High Courts, Session Courts Can Grant Interim/Transit Anticipatory Bail Even When FIR Is Registered In Another State: Supreme Court

The Supreme Court today held that the Sessions Court or High Court that would have the power to grant interim/transit anticipatory bail, when the FIR is not registered within the territory of a particular State but in a different State.

The Court observed :

"...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".

If transit bail application is rejected on the sole ground of territorial jurisdiction, it will be adding a restriction to the powers under Section 438 of the Code of Criminal Procedure. This, in the Court's 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. 

In this regard, the Court noted that as per Section 438 CrPC, there is no reference to the territorial jurisdiction of the High Court or the Court of Sessions.

"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."

Conditions for transit bail :

However, it laid down the following conditions-

• Prior to passing of the order of limited anticipatory bail, the Investigating Officer and the Public Prosecutor who are seized of FIR shall be issued notice, though the court in appropriate case, the court would have discretion to to grant interim anticipatory bail. The order of grant of must record reasons as to why the applicant apprehends an inter-state arrest and the impact of interim anticipatory bail as the case may be on the status of investigation.
• The jurisdiction in which the cognizance of the offense has been taken does not exclude the said offense from the scope of anticipatory bail by way of a state amendment to section 438 CrPC.
• The applicant must satisfy the court, regarding his inability to seek such bail from the court having territorial jurisdiction.
• The grounds raised may be a reasonable and immediate threat to life, personal liberty, and bodily harm, the jurisdiction where FIR is registered, the apprehension of violation of the right to life liberty or impediments owing to arbitrariness, the medical status or disability of person seeking extra-territorial limited anticipatory bail.

The Court added “It would be fully impossible to account for all exigent circumstances in which order for extraterritorial anticipatory to safeguard the fundamental right of the applicant. We reiterate such power should be granted in exceptional and compelling circumstances only which means that denying transit bail or interim protection to enable the applicant to make an application under section 438 would cause irremediable and irreversible prejudice to the applicant.”

The Supreme Court bench comprising Justice B.V. Nagrathna and Justice Ujjal Bhuyan pronounced the judgment in a Special Leave Petition filed against the judgment of Sessions Judge, Bangalore which had allowed the extraterritorial bail petition by the accused husband. Aggrieved by the same, the petitioner had approached the Apex Court in an SLP.

There should be some territorial nexus between the accused and the Court

The Court also drew attention to the potential abuse of the legal process. To address this, the court asserted the necessity for establishing a territorial connection or proximity between the accused and the court's jurisdiction where anticipatory bail is sought.

It opined “We’re 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. This would also make the concept of territorial jurisdiction which is of importance under CrPC pale into insignificance. Therefore, in order to prevent the abuse process of a court by the accused, it is necessary for court to ascertain the territorial connection/proximity between accused and the territorial jurisdiction of court which is approached for such a relief. Such a link with territorial jurisdiction could be by way of place of residence or occupation, work or profession. By this, we imply that the accused cannot travel to another state only to seek anticipatory bail. There must be reasons to believe or an imminent apprehension of arrest for non bailable offence.”

The Court began the judgment with 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 assailant travels to Rourkela, Odisha where he’s working in a factory. Meanwhile, the family of the injured files registered an FIR for causing grievous hurt under section 326 at the Police station, Goa. On coming to know about the same and apprehending his arrest, the alleged assailant applies for anticipatory bail before the District and Sessions judge, Sundergarh, Odisha having jurisdiction over Rourkela.

Now the question was whether the alleged assailant’s application is maintainable or not?

Two issues had arisen before the court-

• Whether the power of the HC/Sessions to grant anticipatory under Section 438 of CrPC could be exercised with respect to an FIR registered outside the territorial jurisdiction of the said court?
• Whether the practice of granting transit anticipatory bail or interim protection to enable an applicant seeking anticipatory bail to make an application under section 438 CrPC before a court of competent jurisdiction is consistent with the administration of criminal justice?

The Court began by going to the legal framework, judgments of HC, the evolution of safeguard of anticipatory bail. It quoted Gurbaksh Singh Sibbia v. State of Punjab, a Constitutional bench judgment where the Supreme Court speaking through CJI YV Chandrachud observed “ The society has a vital stake in preserving personal liberty as well as investigational powers of police and their 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 the Code of Criminal Procedure, 1973 was the focus of the said case.”

Then, the court placed the question in the context of personal liberty and access to justice. It held that “we must also look at same from angle of personal liberty and access to justice. Art. 39A deals with- equal justice and free legal aid which can be considered to be a specie of Art 21 which deals with right to life and liberty.”

In the case at hand, the accused husband was granted extraterritorial anticipatory bail without giving notice where the appellant had lodged an FIR. The court finally set aside the impugned order by Sessions Judge.

Case title: Priya Indoria v. State of Karnataka

Citation: 2023 LiveLaw (SC) 996

Click here to read the judgment