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Court said that 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
The Supreme Court on Monday declared that an accused in a criminal case can approach the high court or sessions court for a limited anticipatory bail in another state outside the territorial jurisdiction of the state where the FIR was lodged.
"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," a bench of Justices B V Nagarathna and Ujjal Bhuyan said.
The bench said, "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".
However, in order to avoid abuse of the process of law as well as the court and forum shopping, the bench clarified that the accused cannot travel to any other State only for the purpose of seeking anticipatory bail.
"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," the bench said.
Referring to Section 438 of CrPC, the bench said that the expression “the High Court” or “the Court of Session” is not 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," it said.
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, it pointed out.
"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," the bench said.
The court also said that 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, CrPC.
"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," the bench said.
The court, however, said that the limited anticipatory bail can be granted 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.
(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 court also said that 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 extraterritorial limited anticipatory bail.
In its judgment, the top court set aside the anticipatory bail relief granted to a husband and his family members by a Bengaluru sessions court in an FIR lodged by the wife in Rajasthan's Chirawa for no notice was issued to the Investigating Officer and the Public Prosecutor where the case was lodged. The court, however, granted four weeks' protection to the accused to approach the jurisdictional Court in Chirawa, Rajasthan for anticipatory bail.
Case Title: Priya Indoria Vs State of Karnataka And Ors
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