Introduction: In a groundbreaking judgment, the Supreme Court, in the case of Priya Indoria vs State of Karnataka and Ors, has ruled that High Courts and Sessions Courts can grant interim anticipatory bail even when an FIR is registered in another state. The judgment, delivered on November 20, 2023, highlights the significance of protecting a citizen’s right to life, personal liberty, and dignity. This article provides an in-depth analysis of the case, its implications, and the conditions under which such anticipatory bail can be granted.
We must note that in a most pertinent, path-breaking, progressive, powerful and pragmatic judgment titled Priya Indoria vs State of Karnataka and Ors Etc [arising out of SLP(Crl.) Nos. 11423-11426 of 2023] and (Arising out of Diary No. 7943 of 2023) cited in Neutral Citation No.: 2023 INSC 1008 in the exercise of its criminal appellate jurisdiction that was pronounced as recently as on November 20, 2023, the Apex Court in a special leave petition that had been filed by the wife against the judgment that had been passed by the Sessions Judge, Bangalore wherein the Court had allowed the extraterritorial bail application by the accused/husband has held most forthrightly that the High Court or Sessions Court can grant anticipatory bail for a limited period to a person apprehending arrest to an accused, even if the First Information Report (FIR) is registered in another State holding that it was necessary to protect a citizen’s right to life and personal liberty. It must be also noted that this laudable ruling came in a petition in a matrimonial dispute in which the husband was granted anticipatory bail by a Sessions Court in Karnataka even though the FIR was registered in Rajasthan. The top court maintained that High Courts and Sessions Courts can grant pre-arrest bail even if a case was filed in a different State in the “interest of justice”, adding that it must be done only in “exceptional and compelling circumstances”. This notable judgment came on an appeal that was filed by 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 that was lodged at Chirawa Police Station at Jhunjhunu district in Rajasthan.
Bird’s Eye View of the Controversy:
At the very outset, this learned, laudable, landmark and latest judgment authored by Hon’ble Mr Justice BV Nagarathna for a Bench of the Apex Court comprising of herself and Hon’ble Mr Justice Ujjal Bhuyan sets the ball in motion by first and foremost putting forth in para 2 that, “We begin this Judgment by 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 alleged assailant travels to Rourkela, Odisha, where he is working in a factory. Meanwhile, the family 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:
To put things in perspective, the Bench envisages in para 2 while elaborating on the facts of the case that, “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 complainant-wife at Chirawa Police Station, District Jhunjhunu, Rajasthan.
2.2. In view of the above, we take note of the social reality of criminal complaints relating to dowry harassment, cruelty and domestic violence arising out of unsuccessful matrimonial relationships. With the increasing migration of young people for marital and career prospects, supplemented by the forces of economic liberalization, a significant number of couples hail from two different States, with the corollary being that the matrimonial home of a complainant-wife is located in a different State from where her parental home is located.”
Most significantly and as a corollary, the Bench mandates in para 36 holding that, “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 –
1. a reasonable and immediate threat to life, personal liberty and bodily harm in the jurisdiction where the FIR is registered;
2. the apprehension of violation of right to liberty or impediments owing to arbitrariness;
3. the medical status/disability of the person seeking extraterritorial limited anticipatory bail.”
While striking a note of caution, the Bench hastens to add in para 37 propounding that, “It would be impossible to fully account for all exigent circumstances in which an order of extra territorial anticipatory bail may be imminently essential to safeguard the fundamental rights of the applicant. We reiterate that such power to grant extra-territorial anticipatory bail should be exercised in exceptional and compelling circumstances only which means where, denying transit anticipatory bail or interim protection to enable the applicant to make an application under Section 438 of CrPC before a Court of competent jurisdiction would cause irremediable and irreversible 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.”
Resultantly, the Bench held in para 38 that, “We therefore set aside the judgement 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.”
Quite significantly, the Bench points out in para 39 that, “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 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 full-fledged anticipatory bail could be sought from the competent Court in the State in which the FIR is filed.”
Most rationally, the Bench then very succinctly observes in para 40 that, “We are 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 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.”
Frankly speaking, the Bench on a pragmatic note specifies in para 41 that, “Having regard to the vastness of our country and the length and breadth of it and bearing in mind the complex nature of life of the citizens, 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.”
Be it noted, the Bench notes in para 44 that, “Further, on a reading of Section 438 of CrPC, we do not find that the expression “the High Court” or “the Court of Session” is 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. In fact, on a reading of Section 438 of CrPC, it does not emerge that the expression “the High Court” or “the Court of Session” must have reference only to the place or territorial jurisdiction within which the FIR is lodged. If that was the implication, the same would have been expressly evident in the Section itself or by a necessary implication. Further use of the word “the” before the words “High Court” and “Court of Session” also 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.”
It is worth noting that the Bench notes in para 45 that, “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 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.”
Most commendably, the Bench expounds in para 46 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. We say so for the reason that 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, 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 Sessions Court or the High Court, as the case may be, for seeking full-fledged anticipatory bail.”
Finally, the Bench concludes holding in para 49 that, “Applying Rupali Devi, in view of the fact that the complainant-wife herein claims to have received death threats and harassment over the phone even after her return to her parental home in Chirawa, Rajasthan the ordinary place of trial may be Chirawa. But in the present case by the impugned orders, the accused-husband and his family members were granted extra-territorial anticipatory bail without issuing notice to the investigating officer and public prosecutor in Chirawa Police Station, Rajasthan wherein the appellant had lodged the FIR. In view of the facts and circumstances of the present case and the conclusion to the points considered hereinabove, we allow and dispose of these appeals in the following terms:
a. The impugned orders of the learned Additional City Civil and Sessions Judge Bengaluru City do not take note of respondent No.2 at all for allowing Criminal Misc. Nos. 3941/2022, 3943/2022, 3944/2022 and 3945/2022.
b. The impugned orders are hence set aside.
c. However, in the interest of justice, it is 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.
d. It is also directed that in case applications under Section 438 of CrPC are made before the Court of Session in Chirawa or the High Court of Rajasthan, the same shall be decided expeditiously and on their own merits.”
All told, the Apex Court has made it clear that Sessions Courts and High Courts can grant interim/transit anticipatory bail even when FIR is lodged outside State where it is imperative to protect the life, personal liberty and dignity of a person and when certain conditions are fulfilled as mentioned hereinabove. No doubt, this latest judgment will certainly have wide ramifications especially in criminal matters where accused apprehends arrests in cases lodged in other States. No denying!