………………………….J. (UJJAL BHUYAN) New Delhi;

20th November, 2023.

85