AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
1986 (1) TMI 382
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....a case under Sections 467/468/471/420/120B of the Indian Penal Code against them has been registered in the Jhinkpani Police Station, District Singhbhum, on the 18th of July, 1985 with regard to the supply of 800 metric tons of cement by the said company to the Government. It is unnecessary to recount the details of the allegations in the first information report, and it suffices that apprehending the arrest in pursuance thereof the petitioners have moved the present criminal miscellaneous petition. 3. At the motion stage itself, the issue came up for consideration that since the commission of the offence was within the district of Singhbhum, the Ranchi Bench of this Court alone would have jurisdiction. However, on behalf of the petitioners the stand taken was that a person apprehending arrest in any part of the country or the State can move any High Court or any Court of Session for anticipatory bail. Reliance was placed on a Division Bench judgment of this Court in Madan Mohan Choudhary v. State of Bihar Expressing some doubt about the correctness of the said view, the learned Judges of the Division Bench referred the matter for an authoritative adjudication by a larger Bench.....
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....a bailable warrant in conformity with the direction of the Court under Sub-section (1)." Ere one adverts in detail to the provision aforesaid, it would be apt to consider the matter on principle. On the larger perspective in criminal jurisprudence it seems elementary that the concept of territorial jurisdiction is the inarticulate premise which underlies all references, to a Court by the legislature. Whenever in statute a reference is made to the High Court or the Court of Session or that of the Magistrate, it is inherent in such language that it is a Court having territorial jurisdiction over the offence. This is indeed so implicit and necessary that if it were not to be so, it would have to be repeated ad nauseam in every statute as the High Court having jurisdiction or the Court of Session having jurisdiction or the Magistrate having jurisdiction, etc. The law herein assumes in this context that the reference to the Court is in terms to the Court having territorial jurisdiction. 6. Now this inherent concept of Courts having jurisdiction over specific territory and not beyond it, is indeed essential for the very maintenance of the comity of the Courts. The concept of territ....
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..... 7. Reference may also instructively be made to Section 3(25) of the General Clauses Act, 1897 and to Section 4(25) of the Bihar and Orissa General Clauses Act, 1917, which read as under :-- Central Act : "3..... In this Act, and in all Central Acts and Regulations made after the commencement of this Act, unless there is anything repugnant in the subject or context.-- X X X (25) 'High Court', used with reference to civil proceedings, shall mean the highest Civil Court of Appeal (not including the Supreme Court) in the part of India in which "the Act or Regulation containing the -expression operates; x x x x" State Act: "4..... In all Bihar and Orissa Acts and Bihar Acts, unless there is anything repugnant in the subject or context,-- X X X X (25) 'High Court' used with reference to civil proceedings, shall mean the highest Civil Court of Appeal in the part of Bihar and Orissa, in which the Act containing the expression operates; x x x x" From the above provisions also it would fol....
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....Court of Session" in Section 438 means such a Court within whose territorial jurisdiction the accusation of having committed a non-bailable offence arises or is made. The apprehension of arrest by such accused is with regard to that particular offence having a particular locale and not generically. The clear mandate of the language of Section 438 and the inherent limitations of territorial jurisdiction cannot be overridden by any high-flown and doctrinaire considerations. 9. Yet again the context and positioning of Section 438 in the Code is itself a clear pointer to such a limitation. The section is laid in Chapter XXXIII making provisions as to bail and bonds. It is preceded by Section 437 providing when a bail can be taken in case of a non-bailable offence by Courts other than High Court or the Court of Session. Clearly enough Section 437 pertains to and provides for the grant of bail by Magistrates having territorial jurisdiction in non-bailable offences. Even the learned counsel for the petitioners did not take the untenable stand that under Section 437 any Magistrate irrespective of the locale of the crime can assume jurisdiction and grant bail in cases of non-bailable off....
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.... person arrested before the Court before which he is required by law to produce such person : Provided that such delay shall not, in any case, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court." " 167. Procedure when investigation cannot be completed in twenty-four hours.-- X X X X (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction. X X X X " The aforesaid provisions highlight the basic rule that offences are to be inquired into and tried in a court having geographical jurisdiction over the locale of crime. Even if the accused is found far beyond the arena of th....
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....he commission of offence and not by the shady or evasive movements of the offender. If the latter were to be so, criminal jurisdiction would keep on shifting and be nebulous with the movements of the offender Where there are many offenders for the crime, they may fly to different areas and thus create a chaos of the criminal Courts having jurisdiction for the offence. That is a situation not easy to be countenanced. Applying the larger principle in Raghubans Dubey v. State of Bihar (supra) under Section 438 also, the cognizance is taken of offence and -- to employ its own language -- where the accusation of having committed a non-bailable offence arises. The focal point is the spot of the commission, of the offence and not the flying movements of a fugitive offender. 12. In the alternative, Mr. Braj Kishore Prasad has lowered his sites a little for contending that the nexus for Section 438 is the residence of the accused person and not the locale of the commission of the offence. The argument again was that the apprehension of arrest arises where a man is or in any case where he is permanently resident and that would confer jurisdiction on the High Court or the Court of Session.....
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....ich reference is made hereinafter. However, it appears to me that his reliance on the second proviso to Section 81(1) seems to boomerang on the petitioners' case rather than come to its aid. The relevant provision is in the following terms : -- "81. Procedure by Magistrate before whom such person arrested is brought-- (1) The Executive Magistrate or District Superintendent of Police or Commissioner of Police shall, if the person arrested appears to be the person intended by the Court which issued the warrant, direct his removal in custody to such Court; x x x x x Provided further that if the offence is a non-bailable one, it shall be lawful for the Chief Judicial Magistrate (subject to the provisions of Section 437 or the Sessions Judge, of the district in which the arrest is made on consideration of the information and the documents referred to in Sub-section (2) of Section 78, to release such person on bail." On behalf of the petitioners it was nought to be argued that the aforesaid proviso conferred a power on a Chief Judicial Magistrate or a Sessions Judge other than the one having jurisdiction over the ar....
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....e person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. A direction under Section 438 is intended to confer conditional immunity from the touch as envisaged by Section 46(1) or confinement." 14. In fairness to Mr. Lala Kailash Behari Prasad, the learned counsel for the respondent-State, we must notice his persistent emphasis on the territorial jurisdiction of the criminal courts and the rigidity of such a rule as also its necessity in public interest. He assailed the sentimental grounds of the alleged hardship to an accused person for being called upon to go to the Court having territorial jurisdiction over the offence for seeking anticipatory bail as utterly unwarranted. In somewhat picturesque language he pointed out that if the accused could afford the luxury of committing an offence far away from his place of residence, he cannot avoid the burden of invoking the jurisdiction of the Court where he chose to commit the offence. According to him and, in our view, rightly such chimerical considerations are irrelevant in the context of the commission and trial of offences. It was forc....
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....ia v. State of Punjab, AIR 1980 SC 1632 : (1980 Cri LJ 1125) which has been relied upon for taking a contrary view. With the deepest respect, however, I fail to see how that judgment is any warrant for the proposition that any Court of Session or High Court other than one having territorial jurisdiction over the commission of the offence can also intrude into the sphere of the grant of anticipatory bail. In Gurbaksh Singh Sibbia's case the offence was alleged to be committed in the State 6f Punjab and the first information report was lodged at Ludhiana. The anticipatory bail was sought in the High Court having jurisdiction over the State of Punjab and the case was heard and determined by the Full Bench in Gurbaksh Singh Sibia v. State of Punjab, AIR 1978 Punj and Har 1 : (1978 Cri LJ 20), to which one of us was a party. Neither the facts nor the observations of their Lordships of the Supreme Court in Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632 : (1980 Cri LJ 1125) can in any way lend credence to the concept of extra territorial jurisdiction of the High Court or a Court of Session for the grant of anticipatory bail which is attempted to be canvassed on behalf of t....
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....the Public Prosecutor or affording him any opportunity to get the necessary instructions from the investigating agency. The various significant aspects which have been discussed in the earlier part of this judgment were not at all adverted to. The attempt to assume jurisdiction extraterritorially over areas beyond the geographical limits of the State for which the High Court is constituted has recently been severely castigated by their Lordships in Samarias Trading Co. Pvt. Ltd. v. S. Samuel, AIR 1985 SC 61, wherein it was observed as follows : "In fact, we have come across instances in the past where the Calcutta High Court had exercised jurisdiction in matters in which no part of the cause of action arose within its jurisdiction, a situation which could surely not have arisen if a written and not an oral application had been made." With the deepest deference I regret my inability to subscribe to the views of the Calcutta High Court typified in B. R. Sinha v. The State and feel compelled to record my dissent therefrom. 19. Reference must also be made to the judgment of the learned single Judge of the Karnataka High Court in Dr. L. R. Naidu v. State of K....
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...., dissent from the view of the learned single Judge of the Karnataka High Court in Dr. L. R. Naidu v. State of Karnataka (1984 Cri LJ 757). 20. Coming now to the judgments of this Court, reference may first be made to the very wide-ranging observations of the learned single Judge in Bhola Lal v. State of Bihar, 1984 Pat LJR 450. Therein it has been said in categoric terms that an application for anticipatory bail can be entertained irrespective of the place where the case is registered or the offence is committed, provided that the Court is satisfied that the petitioner has got a reasonable apprehension and he lives somewhere or even intends to live somewhere within its territorial jurisdiction. With the deepest respect, I find myself wholly unable to concur with this line of reasoning for considerations exhaustively delineated earlier, Basic reliance for the view taken again was on the Delhi High Court's judgment in Pritam Singh v. State of Punjab (1980 Cri LJ 11741 and the line of decision of the Calcutta High Court in B. R. Sinha v. The State which have already been considered and dissented from. The learned Judge otherwise viewed the power of arrest by the police having ....
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....r where there are many accused persons in a case, numerous High Courts and innumerable Courts of Session may exercise jurisdiction with regard thereto. This would inevitably and necessarily lead to contradictory orders and overlapping jurisdictions. The practical difficulties of assuming jurisdiction and considering and granting anticipatory bail at Ernakulam for an offence allegedly committed in Srinagar in a country as vast as ours, are too patent to need elaboration. In Gurbaksh Singh Sibbia's case: AIR 1980 SC 1632 :(1980 Cri LJ 1125) their Lordships without being inflexible had directed that notice should issue to the Public Prosecutor or the Government Advocate forth-with and the question of bail should be re-examined in the light of respective contentions of the parties under Section 438. How is a High Court or a Court of Session in one State to issue or demand compliance with a notice against the Public Prosecutor or the Government Advocate of another faraway State? Whether such a Court would have authority to do so or the investigating agencies of another State are bound to comply with are the moot questions. The difficulty and indeed the futility of such was rightly n....