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2023 (11) TMI 1286 - SC - Indian LawsJursdiction - power to grant anticipatory bail Under Section 438 of the Code of Criminal Procedure - power of the High Court or the Court of Session to grant anticipatory bail Under Section 438 of the Code of Criminal Procedure could be exercised with respect to an FIR registered outside the territorial jurisdiction of the said Court or not - 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 Code of Criminal Procedure before a Court of competent jurisdiction is consistent with the administration of criminal justice or not. HELD THAT - This Court's jurisprudence on Section 438 of Code of Criminal Procedure, particularly in Gurbaksh Singh Sibbia 1980 (4) TMI 295 - SUPREME COURT and Sushila Aggarwal 2020 (1) TMI 1193 - SUPREME COURT , 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 judgment 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.' 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 - The omission of any qualification of the expression 'the High Court or the Court of Session,' ought to be constructed in a fashion that furthers the constitutional ideal of safeguarding personal liberty. It would be in furtherance of fostering personal liberty enshrined in Article 21 of the Constitution of India in entrusting a wider jurisdiction to the Court of Session and the High Court in the grant of anticipatory bail, than in foreclosing the same by restructuring the exercise of jurisdiction in the matter of grant of anticipatory bail. The exercise of the jurisdiction for grant of extra-territorial anticipatory bail must be cognizant of the possibility of forum shopping - it is deemed 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. 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 Code of Criminal Procedure in the interest of justice with respect to an FIR registered outside the territorial jurisdiction of the said Court, and subject to the fulfilment of conditions imposed. The impugned orders are set aside - appeal allowed.
Issues Involved:
1. Whether the power of the High Court or the Court of Session to grant anticipatory bail under Section 438 of the Code of Criminal Procedure could be exercised with respect to an FIR registered outside the territorial jurisdiction of the said Court. 2. 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 Code of Criminal Procedure before a Court of competent jurisdiction is consistent with the administration of criminal justice. 3. What order should be passed in the present case. Issue-wise Detailed Analysis: Issue 1: Whether the power of the High Court or the Court of Session to grant anticipatory bail under Section 438 of the Code of Criminal Procedure could be exercised with respect to an FIR registered outside the territorial jurisdiction of the said Court. The Court examined the statutory framework of Section 438 of the Code of Criminal Procedure (CrPC) and the legislative intent behind it. Section 438 confers a statutory right upon any person who has reason to believe that they may be arrested on accusation of having committed a non-bailable offence. The provision does not explicitly restrict the jurisdiction of the High Court or the Court of Session to grant anticipatory bail only within the territorial limits where the FIR is registered. The Court observed that the legislative intent behind Section 438 is to prevent wrongful arrest and humiliation, especially in politically motivated or malicious prosecutions or false cases. The Court emphasized the constitutional imperative of safeguarding personal liberty and access to justice, which are fundamental rights under Article 21 of the Constitution of India. The Court concluded that a restrictive interpretation of Section 438, which bars the jurisdiction of a Court to grant anticipatory bail for an offence committed outside its territorial jurisdiction, would undermine these constitutional values. Thus, the Court held that the High Court or the Court of Session could exercise jurisdiction to grant anticipatory bail even if the FIR is registered outside its territorial jurisdiction. Issue 2: 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 Code of Criminal Procedure before a Court of competent jurisdiction is consistent with the administration of criminal justice. The Court acknowledged the evolving practice of granting transit anticipatory bail, which provides temporary relief to an individual apprehending arrest in a different jurisdiction. This practice ensures that the individual can seek regular anticipatory bail from the Court of competent jurisdiction without facing immediate arrest. The Court noted that the concept of transit anticipatory bail is not explicitly defined in the CrPC but has emerged from the practical necessity of protecting personal liberty and ensuring access to justice. The Court held that the High Court or the Court of Session could grant limited anticipatory bail in the form of interim protection, subject to certain conditions, to enable the Applicant to approach the Court of competent jurisdiction. These conditions include issuing notice to the investigating officer and public prosecutor, recording reasons for the apprehension of inter-state arrest, and ensuring that the jurisdiction in which the cognizance of the offence has been taken does not exclude the offence from the scope of anticipatory bail by way of a State Amendment to Section 438 of CrPC. The Applicant must also satisfy the Court regarding their inability to seek anticipatory bail from the Court with territorial jurisdiction to take cognizance of the offence. Issue 3: What order should be passed in the present case. The Court set aside the impugned orders of the learned Additional City Civil and Sessions Judge, Bengaluru City, which granted anticipatory bail to the Accused-husband and his family members without issuing notice to the investigating officer and public prosecutor in Chirawa Police Station, Rajasthan. The Court directed that no coercive steps may be taken against the Accused for the next four weeks to enable them to approach the jurisdictional Court in Chirawa, Rajasthan, for anticipatory bail. The Court also directed that any applications for anticipatory bail made before the Court of Session in Chirawa or the High Court of Rajasthan shall be decided expeditiously and on their own merits. In conclusion, the Court held that the High Court or the Court of Session could grant limited anticipatory bail in the form of interim protection for an offence registered outside its territorial jurisdiction, subject to specific conditions. The Court emphasized the importance of safeguarding personal liberty and ensuring access to justice while preventing the abuse of the process of law.
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