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TMI Blog2023 (11) TMI 1286X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d a First Information Report (FIR) for the offence of causing grievous hurt Under 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... galkunte 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. 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.5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Amicus submitted that the Courts have evolved the '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 v. Brojen Gogol (Dr), (1998) 1 SCC 397 (Brojen Gogol) and Amar Nath Neogi v. State of Jharkhand, (2018) 11 SCC 797. iii. Learned amicus further submitted that this Court in Nathu Singh v. 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 judgment of this Court in Navinchandr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Maharashtra, (2014) 9 SCC 129, it was observed that Section 177 of the Code of Criminal Procedure 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 Code of Criminal Procedure, Dr. Singhvi submitted that Chapter II of the Code of Criminal Procedure distributes adjudicatory duties amongst Magistrates and Courts as per territorial jurisdiction. Section 14 of the Code of Criminal Procedure 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 accordance with the concept of 'ordinary place of inquiry and trial,' as stated in Chapter XIII of the Code of Criminal Procedure. 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 com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 judgments of this Court in Balchand Jain v. State of M.P., (1976) 4 SCC 572 (Balchand Jain) and Sushila Aggarwal v. 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 Code of Criminal Procedure. 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 or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prehension 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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 Code of Criminal Procedure 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icipatory 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 Code of Criminal Procedure, 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; 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt did not grant bail in cases of that kind, but emphasised on Section 498 of the erstwhile Code of Criminal Procedure to hold that the High Court could exercise revisionary jurisdiction and grant bail to any person. It was noted that 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 v. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bserved that the Code of Criminal Procedure, 1898 did not contain any specific provision corresponding to the present Section 438 of Code of Criminal Procedure 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Code of Criminal Procedure after the acceptance of the aforesaid recommendation, the expression anticipatory bail remained undefined in the Code of Criminal Procedure. 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. 10.9. A crucial difference between the pre-arrest bail order Under Section 438 of Code of Criminal Procedure and the bail order Under Sections 437 and 439 of Code of Criminal Procedure is the stages at which the bail orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cant, 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 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 observe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in mind while dealing with an application Under Section 438 of Code of Criminal Procedure: 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. 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 Code of Criminal Procedure, 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stigating 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) Code of Criminal Procedure. k) In Siddharam Satlingappa Mhetre v. 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 v. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ards chiselling an equitous remedy that strikes a delicate balance between the imperative of personal liberty with that of effective administration of criminal law. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 Ranjan Sinha, 1981 SCC Online Cal 102 (In Re: Benod Ranjan Sinha) Calcutta High Court regarding FIR registered in the State of Bihar. The High Court granted relief Under Section 438 of the Code of Criminal Procedure to the Petitioner therein and reasoned that it has jurisdiction to entertain 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.) v. State of Karnataka, 1983 SCC OnLine Kar 206 (L.R. Naidu) Karnataka High Court regarding FIR registered in the State of Kerala The anticipatory bail applicant was granted protection from arrest with the direction that upon a future arrest, he shall be released on bail on his 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relief and reasoned that an application Under Section 438 of Code of Criminal Procedure cannot be entertained in respect of offences committed in another territory for want of jurisdiction. The High Court laid emphasis on 'the deliberate designed phraseology' of Section 438 of Code of Criminal Procedure and reasoned that the High Court or the Court of Session cannot be conflated with any High Court or any Court of 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 Code of Criminal Procedure. 7. Sailesh Jaiswal v. State of West Bengal, 1998 SCC Online Cal 215 (Sailesh Jaiswal) Calcutta High Court The Full Bench of Calcutta High Court held that an application Under Section 438 of Code of Criminal Procedure cannot be entertained in respect of 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 ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt 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 Setalvad vs. State of Maharashtra, ABA No.14/2014 (Teesta Atul Setalvad) Bombay High Court regarding offence registered in the State of Gujarat The High Court granted transit bail for four weeks and allowed the applicant to move before the appropriate Court in Gujarat for said relief. 11. Gameskraft Technologies v. State of Maharashtra, 2019 SCC OnLine Kar 520 (Gameskraft Technologies) Karnataka High Court regarding offence registered in the State of Maharashtra. The High Court recognized that it is a well-settled proposition of law that though the alleged offence had not taken place within the jurisdiction of the said Court, it can grant bail though it has no jurisdiction. The High Court allowed the application, directing that they must be immediat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Suresh Parulekar v. State of Goa 2023 SCC OnLine Bom 1568 (Manda Suresh Parulekar ) Bombay High Court regarding offence registered in the State of Goa. The High Court granted transit anticipatory bail with respect to an FIR registered in Tardeo, Goa. Without adjudicating the merits of the case, upon considering 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 unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urisdiction. e. Another set of judgments, 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 judgment 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 Code of Criminal Procedure as different and disjoint from the ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 v. State of U.P., (1994) 4 SCC 260, para 17-19 - proposed to restrict the circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to appear at Court to answer any charge made against him. (d) The Queen's Bench in Regina v. 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 v. Director Public Prosecutions, (2021) eKLR extensively referred to Section 438 of Code of Criminal Procedure and stated that the constitutional Courts of India had widely co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ights 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Code of Criminal Procedure : 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 Code of Criminal Procedure. 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nscience 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 the Directive Principles enshrined in our Constitution. (emphasis by us) 29. We are mindful that this Court's jurisprudence on Section 438 of Code of Criminal Procedure, 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 judgment of the Consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Code of Criminal Procedure 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Code of Criminal Procedure though it is traceable to Section 438 of Code of Criminal Procedure. 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 Code of Criminal Procedure. 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 Code of Criminal Procedure. Perhaps the need and necessity for transit anticipatory bail has occasioned because the police has been conferred power under the Code of Criminal Procedure to pursue an Accused in other jurisdictions. Immediately upon affecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 'an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing 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. (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 Code of Criminal Procedure. (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 im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tary 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 Code of Criminal Procedure 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 occupation/work/profes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Code of Criminal Procedure deals with the Courts by which offences are triable which states that subject to the other provisions of the Code of Criminal Procedure, any offence under the Indian Penal Code 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 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 Code of Criminal Procedure, we do not find that the expression the High Court or the Court of Session is restricted vis- -vis the local limits or any particular territorial jurisdiction. However, this does not mean that if an FIR is lodged in one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction 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 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 territoria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to entertain a complaint alleging commission of offences Under Section 498-A of the Indian Penal Code. 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 Accus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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