The division bench of the Bombay High Court referred to a full bench the question whether the trial courts or High Courts can grant transit anticipatory bail to an accused when the offence against him is registered in another state, beyond the court's jurisdiction.
A division bench of Justices S S Shinde and S V Kotwal widened the scope of the reference by adding issues like whether such courts are empowered to grant permanent anticipatory bail or if protection can be granted under Article 226 of the Constitution.
The bench clarified that the reference was subject to the Chief Justice's permission.
While Justice Revati Mohite-Dere had referred the matter of transit anticipatory bail to the division bench, since the matter involves larger interest of the citizens and, therefore, the bench held that it could be more advantageously heard by a larger bench.
The court observed that there is a "vertical rift" in the view expressed on this issue by different High Courts. "The importance of this question cannot be overstated. It involves liberty of citizens". "At the same time, the Court will have to balance the difficulties of the investigating agency," the bench said adding that the provision can be misused by either the accused or the complainant.
The bench said protection may be necessary in a case where an FIR is registered in a different state only to harass the person or that protection may be misused like in Sandeep Lohariya's case wherein an accused buys time to destroy evidence.
"Both these mischiefs must be checked while considering this issue."
Additional Solicitor General Anil Singh and Advocate General of Maharashtra Ashutosh Kumbhakoni submitted that legally transit anticipatory bail orders cannot be passed; and neither a Sessions Court nor a High Court in one State can give protection in the nature of the order under Section 438 of CrPC in relation to an offence registered in some other State.
The AG also suggested that the matter could be referred to a larger bench considering the importance of the questions involved.
Senior Advocates Amit Desai and Mihir Desai for the clutch of petitioners submitted that not only transit, permanent anticipatory bail could be granted by the courts under section 438 of the CrPC.
They argued that apprehension of arrest should be the guiding factor and not the territorial jurisdiction.
"That the power under Section 438 of CrPC flows from Article 21 and, therefore, in a given case it can be elevated to the pedestal of Article 21 because liberty of a person is paramount. In a given case, the statutory rights merge with the constitutional rights and, therefore, Section 438 of Cr.P.C. should be given its effect without any limitations."
The bench ruled that it was empowered to refer the matter to a larger bench under Rule 8 of Chapter I of the Appellate Side Rules. Moreover, it wasn't necessary that the matter be referenced only if there are divergent views between two benches.
Therefore, it was not necessary for the bench to have a different view than what was held in N.K. Nayar, Director, Hastinapur Metals Ltd. Bombay and others Vs. State of Maharashtra and others, to refer the matter to a larger bench.
In NK Nayar's 1985 judgement the HC had observed that case that an order of anticipatory bail would have a relevancy to the moment of arrest of the concerned person and, therefore, this Court would have the jurisdiction if a person was likely to be arrested at a place within the jurisdiction of this Court even if the offences were allegedly committed outside the State of Maharashtra.
Considering the practical difficulty, a public prosecutor would have to oppose bail in such cases, the bench said that the order would automatically stand vacated once the period specified is over.
However, the division bench was of the view that an amendment to the section 438 of the CrPC in 1993 may impact these observations.
Therefore, the four more issues were framed, which are in addition to the earlier questions, whether transit anticipatory bail can be granted or not.
The issues are :
1)Whether an application for transit anticipatory bail for a short duration, is maintainable in order to enable the accused to approach the Court of appropriate jurisdiction for seeking regular anticipatory bail for a short duration ?
2)Whether the order dated 14th September, 2017 passed by Gadkari, J. in Anticipatory Bail Application No. 1599 of 2017 and other connected applications, on the basis of the observations made by the Apex Court in an interim order dated 14th June, 2013 would lay down the law, that an application seeking transit anticipatory bail is not maintainable ?
3)Whether the judgment of the Division Bench of this Court in the case of N.K. Nayar, Director, Hastinapur Metals Ltd. Bombay and others Vs. State of Maharashtra and others1 is a binding precedent ?
Additional issues :
(4) Whether the Maharashtra Amendment of 1993 to Section 438 of CrPC affects the ratio of N.K. Nayar's case (supra).
(5) Whether the final relief under Section 438 of CrPC. can be granted for the offences registered or likely to be registered, outside the territorial jurisdiction of the Sessions Court or the High Court, as the case may be.
(6) Whether a Sessions Court can grant any relief under Section 438 of Cr.P.C. in respect of the offences registered outside its jurisdiction.
(7) If relief cannot be granted under section 438 of CrPC, whether the High Courts in exercise of their powers under Article 226 of the Constitution of India, can pass protective orders in the nature of relief under Section 438 of Cr.P.C. in respect of those offences.
Case Title: Prajith Thayyil Kallil S/o Jogesh K J Versus The State of Maharashtra, and connected matters
Citation: 2022 LiveLaw (Bom) 187