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Understanding anticipatory bail & Transit Bail- judgment of Priya Indoria Vs. State of Karnataka

Understanding anticipatory bail & Transit Bail- judgment of Priya Indoria Vs. State of Karnataka

The bench of Justice BV Nagarathna authored the judgment for the bench of which Justice Ujjal Bhuyan was also a member.

The 85-page judgment of the Supreme Court is mainly on the issue of jurisdiction of the Trial court and the High Court with regard to the grant of Anticipatory Bail and the grant of Transit Bail in an offence by a court other than the court within whose jurisdiction the offence has been committed or the FIR has been lodged.

The Complainant who had lodged the FIR in Rajasthan had filed the petition before the Supreme Court, challeneing grant of bail to the accused by a Sessions Court at Bangalore, Karnataka. The Complainant challenged the order directly before the Supreme Court stating therein that there is no direct law on the issue and the diffenrent High Courts have different views with regard to grant of anticipatory bail by a court within whose jurisdiction, the FIR has not been lodged.

The Court also appointed amicus curies in the matter to assist the court on the issue. After hearing the parties, the court framed the following issues:-

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 Apex Court first discussed the jurisdiction of the court provided under section 2(e), 2(j), Section9, Section 14, Section 41A powers of arresting authorities, Section 167(2)production of accused before the Magistrate, Section 177- ordinary place of trial, Section 178- court hving jurisdiction to make enquiries, Section 179.

Then it discussed the provisions of Section 438 and culled out the following features:-

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 24 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; 25 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.

Thereafter, The Apex Court discussed the judgments of Shri Gurbaksh Singh Sibbia vs. State of Punjab reported in (1980) 2 SCC 565, Jamini Mullick vs. Emperor reported in (1909) ILR 36 Cal 174, Hidayat Ullah Khan vs. The Crown reported in AIR 1949 Lah 77, Gurbaksh Singh Sibia vs. State of Punjab reported in 1977 SCC OnLine P&H 157, Balchand Jain vs. State of M.P. reported in (1976) 4 SCC 572 (Balchand Jain) and Sushila Aggarwal vs. NCT of Delhi reported in (2020) 5 SCC 1, State of Assam vs. Brojen Gogol (Dr) reported in (1998) 1 SCC 397, Amar Nath Neogi vs. State of Jharkhand reported in (2018) 11 SCC 797, Teesta Atul Setalvad vs. State of Maharashtra, Special Leave Petition (Criminal) No. 1770 of 2014, N.K. Nayar vs. State of Maharashtra reported in 1985 Cri LJ 1887, Syed Zafrul Hassan vs. State reported in 1986 SCC Online Pat 3, Sailesh Jaiswal vs. State of West Bengal reported in 1998 SCC Online Cal 215, Sadhan Chandra Kolay vs. State reported in 1998 SCC Online Cal 382, Honey Preet Insan vs. State reported in 2017 SCC Online Del 10690, Gameskraft Technologies vs. State of Maharashtra reported in 2019 SCC OnLine Kar 520, Surya Pratap Singh vs. State of Karnataka reported in 2019 SCC Online Del 9533, Nikita Jacob vs. State of Maharashtra reported in  2021 SCC OnLine Bom 13919, Ajay Agarwal vs. The State of U.P. reported in 2022 SCC OnLine All 689, Amita Garg vs. State of U.P. reported in 2022 SCC Online All 463, Manda Suresh Parulekar vs. State of Goa reported in 2023 SCC OnLine Bom 1568, Anita Kushwaha vs. Pushap Sudan reported in (2016) 8 SCC 509.

The Court also took note of some of the foreign judgments such as United States of America is In re: Sturman, 1984.604 F. Supp. 278, United Kingdom’s Royal Commission Report on Criminal Procedure (Philips Commission)(1981), United Kingdom, the common law of arrest Section 2 of the Criminal Law Act, 1967, Queen’s Bench in Regina vs. Secretary of State for the Home Department, Ex Parte LeecH, (1994) Q.B. 198, The Constitution of Kenya, 2010, High Court of Kenya in Coroline Kuthie Karanja vs. Director Public Prosecutions, (2021) eKLR.

The Court then held that:-

a. The CrPC explicitly defines the ‘local limits’ and ‘local jurisdiction’ within which the Magistrate may exercise jurisdiction. 
b. Even though the High Court is defined in CrPC, no provision explicitly defines its territorial jurisdiction which has to be discerned from the Constitution of India. 
c. Section 438(1)(iv) of CrPC makes explicit the legislative intent to prevent humiliation of the persons who apprehend arrest, especially in politically motivated or malicious prosecutions or in false cases. 
d. The mischief that Section 438 of CrPC seeks to remedy is apprehension of wrongful arrest.

It noted, “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 restructuring the exercise of jurisdiction in the matter of grant of anticipatory bail.”

“We also note that the Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 2022 makes the provision of anticipatory bail inapplicable (a) in case of offences arising out of,— (i) The Unlawful Activities (Prevention) Act, 1967; (ii) The Narcotic Drugs and Psychotropic Substances Act, 1985; (iii) The Official Secrets Act, 1923; (iv) The Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986; (v) The Protection of Children from Sexual Offences Act, 2012; (b) to those offences in which the death sentence may be awarded; (c) to the offences of rape and illegal sexual intercourse enumerated in sections 376, 376-A, 376-AB, 376-B, 376-C, 376-D, 376- DA, 376-DB, 376-E of the Indian Penal Code, 1860,” held the Apex Court.

If the expression ‘anticipatory bail’ is not a defined expression, then it is quite but natural that the larger expression ‘transit anticipatory bail’ would not find any exposition in the CrPC. Perhaps the need and necessity for transit anticipatory bail has occasioned because the police has been conferred power under the CrPC to pursue an accused in other jurisdictions. Immediately upon affecting the arrest of a person outside the jurisdiction where the offence is registered, the police is obligated to secure a transit remand. The arrested person has to be produced before the nearest magistrate. If such a magistrate finds that he has no jurisdiction to try the case in which the accused has been arrested, he may order the accused to be forwarded to a magistrate having the jurisdiction to try the case or to commit it for trial. Thus, the police is obligated to secure a transit remand of the accused for taking him from the place where he is arrested to the place where the crime is registered, for production before the competent magistrate in terms of the requirement of Article 22. As we have already noted, the primary purpose of such a transit 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. 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.

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 CrPC, 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 country only, not to stay there. The word ‘transit’ has also been defined in the Black’s Law Dictionary, 11th Edition, to mean the transportation of goods or person from one place to another; passage; the act of passing.

In view of what we have discussed above, 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, and subject to the following conditions:

(i) 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.

(ii) 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.

(iii) The jurisdiction in which the cognizance of the offence has been taken does not exclude the said offence from the scope of anticipatory bail by way of a State Amendment to Section 438 of CrPC.

(iv) The applicant for anticipatory bail must satisfy the Court regarding his inability to seek anticipatory bail from the Court which has the territorial jurisdiction to take cognizance of the offence. The grounds raised by the applicant may be –

a. a reasonable and immediate threat to life, personal liberty and bodily harm in the jurisdiction where the FIR is registered; 
b. the apprehension of violation of right to liberty or impediments owing to arbitrariness;
c. the medical status/ disability of the person seeking extraterritorial limited anticipatory bail.

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 although the FIR is not filed in the territorial jurisdiction of the District or State in which the accused resides, or is present depending upon the facts and circumstances of each case. Conversely, the offence may be committed in one State, the FIR may be lodged in another State and the accused may reside in a third State. In which of the Courts of the three States would the accused approach for grant of anticipatory bail? We feel that having regard to the salutary concept of access to justice, the accused can seek limited transit anticipatory bail or limited interim protection from the Court in the State in which he resides but in such an event, a ‘regular’ or fullfledged anticipatory bail could be sought from the competent Court in the State in which the FIR is filed.

Forum shopping may become the order of the day as the accused would choose the most convenient Court for seeking anticipatory bail. This would also make the concept of territorial jurisdiction which is of importance under the CrPC pale into insignificance. Therefore, in order to avoid the abuse of the process of the Court as well as the law by the accused, it is necessary for the Court before which the plea for anticipatory bail is made, to ascertain the territorial connection or proximity between the accused and the territorial jurisdiction of the Court which is approached for seeking such a relief. Such a link with the territorial jurisdiction of the Court could be by way of place of residence or occupation/work/profession. By this, we imply that the accused cannot travel to any other State only for the purpose of seeking anticipatory bail. The reason as to why he is seeking such bail from a Court within whose territorial jurisdiction the FIR has not been filed must be made clear and explicit to such a Court. Also there must be a reason to believe or an imminent apprehension of arrest for a non-bailable offence made out by the accused for approaching the Court within whose territorial jurisdiction the FIR is not lodged or the inability to approach the Court where the FIR is lodged immediately.

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 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.

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