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
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