The Supreme Court has set aside judgments of the Patna and Calcutta high courts holding that a high court did not possess jurisdiction to grant any extraterritorial anticipatory bail, not even a limited or transit one.
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IN an important ruling furthering the cause of individual liberty, the Supreme Court has held that an accused facing a first information report (FIR) in one state but residing in another state can seek a transit anticipatory bail for a limited duration from the court of session or high court in the state of which he is a resident.
This will also hold good for a situation where an offence of which the person stands accused has been committed in a particular state, the FIR is filed in another state and the accused is a resident of a third state.
A division Bench of Justices B.V. Nagarathna and Ujjal Bhuyan handed down the verdict to this effect. The Bench grounded its ruling on the right to life and liberty and access to justice under Article 21 of the Constitution.
“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 the 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 [have been] arrested,” the Bench ruled.
The Bench set aside the judgments of the Patna High Court in Syed Zafrul Hassan and Anr versus State and the judgment of the Calcutta High Court in Sadhan Chandra Kolay versus State, to the extent that they held that a high court did not possess jurisdiction to grant any extraterritorial anticipatory bail, i.e., even a limited or transit anticipatory bail.
The Bench added that while granting transit anticipatory bail, the court would have to examine the degree and seriousness of the apprehension expressed by the person who seeks transit anticipatory bail.
It laid down conditions for the court granting transit bail as follows:
- Prior to passing of 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.
- 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.
- The jurisdiction in which the cognisance 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 the Code of Criminal Procedure (CrPC).
- 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 cognisance of the offence. The grounds raised by the applicant may be:
- Reasonable and immediate threat to life, personal liberty and bodily harm in the jurisdiction where the FIR is registered.
- The apprehension of violation of right to liberty or impediments owing to arbitrariness.
- The medical or disability status of the person seeking extraterritorial limited anticipatory bail.
The Bench also said it was conscious of the fact that its ruling might lead the accused to choose the court of their choice for seeking anticipatory bail.
To keep forum-shopping in check, the Bench held it would be 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 or profession. By this, we imply that the accused cannot travel to any other state only for the purpose of seeking anticipatory bail.
“The reason as to why he is seeking such bail from a court within whose territorial jurisdiction the FIR has not been filed must be made clear and explicit to such a court.
“Also, there must be a reason to believe or an imminent apprehension of arrest for a non-bailable offence made out by the accused for approaching the court within whose territorial jurisdiction the FIR is not lodged or the inability to approach the court where the FIR is lodged immediately,” the Bench held.
The Bench also noted that there could be a case where the accused is facing multiple FIRs for the same offence in several states. Does he have to move from state to state for the purpose of seeking anticipatory bail or seek multiple pre-arrest bails?
The Bench did not answer this question observing that it was not the issue before it.
Interpreting Section 438 of the CrPC, which deals with power of high court and sessions courts to grant pre-arrest bail, the Bench held that the fundamental right to personal liberty and access to justice, which are constitutionally recognised and statutorily preserved through the presence of jurisdiction with superior courts, would be undermined if Section 438 is given restrictive interpretation.
“While construing a statute, constitutional courts are obliged to render a contextually sensitive construction that preserves and furthers core constitutional values,” the Bench held.
“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 a 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 Bench ruled.
The Bench was ruling on a petition filed by a wife challenging an Order passed by the additional city civil and sessions judge, Bengaluru City granting anticipatory bail to her husband and his family members in an FIR for the offences under Sections 498A (cruelty against wife by husband or relative), 406 (criminal breach of trust) and 323 (causing hurt) of the Indian Penal Code, 1860 registered by the complainant-wife at Chirawa police station, district Jhunjhunu, Rajasthan.
On the facts of this case, the Bench set aside the impugned judgment because the accused-husband and his family members were granted extraterritorial anticipatory bail without issuing notice to the investigating officer and public prosecutor in Chirawa police station, Rajasthan, wherein the wife had lodged the FIR.
The Bench, however, continued the protection from arrest for four weeks to enable accused persons to approach the jurisdictional court in Chirawa for anticipatory bail.
Click here to read the order.
