20 Nov 2023 7:07 AM GMT
The Supreme Court today held that the Sessions Court or High Court that would have the power to grant pre-arrest bail, when the FIR is not registered within the territory of a particular State but in a different State.
It observed “Considering the constitutional imperative of protecting citizen’s right to life, and personal liberty, the HC/Session should grant limited anticipatory bail in the form of interim protection under section 438 of CrPC in the interest of justice with respect to FIR registered outside the territorial jurisdiction of the said court.
However, it laid down the following conditions-
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-
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.”
It referred to Anita Kushwaha’s case which held access to justice being part of Art. 21.
In the present circumstances, 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.
It held“The impugned order of Sessions Judge do not take note of respondent no.2 for allowing the criminal miscellaneous petition. Orders are set aside. However, in the interest of justice, no coercive steps may be taken against the accused for the next 4 weeks to enable them to approach the jurisdictional court in Rajasthan for anticipatory bail. In case the application is made Sessions Court/HC, the same shall be decided expeditiously.”
Judgment to be uploaded.
Case title: Priya Indoria v. State of Karnataka
Citation: SLP(Crl) No. 011423 - 011426 / 2023