New Delhi: The Supreme Court Monday held that a high court or sessions court can grant anticipatory bail for a limited period to a person apprehending arrest in connection with an FIR registered outside their territorial jurisdiction.
A bench comprising justices B V Nagarathna and Ujjal Bhuyan said: “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”.
Additional solicitor general Vikramjit Banerjee assisted the court as an amicus curiae. The apex court noted that it is dealing with ramifications, which would arise in the context of Section 438 of CrPC and the jurisdiction of the concerned sessions court or high court to grant pre-arrest bail when the FIR is not registered within the territorial jurisdiction of a particular district or state but in a different state.
The apex court, in its 85-page judgment, observed 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. “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. It would also be against the principles of access to justice”, it said.
The apex court said 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 …..”, said the bench.
The bench said 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 court for seeking full-fledged anticipatory bail.
The bench stressed that such power to grant extra-territorial anticipatory bail should be exercised in exceptional and compelling circumstances. The apex court’s judgment came on an appeal of a woman challenging the grant of anticipatory bail by a Bengaluru local court to her estranged husband and his family members in connection with a dowry harassment FIR lodged at Chirawa Police Station at Jhunjhunu district in Rajasthan. Answering in the affirmative, Justice Nagarathna, who authored the judgment on behalf of the bench, laid down certain conditions for granting such a relief.
The apex court said 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. “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”, said the bench.
The bench said the grounds raised by the applicant may be a reasonable and immediate threat to life, personal liberty and bodily harm in the jurisdiction where the FIR is registered, and the apprehension of violation of the right to liberty or impediments owing to arbitrariness.
The court set aside anticipatory bail granted by Additional City Civil and Sessions Judge Bengaluru City to a man and his family members in an FIR lodged out of a matrimonial dispute by his wife at Chirawa in Rajasthan. The bench said the investigating officer and the prosecutor were not issued notice by the court. The apex court directed that no coercive steps may be taken against the accused for the next four weeks, to enable them to approach the jurisdictional court in Chirawa, Rajasthan for anticipatory bail.
The bench also clarified the accused cannot travel to any other State only for the purpose of seeking anticipatory bail, in order to avoid forum shopping and abuse of the process of law as well as the court.
In Section 438 of CrPC, the bench said, 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," said the bench.
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