UNREGISTERED DOCUMENTS RELATING TO IMMOVEABLE PROPERTIES

 

 

unregistered documents relating to immoveable propErties

 

The validity of unregistered agreement has often been the subject matter of deliberation in courts with regard to any rights if accrued or enforceable on that premise. The Registration Act 1908 , though, has contained the relevant provisions, mandating registration of any title or conveyance or even interest in respect of immoveable properties still, the transactions as regards immoveable properties are in vogue and thus filling the disputes to be deliberated and adjudicated by Courts of law.

Recently, Supreme Court has dealt with this issue in a matter captioned as SHAKEEL AHMED VERSUS SYED AKHLAQ HUSSAIN Civil Appeal No.1598 of 2023. At the very outset, para 10 of the judgment in the above case may be referred to as under:

“10. Having considered the submissions at the outset, it is to be emphasized that irrespective of what was decided in the case of Suraj Lamps and Industries183 (2011) DLT 1 (SC) the fact remains that no title could be transferred with respect to immovable properties on the basis of an unregistered Agreement to Sell or on the basis of an unregistered General Power of Attorney. The Registration Act, 1908 clearly provides that a document which requires compulsory registration under the Act, would not confer any right, much less a legally enforceable right to approach a Court of Law on its basis. Even if these documents i.e. the Agreement to Sell and the Power of Attorney were registered, still it could not be said that the respondent would have acquired title over the property in question. At best, on the basis of the registered agreement to sell, he could have claimed relief of specific performance in appropriate proceedings. In this regard, reference may be made to sections 17 and 49 of the Registration Act and section 54 of the Transfer of Property Act, 1882”.

It is held further:

         

11. Law is well settled that no right, title or interest in immovable property can be conferred without a registered document. Even the judgment of this Court in the case of Suraj Lamps & Industries (supra) lays down the same proposition. Reference may also be made to the following judgments of this Court:

(i) Ameer Minhaj Vs. Deirdre Elizabeth (Wright) Issar and Others  (2018) 7 SCC 639

(ii) Balram Singh Vs. Kelo Devi In Civil Appeal No. 6733 of 2022

(iii) M/S Paul Rubber Industries Private Limited Vs. Amit Chand Mitra & Anr In SLP (C) No. 15774 of 2022.”

 

The embargo put on registration of documents would not override the statutory provision so as to confer title on the basis of unregistered documents with respect to immovable property. Once this is the settled position, the respondent could not have maintained the suit for possession and mesne profits against the appellant, who was admittedly in possession of the property in question whether as an owner or a licensee.

The judgment in Suraj Lamps & Industries (supra) would be prospective is also misplaced. The requirement of compulsory registration and effect on non-registration emanates from the statutes, in particular the Registration Act and the Transfer of Property Act. The ratio in Suraj Lamps & Industries (supra) only approves the provisions in the two enactments. Earlier judgments of this Court have taken the same view.

 

Ameer Minhaj Vs. Deirdre Elizabeth (Wright) Issar and Others  (2018) 7 SCC 639

The core issue in the above case was whether the suit based on an agreement and on the basis of which relief of specific performance has been claimed, could be received as evidence as it is not a registered document. 

Section 17 may be perused as under:

“17. Documents of which registration is compulsory:­ 

(1)   The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864 or The Indian Registration Act 1866, or the Indian Registration Act,1871, or the Indian Registration Act,1877, or this Act came or comes into force, namely:­

(1A) The documents containing contracts to transfer for consideration, any immoveable property for the purpose of section 53 A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the of the Registration and Other Related laws(Amendment)   Act,   2001 and if such documents are  not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.

It may also be apt to illustrate as to which instruments relating to immoveable property shall have to be mandatorily registered as per Secrion17, if the value, if more than Rs 100/-:

(a) Instruments of Gift;

(b) Other non testamentary instruments which creates or purports to create, declare, assign, limit or extinguish , whether vested or contingent;

(c)  Non-testamentary instruments acknowledging receipt or payment of any consideration relating to creation, declaration, assignment, limitation or extinguishment of any right, title, interest;

(d) Lease from year to year or for any term exceeding one year or reserving yearly rent;

(e) Other non-testamentary instruments assigning, transferring any decree or order of court when it purports to create or create, declare, assign, limit or extinguish any right, title or interest whether vested or contingent

However, the following shall be exempted from the aforesaid Section 17 (1) (b) & (c):

(i)          Any composite deed;

(ii)        Instruments related to share in joint stock company, even if part of it related to immoveable property

(iii)       Any debenture issued by the such company while not creating, declaring, assigning, limiting , extinguishing any rights in immoveable properties except by way of security;

(iv)       Any endorsement upon or transfer of any debenture issued by any such company;

(v)         Any document other than specified in Section 17 (A) not in itself creating any right, title or interest in immoveable properties , but merely creating a right to obtain another document;

(vi)       Any decree or order of court except relating to rights in immoveable properties including by way of compromise etc.

(vii)      Any grant of immoveable property by the Government;

(viii)    Any instrument of partition made by a Revenue Officer’

(ix)       Any order granting a loan or instrument of collateral security granted under the Land Improvement Act 1871 or the Land Improvement Loans Act 1883;

(x)         Any order granting loan under the Agriculturist, Loans Act,1884;

(xi)       Any order made under the charitable Endowments Act,1890;

(xii)     Any endorsement on a mortgage deed acknowledging the payment of whole or any p[art of mortgage money, when it does not purport to extinguish mortgage;

(xiii)    Any certificate of sale granted to the purchaser of property sold in public auction by Civil or Revenue Officer.    

The Section 17 (1) (A) came into force with effect from 24^th September 2001.

(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.

 

The Supreme Court in Ameer Minhaj (Supra) has held that on a plain reading of this provision, it is amply clear that the document containing contract to transfer the right, title or interest in an immoveable property for consideration is required to be registered, if the party wants to rely on the same for the purposes of Section 53A of the 1882 Act to protect its possession over the stated property. If it is not a registered document, the only consequence provided in this provision is to declare that such document shall have no effect for the purposes of the said Section 53A of the 1882 Act.  The issue is no more res integra.  In S. Kaladevi Vs V.R Somasundaram & Ors -SLP  (C) 1451/2009, the Supreme Court has reiterated the legal position that when an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received as evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of the 1908 Act.  

Section 18 of the Registration Act,1908 lists the instruments where registration is optional. These instruments are as under:

(a)         Instruments (other than gift or Will) purporting to create rights vested or contingent relating to immovable properties if the value if less than Rs 100;

(b)         Instruments acknowledging receipt or payment of any consideration on account of creating. Limiting, extinguishing of such right, title and interest;

(c)         Lease of immoveable properties not exceeding one year;

(d)        Instruments transferring or assigning any decree or order of a court of value less than 100 Rs;

(e)         Instruments purports to or operate to create, declare, assign, limit or extinguish any rights etc in moveable properties;

(f)          Wills;

(g)         All other documents not required to be registered u/s 17 of the Registration Act 1908.  

 Section 49 of the 1908 Act reads thus:

“49. Effect of non­-registration of documents required to be registered.­ No document required by section 17 [or by any   provision of the  Transfer of Property   Act, 1882   (4   of 1882)], to be registered shall­

(a) affect   any   immovable   property   comprised therein, or  

(b) confer any power to adopt, or 

(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been  registered:

Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the  Specific Relief Act, 1877, or as evidence of any collateral transaction not required to be effected by registered instrument.”

The Supreme Court has added one more principle thereto that a document is required to be registered, but if unregistered, can still be admitted as evidence of a contract in a suit for specific performance. In view of this exposition, if the conclusion recorded by a court that the sale agreement is inadmissible in evidence, will have to be understood to mean that the document though exhibited, will bear an endorsement that it is admissible only as evidence of the agreement to sell under the proviso to Section 49  of the 1908 Act and shall not have any effect for the purposes of Section 53A of the 1882 Act. In that,  it is received as evidence of a contract in a suit for specific performance and nothing more. The genuineness, validity and binding nature of the document or the fact that it is hit by the provisions of the 1882  Act  or  the  1899  Act,  as the case may be, will have to be adjudicated at the appropriate stage as noted by the Trial Court after the parties adduce oral and documentary evidence.  

If a registered General Power of Attorney,  has been executed by  the title holder, being a registered document, there shall be a legal, rebuttable presumption that the same has been duly stamped. If it is hit by the provisions of the 1882 Act or the 1899 Act can be decided after the parties adduce oral and documentary evidence. The principal document, namely, the agreement to sell was executed prior to coming into force of Section 17 (1A) of   the 1908   Act, it may be noted that provision has been made applicable prospectively. Hence, the same was not required to be compulsorily registered at the time of its execution.  Even if it was required to be registered, keeping in view the purport of Section 49 read with Section 17(1A) of the 1908 Act, the same could be received as evidence for a limited purpose, without having any effect for the purposes of Section 53A of 1882 Act.

The Supreme Court in KB Saha & Sons Pvt Ltd Vs Department Consultant Pvt Ltd (2008) 8 SCC 564 has culled out the following principles:-

"1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act.

2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49  of the Registration Act.

3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.

4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.

5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose."

It is further observed that to the aforesaid principles, one more principle may be added, namely, that a document required to be registered, if unregistered, can be admitted in evidence as evidence of a contract in a suit for specific performance.

From the above discussion and after having recourse to the law laid down by Supreme Court including the recent judgment in Shakeel Ahmed (Supra), Supreme Court has categorically held that no unregistered instruments relating to immoveable properties shall be valid, unless it is exempted under the Registration act 1908.The Supreme Court has also sought to allay any misconception as regards Suraj Lamp (Supra) and the fact that it was prospective in nature. It is clearly held that no right, title and interest in immoveable properties vide unregistered instruments and also under Power of Attorney, agreement to sell could be held to be valid. The Supreme Court after taking note of Section 17 and 49 of The Registration act 1908 has further observed that even if these documents i.e. the Agreement to Sell and the Power of Attorney were registered, still it could not be said that the respondent would have acquired title over the property in question. At best, on the basis of the registered agreement to sell, a purchaser could claim relief of specific performance in appropriate proceedings.

                                           ------

Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com   

 

 

 

 

 

TRANSIT ANTICIPATORY BAIL: PARAMETER REDEFINED

 

Transit ANTICIPATORY bail: parameter REDEFINED

 

 

Bail and not jail is the basic concept and often reiterated by Supreme Court. In a non- bailable offence, unless, the charge relates to heinous offence, the basic rule holds good. Even when someone seeks anticipatory bail, if probable innocence of accused loom large, the anticipatory bail could be granted. The transit anticipatory bail is some time applied for, in case, the F.I.R is registered in the jurisdiction outside of state or in far off place or places and the accused may be seeking interim protection till such time the accused could arrange for seeking anticipatory bail from the courts of competent jurisdiction. This is an interim measure with a view to accord short term insulation to the accused with a view to enable him to approach competent court of jurisdiction.

 

On 20the November 2023, the Supreme Court has revisited the very notion and concept of transit anticipatory bail in a matter captioned as Priya Indoria Vs State of Karnataka & Ors arising out of SLP (Crl) Nos. 1143-1146 of 2023.

The following points for consideration emerged before the Supreme Court

i. Whether the power of the High Court or the Court of Session to grant anticipatory bail under Section 438 of the CrPC could be exercised with respect to an FIR registered outside the territorial jurisdiction of the said Court?

ii. 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 of the CrPC before a Court of competent jurisdiction is consistent with the administration of criminal justice?

The Supreme Court on the very anvil had culled out salient features of Section 438 of CrPC as under:

i. It confers a statutory right upon any person who has a reason to believe that he may be arrested in relation to the commission of a non-bailable offence.

ii. The statutory right consists of the right to apply before the High Court or the Court of Session for a direction that in the event of such arrest, he shall be released on bail.

iii. The Parliament has provided ample legislative guidance on the factors that may guide the High Court or the Court of Session while considering the application for grant of an anticipatory bail.

iv. The substantive factors consist of the nature and gravity of the accusation, the criminal antecedents of the applicant, the risk of the applicant absconding from justice or not cooperating with the criminal justice administration and the possibility of an accusation made in bad faith with the aim of injuring or humiliating the applicant.

v. In addition to the aforementioned substantive factors guiding the exercise of judicial discretion, Section 438 of CrPC engrafts certain procedural requirements. The High Court or the Court of Session may grant an interim order under Section 438(1) of CrPC in case the facts and averments in the application satisfy the factors laid down. However, the proviso to Section 438(1) of CrPC provides that

if such an interim order is denied, the officer in-charge of a police station is at liberty to arrest the applicant without warrant. Even if the interim order is made in favour of the applicant, the High Court or the Court of Session is mandated under Section 438 (1A) of CrPC to cause a notice of not less than seven days along with a copy of the interim order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application is finally heard by the Court. The Court is also empowered under Section 438 (1B) of CrPC to allow the Public Prosecutor’s application to make the presence of the applicant seeking anticipatory 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 CrPC, 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 be released on bail. If a Magistrate taking cognizance of an offence decides that a warrant should be issued in the first instance against that person, he is empowered to issue a bailable warrant in conformity with the direction of the Court under Section 438(1).

viii. The Parliament has inserted clause (4) to Section 438 of CrPC vide the Criminal Law (Amendment) Act, 2018, thereby stipulating that the remedy under Section 438 of CrPC cannot be resorted to by any person accused of having committed an offence under Sections 376(3), 376-AB, 376-DA or 376-DB of the IPC.

ix. The State Legislatures of Maharashtra, Odisha, Uttar Pradesh and West Bengal have enacted State amendments to Section 438 of CrPC.

 

The perusal of  Section 438 of Cr.P.C shall reveal that the term ‘High Court or the Court of Session’ as the case may be is used, but there has been ambiguity as regards whether a ‘High Court or the Court of Session’ can be any ‘High Court or Court of Session’ across the country. The clarity thus are needed about the power of a Court to grant anticipatory bail for an offence that is registered outside its territorial jurisdiction, in other words, whether ‘extra-territorial anticipatory bail’ can be granted by a High Court or Court of Session to a person apprehending arrest is a moot point.

It is worthwhile to mention that Justice V.S. Malimath Committee Report on Reforms in Criminal Justice System, in section 7.33, page 121, had proposed that the provision regarding anticipatory bail may be retained, however, this should be subject to two conditions: (i) that the Court would hear the Public Prosecutor; and (ii) that the petition for anticipatory bail should be heard only by the Court of competent jurisdiction. The prescription of transit bail was not there.

At the very outset it may be stated that anticipatory bail and ‘transit anticipatory bail’ are different, as the word “transit” implies it for a limited period,  whereas anticipatory bail without prefix could be for longer duration and even till conclusion of trial in a criminal case. The court has in principle been adopting the ‘transit anticipatory bail’ approach. The aforesaid for reference may be found in State of Assam vs. Brojen Gogol (Dr), (1998) 1 SCC 397 (Brojen Gogol) and Amar Nath Neogi vs. State of Jharkhand, (2018) 11 SCC 797.

Similarly, in Nathu Singh vs. State of U.P., (2021) 6 SCC 64 a liberal approach had been emphasized 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 of Constitution of India.

That the Supreme Court in Raghubans Dubey vs. State of Bihar (1967) 2 SCR 423 (Raghubans Dubey) has held that the Magistrate takes cognizance of an offence and not the offender. The territorial jurisdiction assumes paramount importance as the offender, unlike the defendant in a civil suit instituted as per the Civil Procedure Code, 1908, has no role to play as far as the conferment of jurisdiction of a Court is concerned.  

No one can be oblivious to the probable difficulty could be faced by a prospective accused who may face an FIR lodged in a particular state , whereas he is the resident of other state and thus apprehends arrest by the police in another State. The Supreme Court in Balchand Jain vs. State of M.P., (1976) 4 SCC 572 and Sushila Aggarwal vs. NCT of Delhi, (2020) 5 SCC 1 has 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 Cr.P.C. In a fast paced life, where the movement of a citizen is frequent and fast, an offender may apprehend arrest for any reason and even for a statement made in a place of residence in one State, but the offended person may be residing in another State.

 

The Supreme Court has delved in the aspect. It is thus observed that in order to prevent the abuse of the process of law, this may be necessary that interim protection for a limited period could be granted by the Court nearest to the residence of the accused apprehending arrest. No doubt, with a view to avoid the prospect of forum shopping certain safeguards should be there for availing grant of interim protection as follows:

(i)          The residence proof within the territorial limit of the court, in which the interim protection is sought;

(ii)        If it is otherwise, the substantive reasons should be ascribed for doing so;

(iii)       There should be disclosure  about the nature of apprehension of arrest in the area wherein he/she does not reside;

 (iv)    The interim protection should be for limited period

(v)         The concerned public prosecutor of the Court wherein interim application is moved may be informed in advance about the filing of the interim protection application so as to enable the prosecutor to ascertain the nature of the interim protection application, and to contact the concerned police station with a view to elicit information about the stage and nature of the investigation of the crime committed;

(vi)       The limited duration of the interim protection shall be necessary to balance the liberty of the individual from arrest in an alleged frivolous case and to ensure further that the regular anticipatory bail is only granted by a Court of competent jurisdiction; and

(vi)    Interim protection should not be granted unless the requirements enumerated under Section 438 of CrPC are satisfied.

 

No doubt, the statutory provisions of Cr.P.C, more particularly, Section 177-170 of Chapter XIII shall be of relevance, as Section 177 mandates that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. Section 178 deals with case of uncertainty or ambiguity regarding the local areas where an offence is committed, it provides 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. Similarly, Section 179 contains the provision that 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.

MATRIMONIAL DISPUTES & JURISDICTION

Whether, the ordinary place of inquiry and trial would include the place where the complainant-wife resides after being separated from her husband Section 177 of the CrPC, especially in matrimonial cases alleging cruelty and domestic violence, alleged by the wife, has advanced from the view held in the case of State of Bihar vs. Deokaran Nenshi, (1972) 2 SCC 890; Sujata Mukherjee (Smt.) vs. Prashant Kumar Mukherjee, (1997) 5 SCC 30; Y. Abraham Ajith vs. Inspector of Police, Chennai, (2004) 8 SCC 100, Ramesh vs. State of T.N. (2005) 3 SCC 507; Manish Ratan vs. State of M.P., (2007) 1 SCC 262

 

The basic principle is that if none of the ingredients constituting the offence can be said to have occurred within the local jurisdiction, that jurisdiction cannot be the ordinary place of investigation and trial of a matrimonial offence. A three judge Bench of Supreme Court has however clarified in Rupali Devi vs. State of U.P., (2019) 5 SCC 384 that adverse effects on mental health of the wife even while residing in her parental home on account of the acts committed in the matrimonial home would amount to commission of cruelty within the meaning of Section 498A at the parental home. It was held that the Courts at the place where the wife takes shelter after leaving or being driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, depending on the factual situation, also have jurisdiction to entertain a complaint alleging commission of offences under Section 498-A of the IPC.

The Supreme Court in Priya Indoria (Supra) in para no. 41 has categorically settled the issue as under:

 

“41. 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 Supreme Court has further held in Priya Indoria (Supra) that Supreme Court is mindful of the fact that the accused cannot seek full-fledged anticipatory bail in a State where he is a resident when the FIR has been registered in a different State. However,, he would be entitled to seek a transit anticipatory bail from the Court of Session or High Court in the State where he is a resident which necessarily has to be of a limited duration so as to seek regular anticipatory bail from the Court of competent jurisdiction. The need for such a provision is to secure the liberty of the individual concerned. Since anticipatory bail as well as transit anticipatory bail are intrinsically linked to personal liberty under Article 21 of the Constitution of India. The Supreme Court has thus 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. Needless to say, the Court granting transit anticipatory bail would obviously examine the degree and seriousness of the apprehension expressed by the person who seeks transit anticipatory bail; while the object underlying exercise of such jurisdiction is to thwart arbitrary police action and to protect personal liberty besides providing immediate access to justice though within a limited conspectus.

 

The Supreme Court in Priya Indoria (Supra) in para 46 has summarized as under:

 

“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 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”.

 

The hon’ble Supreme Court after taking note of article 21 of Constitution of India and the hardship that may be caused to a person accused of non bailable offence is pleased to settle the ambiguity and set aside the judgment of `Patna High Court in Syed Zafrul Hassan vs. State, 1986 SCC Online Pat 3 and judgment of Calcutta High Court in Sadhan Chandra Kolay vs. State, 1998 SCC Online Cal 382 to the extent that the High Court held that it does not possess jurisdiction to grant extra-territorial anticipatory bail i.e. even a limited or transit anticipatory bail. The Supreme Court has reiterated that however power of granting power of transit bail to grant extra-territorial anticipatory bail should be exercised in exceptional and compelling circumstances only which means where, denying transit anticipatory bail or interim protection to enable the applicant to make an application under Section 438 of Cr.P.C before a Court of competent jurisdiction would cause irremediable and irreversible prejudice to the applicant. The Court, while considering such an application for extra-territorial anticipatory bail, in case it deems fit may grant interim protection instead for a fixed period and direct the applicant to make an application before a Court of competent jurisdiction.

                                                   ---------

                                           Anil K Khaware

                                           Founder & Senior associate

                                           Societylawandjustice.com