TaxTMI 
TaxTMI 
2023 (11) TMI 1286
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....y of the injured registered a First Information Report (FIR) for the offence of causing grievous hurt Under Section 326 of the Indian Penal Code (IPC) at the Bicholim Police Station, Goa. On coming to know about the same and apprehending his arrest, the alleged assailant files an application for anticipatory bail before the District and Sessions Judge, Sundargarh, Odisha, having jurisdiction over Rourkela. Whether the alleged assailant's application is maintainable or not? Such a question has come for consideration before this Court in the present appeal. Facts of the case: 2.1. The present appeals have been filed by the complainant-wife, against the orders dated 07.07.2022 passed by the learned Additional City Civil and Sessions Judge Bengaluru City in Criminal Misc. No. 3941/2022, 3943/2022, 3944/2022 and 3945/2022. By the said orders, the learned Additional City Civil and Sessions Judge Bengaluru City has granted anticipatory bail to the Accused-husband and his family namely, Accused Nos. 2, 3 & 4 in FIR No. 43/2022 which alleged commission of offences Under Sections 498A, 406 and 323 of the Indian Penal Code, 1860 ('IPC', for short), registered by the complain....
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....or less than a year of marriage that the couple spent together, the Accused-husband perpetrated cruelty upon her by frequently threatening to divorce her and get married for the second time. 3.7. The Accused-husband started threatening and abusing the complainant-wife and stated that the complainant-wife was mentally and physically incapable of intimate relationships. Additionally, he slapped the complainant-wife about a month after the marriage and said that he was not inclined for marriage and preferred to live a free life. He threatened the complainant-wife that if she wanted to stay together, she would have to fulfil the dowry demand. 3.8. The complainant-wife informed her in-laws, being Accused Nos. 2, 3 and 4, about the refusal of the Accused-husband to consummate the marriage and the physical assault committed on her. Allegedly, her in-laws dismissed her by saying that it was not necessary to have a relationship with the husband and as such, being a husband, he had the right to beat her. 3.9. Deeply agonized by this experience, a demand regarding purchase of a scooter for the Accused-husband was met. Rs. 1,01,326/- was to be paid online from complainant-wife's m....
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....embers, Accused Nos. 2, 3 & 4. 4.1. It is clear from a reading of the impugned orders that both Bagalkunte Police Station, Bengaluru and Chirawa Police Station, Rajasthan, were Respondents in the Bail Application. Both police stations were represented by the same Public Prosecutor before the Additional City Civil and Sessions Judge, Bengaluru City. 4.2. The learned Judge noted that the Investigating Officer had commenced the investigation, conducted mahazar, recorded the statement of witnesses and completed a major part of the investigation. It was reasoned that the involvement of the Accused-husband and his family members, being Accused Nos. 2, 3 and 4, was yet to be proved. The learned Judge further reasoned that since the alleged offences were not punishable with death or imprisonment for life and are to be tried before the Magistrate, there was absolutely no reason to deny the benefit of anticipatory bail. 4.3. When the police of Chirawa called upon the Accused-husband and his family members, Accused Nos. 2, 3 & 4, it was realised that the learned Sessions Judge, Bengaluru, had granted them anticipatory bail. This was confirmed by the complainant-wife when she checked ....
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....borating on the divergent approaches of various High Courts in the country regarding the grant of 'extra-territorial anticipatory bail', learned Amicus submitted that the Courts have evolved the 'transit anticipatory bail' approach to provide an equitable and interim relief enabling an Accused travelling a residing in a different State to seek anticipatory bail. Learned amicus clarified that anticipatory bail and 'transit anticipatory bail' are different, as the former may or may not be restricted to a time period, whereas the latter is always granted for a specific time period, until an Applicant can make an application for anticipatory bail before a Court that can take 'cognizance' of the offence. It was further submitted that this Court had adopted the 'transit anticipatory bail' approach in State of Assam v. Brojen Gogol (Dr), (1998) 1 SCC 397 (Brojen Gogol) and Amar Nath Neogi v. State of Jharkhand, (2018) 11 SCC 797. iii. Learned amicus further submitted that this Court in Nathu Singh v. State of U.P., (2021) 6 SCC 64 (Nathu Singh) had emphasized a liberal approach to the grant of anticipatory bail in view of the serious impact....
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....ke 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. That, in Dashrath Rupsingh Rathod v. State of Maharashtra, (2014) 9 SCC 129, it was observed that Section 177 of the Code of Criminal Procedure postulated that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. ii. Elaborating on the scheme of the Code of Criminal Procedure, Dr. Singhvi submitted that Chapter II of the Code of Criminal Procedure distributes adjudicatory duties amongst Magistrates and Courts as per territorial jurisdiction. Section 14 of the Code of Criminal Procedure specifically determines the jurisdiction of local Magistrate(s). The provisions granting power to take cognizance (Section 157) or power to investigate (Section 156), are in accordance with the concept of 'ordinary place of inquiry and trial,' as stated in Chapter XIII of the Code of Criminal Procedure. iii. Therefore, the Court under whose territorial jurisdiction the offence was committed becomes the Court of competent jurisdiction to pass al....
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....e. To buttress his contention, learned Senior Counsel submitted that the 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 subject to two conditions: that the Court would hear the Public Prosecutor; and that the petition for anticipatory bail should be heard only by the Court of competent jurisdiction. v. As an alternative form of relief to persons resident in a particular State but apprehending arrest by the police in another State, learned Senior Counsel relied upon judgments of this Court in Balchand Jain v. State of M.P., (1976) 4 SCC 572 (Balchand Jain) and Sushila Aggarwal v. NCT of Delhi, (2020) 5 SCC 1 (Sushila Aggarwal), which 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 Code of Criminal Procedure. It was submitted that in an age where the movement of a citizen is ....
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....t money as the Accused-husband had refused to pay an amount of Rs. 50,00,000/-. ii. That the anticipatory bail applications had been filed for securing protection from immediate arrest as the liberty of the Petitioner was at stake and instant protection was necessary to protect his fundamental rights. iii. That the apprehension of arrest was during the subsistence of the COVID-19 pandemic and he was under continuous pressure and threat of being arrested. The Accused-husband being the only earning member having a younger brother and an elderly ailing father, was compelled to seek protection of his life and limb because the complainant-wife's father had influential local contacts in the place where the FIR was registered, i.e., Chirawa, Rajasthan. There was a reasonable apprehension of his arrest, which was the guiding factor in filing the application before the Bengaluru Court. iv. Learned Counsel of the Accused-husband also questioned the bona fides of the complainant-wife by relying upon the delay in filing the present petition. It was further contended that the FIR was filed in Chirawa Police Station with the sole objective of causing harassment to ....
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....in a police officer is empowered to arrest a person who fails to comply with a notice for arrest subject to the orders of such Court. This is a Court that is competent to try the case. Section 167(2) empowers the nearest Magistrate to authorize the custody of an Accused for a period not exceeding 15 days, once he is produced before him, whether it is a Court of competent jurisdiction to try the case or not. If the Magistrate 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. Section 156 further postulates that any officer in-charge of a police station may investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. 9.4. Section 177 in Chapter XIII of the Code of Criminal Procedure mandates that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. In case of uncertainty or ambiguity regarding the local areas where an offence is committed, Section....
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....(1B) The presence of the Applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice. (2) When the High Court or the Court of Session makes a direction Under Sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including- (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) 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; (iii) a condition that the person shall not leave India without the previous permission of the Court; (iv) such other condition as may be imposed Under Sub-section (3) of Section 437, as if the bail were granted under that section. (3) If such person is th....
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....made in favour of the applicant, the High Court or the Court of Session is mandated Under Section 438 (1A) of Code of Criminal Procedure 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 Code of Criminal Procedure 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 Code of Criminal Procedure, 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 a....
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....n Jamini Mullick v. Emperor, (1909) ILR 36 Cal 174, the Calcutta High Court considered a case where the Presidency Magistrate had issued warrants for the arrest of certain persons as suspects in a murder case. The deceased had been found lying dead at night on the footpath and while at the inquest certain unknown persons were suspected, the Magistrate issued warrants when evidence casting suspicion on four individuals was produced. Therefore, the suspected individuals petitioned the Calcutta High Court for grant of bail. The Division Bench of Justices Mitra and Coxe granted pre-arrest bail to the suspected individuals. The judgment was prefaced by remarking that ordinarily the Court did not grant bail in cases of that kind, but emphasised on Section 498 of the erstwhile Code of Criminal Procedure to hold that the High Court could exercise revisionary jurisdiction and grant bail to any person. It was noted that the yardstick for the grant of relief of bail was whether there existed reasonable grounds to believe that the Accused were guilty of the offence. It was underlined that it was within the Magistrate's jurisdiction to release the Accused persons on bail but since the Magis....
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....rily be extremely rare, and by its very nature, the power to interfere with the discretion of an official such as a police-officer exercising statutory powers perhaps at some remote place, at the very earliest stages of an investigation, would require to be exercised with the very greatest care.' The Full Bench held that the Court needs to be satisfied that if it stayed its hands until the police-officer had himself exercised his discretion in the matter and refused, upon arrest, to grant bail, a grave or irreparable wrong or injustice might result, while at the same time preserving the interest of justice in so far as they related to the charge against such an Accused person. 10.4. It is observed that the Code of Criminal Procedure, 1898 did not contain any specific provision corresponding to the present Section 438 of Code of Criminal Procedure Under the old Code, there was a sharp difference of opinion amongst the various High Courts on the question of whether Courts had the inherent power to pass an order of bail in anticipation of arrest, the preponderance of view being that it did not have such power. 10.5. The concept of 'anticipatory bail' was clearly expl....
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....nts can occasionally possess extraordinary features, in Gurbaksh Singh Sibbia, it was stated that "when the even flow of life becomes turbid, the police can be called upon to inquire into charges arising out of political antagonism". The powerful processes of criminal law can then be perverted for achieving extraneous ends. Attendant upon such investigations, when the police are not free agents within their sphere of duty, is a great amount of inconvenience, harassment and humiliation that can even take the form of the parading of a respectable person in handcuffs, apparently on way to a Court of justice. The foul deed is done when an adversary is exposed to social ridicule and obloquy, no matter when and whether a conviction is secured or is at all possible. It is in order to meet such situations, though not limited to these contingencies, that the power to grant anticipatory bail was introduced into the Code of 1973. 10.8. Despite the inclusion of the provision for anticipatory bail in the Code of Criminal Procedure after the acceptance of the aforesaid recommendation, the expression "anticipatory bail" remained undefined in the Code of Criminal Procedure. This Court in Balcha....
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....ght to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 of Code of Criminal Procedure must be saved, not jettisoned. The considerations for grant of anticipatory bail were discussed in paragraph 31 of the said judgment which reads as under: 31. In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the Applicant by having him arrested, a direction for the release of the Applicant on bail in the event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable Rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that ....
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....il is a device to secure the individuals liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely. 36. Secondly, if an application for anticipatory bail is made to the High Court or the Court of Session it must apply its own mind to the question and decide whether a case has been made out for granting such relief. It cannot leave the question for the decision of the Magistrate concerned Under Section 437 of the Code, as and when an occasion arises. Such a course will defeat the very object of Section 438. 37. Thirdly, the filing of a first information report is not a condition precedent to the exercise of the power Under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed. 38. Fourthly, anticipatory bail can be granted even after an FIR is filed, so long as the Applicant has not been arrested. 39. Fifthly, the provisions of Section 438 cannot be invoked after the arrest of the Accused. The grant of "anticipatory bail" to an Accused who is under arrest involves a contradiction in terms, insof....
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....out any restriction on time. Normal conditions Under Section 437(3) read with Section 438(2) of Code of Criminal Procedure should be imposed. If there are specific facts or features in regard to any offence, it is open for the Court to impose any appropriate condition (including fixed nature of relief, or its being tied to an event), etc. 12.2. As regards the second question referred to this Court, it was held that the life or duration of an anticipatory bail order does not end normally at the time and stage when the Accused is summoned by the Court, or when charges are framed, but can continue till the end of the trial. Again, if there are any special or peculiar features necessitating the Court to limit the tenure of anticipatory bail, it is open for it to do so. 12.3. The following clarifications were also issued which are to be borne in mind while dealing with an application Under Section 438 of Code of Criminal Procedure: a) When an application is made seeking anticipatory bail, it should be based on concrete facts (and not vague or general allegations) relatable to one or other specific offence. The application should contain bare essential facts relating to th....
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....anner limit or restrict the rights or duties of the police or investigating agency, to investigate into the charges against the person who seeks and is granted pre-arrest bail. h) The observations in Gurbaksh Singh Sibbia regarding limited custody or deemed custody in the context of Section 27 of the Evidence Act, does not require the Accused to separately surrender and seek regular bail. i) It is open to the police or the investigating agency to move the Court concerned, which grants anticipatory bail, for a direction Under Section 439(2) to arrest the Accused, in the event of violation of any term, such as absconding, non- cooperating during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc. j) The correctness of an order granting bail can be considered by the appellate or superior Court at the behest of the State or investigating agency, and set aside the same on the ground that the Court granting it did not consider material facts or crucial circumstances. This does not amount to cancellation in terms of Section 439(2) Code of Criminal Procedure. k) In Siddharam....
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....re, which necessitates that the Court pass such an exceptional discretionary protection order for the shortest duration that is reasonably required. A period of 90 days, or three months, is an unreasonable period. Therefore, the impugned orders were set aside leaving it open to the investigating agency to proceed with the matters in accordance with law and complete the investigation. If the applicants were in the meanwhile in judicial custody, their applications for regular bail could be considered by the competent Court, uninfluenced by the observations made in the order. 14. After marshalling the entire range of juridical materials on the subject of anticipatory bail and the perception of its abuse, the Constitution Bench in Sushila Aggarwal held the judgments of this Court that postulated greater limitations on the grant of anticipatory bail to be not good law. 15. The upshot of the above discussion is that the march of criminal law has been towards chiselling an equitous remedy that strikes a delicate balance between the imperative of personal liberty with that of effective administration of criminal law. 16. This Court, while being seized of a challenge to grant extra....
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....'s plea Under Section 438 of Code of Criminal Procedure and directed that the Accused be released in the event of arrest upon furnishing personal bond and surety. It was reasoned that one need not mix up the jurisdiction relating to cognizance of an offence with that of granting bail. Bails are against arrest and detention. Therefore, an appropriate Court within whose jurisdiction the arrest takes place or is apprehended or is contemplated will also have jurisdiction to grant bail to the person concerned. If the Court of Session or the High Court has the jurisdiction to grant interim bail, then the power to grant full anticipatory bail will emanate from the same jurisdiction. Concurrent jurisdiction in Courts situated in different States is not outside the scope of the Code of Criminal Procedure. It is not possible to divide the jurisdiction under Section 438 of Code of Criminal Procedure into an ad interim and final, but it is permissible if it is so expedient or desirable, for any of the Courts competent to take cognizance of and to try an offence and the Courts competent to grant bail can also grant anticipatory bail for a specified period only. 2. In Re: Benod Ranjan Sin....
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....strict the scope of the relief of anticipatory bail to arrests made within that State. Arrests made outside the State will thus not be protected by an order Under Section 438 of Code of Criminal Procedure unless the offence itself is alleged to be committed within the State. 5. N.K. Nayar v. State of Maharashtra, 1985 Cri LJ 1887 (N.K. Nayar) Bombay High Court with respect to an FIR registered in Haryana. The High Court laid emphasis on the expression 'apprehension of arrest' and held that if the arrest is likely to be affected within a jurisdiction beyond that of the High Court, then the concerned person may apply to the High Court for anticipatory bail even if the offence is committed in some other State. 6. Syed Zafrul Hassan v. State, 1986 SCC Online Pat 3 (Syed Zafrul Hassan) Patna Bench of the Patna High Court with respect to FIR registered at Jhinkpani police station which falls in the district of Singhbhum and comes squarely within the jurisdiction of the Ranchi Bench of the Patna High Court. The High Court denied the relief and reasoned that an application Under Section 438 of Code of Criminal Procedure cannot be entertained in respect of offences....
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....or jurisdiction Under Section 438 of Code of Criminal Procedure beyond the local limits of the territorial jurisdiction of the Sessions-Division. The High Court held that the petition for anticipatory bail Under Section 438 of Code of Criminal Procedure in connection with an offence in any out-station cannot be entertained by the High Court and as such the petition was not maintainable. 9. Honey Preet Insan v. State, 2017 SCC Online Del 10690 (Honey Preet Insan) Delhi High Court regarding offence registered in the State of Haryana. The High Court noted that the applicant, a resident of Sirsa in Haryana, had sought anticipatory bail from a Delhi Court by giving a Delhi address in addition to a Sirsa address. The High Court emphasized that it was duty bound to consider whether the applicant is a regular or bona fide resident of a place within the local limits of that Court and the application is not a camouflage to evade the process of law. If the Court is not satisfied on this aspect, the application deserves to be rejected without going into the merits of the case. The High Court also denied the plea of transit anticipatory bail for period of three weeks to enable the appl....
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....t granted protection to the Accused for a period of six weeks to enable him to approach the competent Court for seeking appropriate relief. 15. Amita Garg v. State of U.P., 2022 SCC Online All 463 (Amita Garg) Allahabad High Court regarding offence registered in the State of Rajasthan. The High Court noted that there is no legislation or law which defines "transit or anticipatory bail' in definitive or specific terms. The said Court explained that the transit anticipatory bail precedes detention of the Accused and is effective immediately at the time of the arrest. Transit bail is protection from arrest for a certain definite period as directed by the Court granting such transit bail. Therefore, when an Accused is arrested in accordance with the order of a Court and whereas the Accused needs to be tried in some other competent Court having jurisdiction in the aforementioned matter, the Accused is given bail for the transitory period i.e., the time period required for the Accused to reach that competent Court from the place he is arrested in. The regular Court would consider such anticipatory bail, on its own merits and shall decide such anticipatory bail application. T....
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....ve from Court to Court ad infinitum and if he fails in one jurisdiction then on to another until he secures relief in the last.' b. Calcutta High Court in Sadhan Chandra Kolay relied upon Article 214. of the Constitution which states that there shall be a High Court for each State and had categorically held that the Sessions Judge has got no authority to exercise the power or jurisdiction Under Section 438 of Code of Criminal Procedure beyond the local limits of the territorial jurisdiction of the Sessions-Division. c. The facts in Honey Preet Insan are peculiar to the extent that the relief of interim protection was denied because the Applicant was at large and had categorically refused to join investigation. d. At this juncture it may be noted that the aforementioned approach was supported by the Justice V.S. Malimath Committee's Report on Reforms in Criminal Justice System. In Section 7.33, page 121, the Committee had proposed that provision regarding anticipatory bail may be retained subject to two conditions: that the Court would hear the Public Prosecutor; and that the petition for anticipatory bail should be heard only by the Court of compe....
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....e treated with humanity and with respect for the inherent dignity of the human person". These provisions in the International Human Rights instruments are a necessary safeguard against the reality of arbitrary and inhumane deprivation of liberty and the inability of those thus deprived to benefit from legal resources and constitutional guarantees that they are entitled to for the conduct of their defence as required by law in any judicial system and by application of international human rights standards. 20. Comparative legal study on law of criminal procedure presents India as an exemplar with respect to the provision for pre-arrest bail. It would be useful to consider how other jurisdictions have dealt with the issue of pre-arrest bail as under: (a) Possibly, the only known case of an application for a pre-arrest bail bond in the United States of America is In re: Sturman, 1984.604 F. Supp. 278. (F.E. Devine (1990) Anticipatory Bail: An Indian Civil Liberties Innovation, International Journal of Comparative and Applied Criminal Justice, 14:1-2, 107-114). The U.S. District Court for the Northern District of Ohio presumed that the Applicant's motion was made to spar....
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....may felt by some of those who suffer such treatment. Arrest represents a major disruption to the suspect's life... That disruption cannot, in our view, be justified if it is not necessary to take him to the station for one or more of the following reasons: to find out his name and address; to prevent the continuation or repetition of the offence; to protect persons or property; to preserve evidence in connection with that offence; to dispel reasonable suspicion or to turn it into a prima facie case." (para 3.75) The Royal Commission underlined the necessity principle to diminish the possibility of arbitrary arrest, thereby requiring the police officer receiving the suspect in his custody to enquire as to whether it would be essential to keep the arrested person at the police station on the basis of the following criteria: (i) the person's unwillingness to identify himself so that a summons may be served upon him; (ii) the need to prevent the continuation or repetition of that offence; (iii) the need to protect the arrested person himself, or other persons or property; (iv) the need to secure or preserve evidence of or relating to....
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....A of the Constitution of India deals with equal justice and free legal aid, which can be construed to be a specie of Article 21 of the Constitution of India, which deals with right to life and liberty. For sake of immediate reference, Article 39A is extracted as under: 39A. Equal justice and free legal aid.- The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. 21. A Constitution Bench of this Court in Anita Kushwaha v. Pushap Sudan, (2016) 8 SCC 509 held access to justice to be encompassed within the right to life Under Article 21 and observed as under: 31. Given the fact that pronouncements mentioned above have interpreted and understood the word "life" appearing in Article 21 of the Constitution on a broad spectrum of rights considered incidental and/or integral to the right to life, there is no real reason why access to justice should be considered to be falling outside th....
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.... process must be affordable. 22. Therefore, this Court has elevated the provision of a just adjudicatory forum for a citizen to agitate his grievance and seek adjudication of what he may perceive as a breach of his right to the level of a fundamental right. Not only is the adjudicatory forum supposed to be effective in its functioning and just, fair and objective in its approach, but it also must be conveniently approachable and affordable by observing as under: 35. The forum/mechanism so provided must, having regard to the hierarchy of Courts/tribunals, be reasonably accessible in terms of distance for access to justice since so much depends upon the ability of the litigant to place his/her grievance effectively before the Court/tribunal/Court/competent authority to grant such a relief. (See D.K. Basu v. State of W.B. [D.K. Basu v. State of W.B., (2015) 8 SCC 744 : (2015) 3 SCC (Cri) 824] ) 23. It was also emphasised that access to justice would, therefore, be a constitutional value of any significance and utility only if the delivery of justice to the citizen is speedy, for otherwise, the right to access justice is no more than a hollow slogan of no use or inspirat....
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....he words are used and the circumstances under which the law came to be passed to decide whether something implicit is behind the words used which controls the literal meaning of such words. An interpretation giving rise to an absolute bar on the jurisdiction of a Court of Session or a High Court to grant interim anticipatory bail for an offence committed outside the territorial confines of a High Court or Court of Session may lead to an anomalous and unjust consequence for bona fide applicants who may be victims of wrongful, mala fide or politically motivated prosecution. 27. Furthermore, the fundamental right to personal liberty and access to justice, which are constitutionally recognised and statutorily preserved through the presence of jurisdiction with superior Courts, would be undermined through such a restrictive interpretation. While construing a statute, constitutional Courts are obliged to render a contextually sensitive construction that preserves and furthers core constitutional values. 28. Reliance in this regard may be placed on the dicta of this Court in Central Inland Water Transport Corporation v. Brojo Nath Ganguly, (1986) 3 SCC 156: It is thus clear....
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....l statutes should be favorable to personal liberty subject to fair and effective administration of criminal justice. 31. A remedy such as anticipatory bail secures citizens afflicted in difficult life circumstances - and such difficulties would keep evolving as our collective lives and legal systems become more complex. We deem it fit to distinguish between exercise of jurisdiction arising out of apprehension of arrest and jurisdiction conferred consequent to the "commission and cognizance of an offence". If the Parliament intended that the expression 'the High Court or the Court of Session', to mean only the Court that takes cognizance of an offence, then the Parliament would have made this abundantly clear. The omission of any qualification of the expression 'the High Court or the Court of Session,' ought to be constructed in a fashion that furthers the constitutional ideal of safeguarding personal liberty. It would be in furtherance of fostering personal liberty enshrined in Article 21 of the Constitution of India in entrusting a wider jurisdiction to the Court of Session and the High Court in the grant of anticipatory bail, than in foreclosing the same by res....
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....tions. A police officer, for the purpose of arresting without a warrant, one whom he is allowed to arrest, may pursue an individual anywhere in India. Prior to effecting the arrest outside a particular jurisdiction, the police is obligated to secure the transit remand i.e. the remand of the Accused, for taking him from one place to another in their own custody, usually for the purpose of producing him before the concerned magistrate who has jurisdiction to try/commit the case. The primary purpose of such a remand is to enable the police to shift the person in custody from the place of arrest to the place where the matter can be investigated and tried. However in various cases, the police and investigating agencies have failed to exercise necessary restraint while functioning within their legal remit. It is for the aforesaid reason that an Accused apprehending arrest seeks pre-arrest bail. The Courts in India have to be vigilant about such applications being filed particularly when a person alleged to have committed an offence can be proceeded with by setting the criminal law in motion in a place other than the place where the offence has actually occurred. In such circumstances the....
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....dy from the place of arrest to the place where the matter can be investigated. It appears that from the aforesaid requirement of transit remand, has arisen the necessity of 'transit anticipatory bail' for, an affected person cannot be without a remedy. 35.1. The word 'transit' is derived from the Latin word transitus which means passage from one place to another. Since the word 'transit' is an undefined expression in Code of Criminal Procedure, we may take recourse to the dictionary meaning of the word 'transit'. The Concise Oxford English Dictionary, 10th Edition, Revised, defines the word 'transit' to mean carrying of people or things from one place to another; the conveyance of passengers on public transport; an act of passing through or across a place. 'Transited' or 'transiting' would mean pass across or through. Similarly, the word 'transition' means the process of changing from one state or condition to another. Likewise, the adjective 'transitory' means not permanent; short-lived. An useful example of the above expression is transit visa which means a visa allowing its holder to pass through a countr....
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....ipatory bail before the competent court which would then consider such a prayer on its own merits. Allahabad High Court has also held that transit anticipatory bail is a temporary relief which an Accused gets for a certain period of time so that he can apply for anticipatory bail before the regular court. In this connection, Allahabad High Court heavily relied upon the decision of the Bombay High Court in Teesta Atul Setalvad. In that case, Bombay High Court held that High Court of one State can grant transit bail in respect of a case registered within the jurisdiction of another High Court in exercise of the power Under Section 438 of Code of Criminal Procedure. Bombay High Court was of the view that generally the power of a High Court to grant anticipatory bail is limited to its territorial jurisdiction and that the power cannot be usurped by disregarding the principle of territorial jurisdiction. Having said that, the High Court emphasized that temporary relief to protect liberty and to avoid immediate arrest can be given by the Bombay High Court. 36. In view of what we have discussed above, we are of the view that considering the constitutional imperative of protecting a cit....
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....e 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. 38. We therefore set aside the judgment of Patna High Court in Syed Zafrul Hassan and judgment of Calcutta High Court in Sadhan Chandra Kolay to the extent that they hold that the High Court does not possess jurisdiction to grant extra-territorial anticipatory bail i.e., even a limited or transit anticipatory bail. 39. We shall now revert to our illustration given at the beginning of this judgment. In the illustration, we have stated that if a person commits an offence in one State and the FIR is lodged within the jurisdiction where the offence was committed but the Accused resides in another State he can approach the Court in the other State and seek transit anticipatory bail of limited duration. We have held that the Accused could approach the competent Court in the State where he is residing or is visiting for a legitimate purpose and seek the relief of limited transit anticipatory bail alth....
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...., 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. 42. While we so hold, we are conscious of the fact that the expression High Court in Section 2(e) of the Code of Criminal Procedure reads as follows: (i) in relation to any State, the High Court for that State; (ii) in relation to a Union Territory to which the jurisdiction of the High Court for a State has been extended by law, that High Court; (iii) in relation to any other Union Territory, the highest Court of criminal appeal for that territory other than the Supreme Court of India. Section 6 of the Code of Criminal Procedure states that besides the High Courts and the Courts constituted under any law, other than the Code of Criminal Procedure, there shall be, in every State, inter alia, Courts of Session. Section 7 speaks about territorial divisions. Sub-section (1) of Section 7 states ....
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....so does not mean that only the High Court or the Court of Session, as the case may be, within whose jurisdiction the FIR is filed, is competent to exercise jurisdiction for the grant of transit anticipatory bail. 45. At the same time, we are also 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, in view of what we have discussed above, 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 and since we have 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 bai....
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....e would not attempt to give an answer to such a situation as the facts of the present case do not involve such a situation. 48. Another issue that calls for reiteration is, whether, the ordinary place of inquiry and trial would include the place where the complainant-wife resides after being separated from her husband. The position of law regarding the ordinary place of investigation and trial as per Section 177 of the Code of Criminal Procedure, 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 v. Deokaran Nenshi, (1972) 2 SCC 890; Sujata Mukherjee (Smt.) v. Prashant Kumar Mukherjee, (1997) 5 SCC 30; Y. Abraham Ajith v. Inspector of Police, Chennai, (2004) 8 SCC 100, Ramesh v. State of T.N. (2005) 3 SCC 507; Manish Ratan v. State of M.P., (2007) 1 SCC 262 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 this Court has however clarified in Rupali Devi v. State of U.P., (2019) 5 SCC 384 (R....