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TMI Blog1986 (1) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... them has been registered in the Jhinkpani Police Station, District Singhbhum, on the 18th of July, 1985 with regard to the supply of 800 metric tons of cement by the said company to the Government. It is unnecessary to recount the details of the allegations in the first information report, and it suffices that apprehending the arrest in pursuance thereof the petitioners have moved the present criminal miscellaneous petition. 3. At the motion stage itself, the issue came up for consideration that since the commission of the offence was within the district of Singhbhum, the Ranchi Bench of this Court alone would have jurisdiction. However, on behalf of the petitioners the stand taken was that a person apprehending arrest in any part of the country or the State can move any High Court or any Court of Session for anticipatory bail. Reliance was placed on a Division Bench judgment of this Court in Madan Mohan Choudhary v. State of Bihar Expressing some doubt about the correctness of the said view, the learned Judges of the Division Bench referred the matter for an authoritative adjudication by a larger Bench. As this was inevitably likely to take some time, the interim relief of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provision aforesaid, it would be apt to consider the matter on principle. On the larger perspective in criminal jurisprudence it seems elementary that the concept of territorial jurisdiction is the inarticulate premise which underlies all references, to a Court by the legislature. Whenever in statute a reference is made to the High Court or the Court of Session or that of the Magistrate, it is inherent in such language that it is a Court having territorial jurisdiction over the offence. This is indeed so implicit and necessary that if it were not to be so, it would have to be repeated ad nauseam in every statute as the High Court having jurisdiction or the Court of Session having jurisdiction or the Magistrate having jurisdiction, etc. The law herein assumes in this context that the reference to the Court is in terms to the Court having territorial jurisdiction. 6. Now this inherent concept of Courts having jurisdiction over specific territory and not beyond it, is indeed essential for the very maintenance of the comity of the Courts. The concept of territoriality is inherent in the justice system and the more so in the realm of criminal jurisprudence. This aspect may first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Act : 3..... In this Act, and in all Central Acts and Regulations made after the commencement of this Act, unless there is anything repugnant in the subject or context.-- X X X (25) 'High Court', used with reference to civil proceedings, shall mean the highest Civil Court of Appeal (not including the Supreme Court) in the part of India in which the Act or Regulation containing the -expression operates; x x x x State Act: 4..... In all Bihar and Orissa Acts and Bihar Acts, unless there is anything repugnant in the subject or context,-- X X X X (25) 'High Court' used with reference to civil proceedings, shall mean the highest Civil Court of Appeal in the part of Bihar and Orissa, in which the Act containing the expression operates; x x x x From the above provisions also it would follow that with regard to the jurisdiction of the High Court in civil proceedings it is related to the part of India in which the Act or Regulation containing the expression operates and does not extend to the whole of India. Similarly by the specific provisions of Section 4(25) of the Bihar and Orissa General Clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the language of Section 438 and the inherent limitations of territorial jurisdiction cannot be overridden by any high-flown and doctrinaire considerations. 9. Yet again the context and positioning of Section 438 in the Code is itself a clear pointer to such a limitation. The section is laid in Chapter XXXIII making provisions as to bail and bonds. It is preceded by Section 437 providing when a bail can be taken in case of a non-bailable offence by Courts other than High Court or the Court of Session. Clearly enough Section 437 pertains to and provides for the grant of bail by Magistrates having territorial jurisdiction in non-bailable offences. Even the learned counsel for the petitioners did not take the untenable stand that under Section 437 any Magistrate irrespective of the locale of the crime can assume jurisdiction and grant bail in cases of non-bailable offences. Succeeding Section 439 deals with the special power of the High Court or the Court of Session regarding bail in non-bailable offences. It is undeniable that this section visualises the High Court or the Court of Session having jurisdiction over the area of the commission of the crime, and not any High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... twenty-four hours.-- X X X X (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he 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. X X X X The aforesaid provisions highlight the basic rule that offences are to be inquired into and tried in a court having geographical jurisdiction over the locale of crime. Even if the accused is found far beyond the arena of the crime, he has to be brought back before the court having local jurisdiction to try the same. It is not that the accused person's presence would carry the jurisdiction with him to any court where he may fortuitously be present or where he may deliberately have chosen to flee. It seems further manifest that on larger principle wherever the jurisdiction of the criminal court for trial and inquiry of the offence lie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplying the larger principle in Raghubans Dubey v. State of Bihar (supra) under Section 438 also, the cognizance is taken of offence and -- to employ its own language -- where the accusation of having committed a non-bailable offence arises. The focal point is the spot of the commission, of the offence and not the flying movements of a fugitive offender. 12. In the alternative, Mr. Braj Kishore Prasad has lowered his sites a little for contending that the nexus for Section 438 is the residence of the accused person and not the locale of the commission of the offence. The argument again was that the apprehension of arrest arises where a man is or in any case where he is permanently resident and that would confer jurisdiction on the High Court or the Court of Session. In my view, this submission has to be equally rejected. What has been said above with regard the larger principle of the spot of the offence-applies mutatis mutandis to this aspect as well. The residence question herein would be totally irrelevant. It is indeed too slippery a test to merit practical adoption. Domicil and residence are unruly horses and these cannot be easily controlled or tethered. Ticklish issues of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e shall, if the person arrested appears to be the person intended by the Court which issued the warrant, direct his removal in custody to such Court; x x x x x Provided further that if the offence is a non-bailable one, it shall be lawful for the Chief Judicial Magistrate (subject to the provisions of Section 437 or the Sessions Judge, of the district in which the arrest is made on consideration of the information and the documents referred to in Sub-section (2) of Section 78, to release such person on bail. On behalf of the petitioners it was nought to be argued that the aforesaid proviso conferred a power on a Chief Judicial Magistrate or a Sessions Judge other than the one having jurisdiction over the area of offence to grant bail after considering the information and documents referred to in Sub-section (2) of Section 78. It is significant that under the proviso this can only be done with regard to the warrants of arrest issued under Section 78 and on the basis of documents mandated to be forwarded along with the warrant by Sub-section (2) thereof. This power can, therefore, be exercised only within these narrow parameters. It is plain that such a power arises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and the rigidity of such a rule as also its necessity in public interest. He assailed the sentimental grounds of the alleged hardship to an accused person for being called upon to go to the Court having territorial jurisdiction over the offence for seeking anticipatory bail as utterly unwarranted. In somewhat picturesque language he pointed out that if the accused could afford the luxury of committing an offence far away from his place of residence, he cannot avoid the burden of invoking the jurisdiction of the Court where he chose to commit the offence. According to him and, in our view, rightly such chimerical considerations are irrelevant in the context of the commission and trial of offences. It was forcefully and plausibly argued that it is not for an accused person to select jurisdiction for anticipatory bail by being at any place where he may pretend to apprehend his arrest Mr. Lala Kailash Behari Prasad pinpointed that reliance on Sections 78 and 81 of the Code was irrelevant as these pertain to situations after arrest or execution of the warrant. Counsel pointed out that if Section 438 was construed as canvassed on behalf of the petitioners, it would become a paradise fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the first information report was lodged at Ludhiana. The anticipatory bail was sought in the High Court having jurisdiction over the State of Punjab and the case was heard and determined by the Full Bench in Gurbaksh Singh Sibia v. State of Punjab, AIR 1978 Punj and Har 1 : (1978 Cri LJ 20), to which one of us was a party. Neither the facts nor the observations of their Lordships of the Supreme Court in Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632 : (1980 Cri LJ 1125) can in any way lend credence to the concept of extra territorial jurisdiction of the High Court or a Court of Session for the grant of anticipatory bail which is attempted to be canvassed on behalf of the petitioner. In my view, Gurbaksh Singh Sibbia's case, AIR 1980 SC 1632 : (1980 Cri LJ 1125) is not in the least attracted to the issue which falls for adjudication here. 17. One must now turn to precedent taking a contrary view. Reliance on behalf of the petitioner was placed on the judgment of the learned single Judge in Pritam Singh v. State of Punjab, (Delhi). A perusal of the brief judgment therein would indicate that the counsel for the parties were somewhat remiss in not adequately canvass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein it was observed as follows : In fact, we have come across instances in the past where the Calcutta High Court had exercised jurisdiction in matters in which no part of the cause of action arose within its jurisdiction, a situation which could surely not have arisen if a written and not an oral application had been made. With the deepest deference I regret my inability to subscribe to the views of the Calcutta High Court typified in B. R. Sinha v. The State and feel compelled to record my dissent therefrom. 19. Reference must also be made to the judgment of the learned single Judge of the Karnataka High Court in Dr. L. R. Naidu v. State of Karnataka. 1984 Cri LJ 757.' Therein an order of anticipatory bail of limited duration was made with a direction to the petitioner to approach the appropriate Court in Kerala State within twenty days from the date of his arrest. Even though the order was of a limited nature in essence, the observations in this judgment tend to an assumption of jurisdiction under Section 438 over commission of crime outside the jurisdiction of a High Court, on the alleged ground of the residence of the accused person. The learned single Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is satisfied that the petitioner has got a reasonable apprehension and he lives somewhere or even intends to live somewhere within its territorial jurisdiction. With the deepest respect, I find myself wholly unable to concur with this line of reasoning for considerations exhaustively delineated earlier, Basic reliance for the view taken again was on the Delhi High Court's judgment in Pritam Singh v. State of Punjab (1980 Cri LJ 11741 and the line of decision of the Calcutta High Court in B. R. Sinha v. The State which have already been considered and dissented from. The learned Judge otherwise viewed the power of arrest by the police having jurisdiction as the first cry of invasion of the right of liberty. With the deepest respect, the lawfully vested power of arrest with the police for cognizable and non-bailable offences is not a hostile invasion of liberty but a legal and mandatory investigational process in accord with the due process of law spelt out in the exhaustive Code of Criminal Procedure. A perusal of the judgment would indicate that the learned counsel for the parties were remiss in not canvassing the issue in all its ramifications before the Bench. With the deepe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5) their Lordships without being inflexible had directed that notice should issue to the Public Prosecutor or the Government Advocate forth-with and the question of bail should be re-examined in the light of respective contentions of the parties under Section 438. How is a High Court or a Court of Session in one State to issue or demand compliance with a notice against the Public Prosecutor or the Government Advocate of another faraway State? Whether such a Court would have authority to do so or the investigating agencies of another State are bound to comply with are the moot questions. The difficulty and indeed the futility of such was rightly noticed in Dr. L.R. Naidu v. State of Karnataka, 1984 Cri IJ 757 (Kant). It has to be recalled that the grant or refusal of an anticipatory bail is a matter of urgency which does not brook of long delay. Equally one must be reminded that the provisions for anticipatory bail do not necessarily involve as a pre-requisite a surrender to custody. Therefore, 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. It seems plain that somewhat cur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... establishment of a Permanent Bench at Ranchi, that Bench alone has now to exercise jurisdiction and power for the time being vested in the Patia High Court arising out of cases in the districts of Hazaribagh. Giridih, Dhanbad, Ranchi, Palamau and Singhbhum. Learned counsel for the State had rightly contended that if the parties were allowed to whimsically select the jurisdiction from which Bench of the High Court they would seek redress, it would violate both the letter and spirit of the statutory provisions. Further, it would render the proviso to Section 2 of the Ranchi Bench . Act as also the proviso to Rule 3 wholly nugatory. 25. In the present case it is not in dispute that the case against the two petitioners has been registered in Jhinkpani police station which falls in the district of Singhbhum. The matter thus comes squarely within the jurisdiction of the Ranchi Bench. The preliminary objection on behalf of the opposite party State against the very maintainability of this criminal miscellaneous petition at Patna, therefore, must be upheld. This petition is consequently dismissed and the petitioners are relegated to seek their remedy in the appropriate forum of the Ranch ..... X X X X Extracts X X X X X X X X Extracts X X X X
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