High Courts, Session Courts Can Grant Interim/Transit Anticipatory Bail Even When FIR Is Registered In Another State: Supreme Court

The Supreme Court today held that the Sessions Court or High Court that would have the power to grant interim/transit anticipatory bail, when the FIR is not registered within the territory of a particular State but in a different State.The Court observed :"...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".If transit bail application is rejected on the sole ground of territorial jurisdiction, it will be adding a restriction to the powers under Section 438 of the Code of Criminal Procedure. This, in the Court's 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. In this regard, the Court noted that as per Section 438 CrPC, there is no reference to the territorial jurisdiction of the High Court or the Court of Sessions."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."Conditions for transit bail :However, it laid down the following conditions-Prior to passing of the order of limited anticipatory bail, the Investigating Officer and the Public Prosecutor who are seized of FIR shall be issued notice, though the court in appropriate case, the court would have discretion to to grant interim anticipatory bail. The order of grant of must record reasons as to why the applicant apprehends an inter-state arrest and the impact of interim anticipatory bail as the case may be on the status of investigation.The jurisdiction in which the cognizance of the offense has been taken does not exclude the said offense from the scope of anticipatory bail by way of a state amendment to section 438 CrPC.The applicant must satisfy the court, regarding his inability to seek such bail from the court having territorial jurisdiction. The grounds raised may be a reasonable and immediate threat to life, personal liberty, and bodily harm, the jurisdiction where FIR is registered, the apprehension of violation of the right to life liberty or impediments owing to arbitrariness, the medical status or disability of person seeking extra-territorial limited anticipatory bail.The Court added “It would be fully impossible to account for all exigent circumstances in which order for extraterritorial anticipatory to safeguard the fundamental right of the applicant. We reiterate such power should be granted in exceptional and compelling circumstances only which means that denying transit bail or interim protection to enable the applicant to make an application under section 438 would cause irremediable and irreversible prejudice to the applicant.”The Supreme Court bench comprising Justice B.V. Nagrathna and Justice Ujjal Bhuyan pronounced the judgment in a Special Leave Petition filed against the judgment of Sessions Judge, Bangalore which had allowed the extraterritorial bail petition by the accused husband. Aggrieved by the same, the petitioner had approached the Apex Court in an SLP.There should be some territorial nexus between the accused and the CourtThe Court also drew attention to the potential abuse of the legal process. To address this, the court asserted the necessity for establishing a territorial connection or proximity between the accused and the court's jurisdiction where anticipatory bail is sought.It opined “We're 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. This would also make the concept of territorial jurisdiction which is of importance under CrPC pale into insignificance. Therefore, in order to...

High Courts, Session Courts Can Grant Interim/Transit Anticipatory Bail Even When FIR Is Registered In Another State: Supreme Court

Suraj Parmar

The Court laid down certain conditions to check the abuse of transit bail.

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