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Issue for consideration: Whether the power of the High Court or the Court of Session to grant anticipatory bail u/s 438 CrPC could be exercised with respect to an FIR registered outside the territorial jurisdiction of the said Court; and whether the practice of granting transit anticipatory bail or interim protection to enable an applicant seeking anticipatory bail to make an application u/s 438 CrPC before a Court of competent jurisdiction is consistent with the administration of criminal justice. Code of Criminal Procedure, 1973 – s. 438 – Extra-territorial anticipatory bail – Power of the High Court or the Court of Session to grant u/s 438 CrPC, if could be exercised with respect to an FIR registered outside the territorial jurisdiction of the said Court:Held: 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 – In such circumstances, the Courts must balance the interest of the accused in the context of the salutary principle of access to justice which is a facet of Art. 21 of the Constitution as well as a Directive Principle of State Policy-Art. 39(A) as also Art. 14 – 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 u/s 438 before a Court of competent jurisdiction would cause irremediable and irreversible prejudice to the applicant – 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 – This may also lead the accused to choose the Court of his choice for seeking anticipatory bail – Thus, 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 relief. [Paras 26, 34, 37, 39, 40] Code of Criminal Procedure, 1973 – s. 438 – Direction for grant of bail to person apprehending arrest – Grant of transit anticipatory bail or interim protection to enable an applicant seeking anticipatory bail to make an application u/s 438 CrPC before a Court of competent jurisdiction, if consistent with the administration of criminal justice:Held: 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, 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 – 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 Art. 21 of the Constitution of India and since the concept of access to justice is extended to such a situation and bearing in mind Art 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 – 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 u/s 438 – This, would result in miscarriage and travesty of justice, aggravating the adversity of the accused who is apprehending arrest and would be against the principles of access to justice. [Para 45, 46]Code of Criminal Procedure, 1973 – ss. 438, 177 – Ordinary place of inquiry and trial, if would be inclusive of the place where the complainant-wife resides after being separated from her husband:Held: As per s. 177 especially in matrimonial cases alleging cruelty and domestic violence by the wife, 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 – Adverse effects on mental health of the wife even while residing in her parental home on account of the acts committed in the matrimonial home would amount to commission of cruelty within the meaning of s. 498A at the parental home – At the place where the wife takes shelter after leaving or being driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, also have jurisdiction to entertain a complaint – On facts, the complainant-wife 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 – 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 Police Station, Rajasthan wherein the complainant had lodged the FIR – Impugned orders set aside – Accused to approach the jurisdictional Court in Chirawa for anticipatory bail. [Paras 48, 49] Code of Criminal Procedure, 1973 – s. 438 – Grant of anticipatory bail – Salient features – Stated. [Para 9.6] Code of Criminal Procedure, 1973 – s. 438 – Grant of anticipatory bail – Expression “the High Court” or “the Court of Session” – Construction:Held: On a reading of s. 438 it is not found 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 – 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 – Use of the word “the” before “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. [Para 44]Code of Criminal Procedure, 1973 – s. 438 – Expression ‘transit anticipatory bail’ – Need and necessity for:Held: 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 – 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 Art. 22 – Primary purpose of 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 requirement of transit remand, the necessity of ‘transit anticipatory bail’ has arisen, for affected person cannot be without a remedy. [Para 35] Bail – Anticipatory Bail – Evolution of the safeguard – Stated. [Para 10] Bail – Pre-arrest bail – Position of law in United States of India, United Kingdom, Kenya and India – Comparative legal study – Stated. [Paras 19, 20] Bail – Limited anticipatory bail – Grant of, by the High Court or the Court of Session u/s 438 CrPC with respect to FIR registered outside the territorial jurisdiction of the said Court – Conditions to be fulfilled – Stated. [Para 36] Constitution of India – Art. 21 – Right to life and liberty under – Access to justice :Held: Art. 39A which deals with equal justice and free legal aid can be construed to be a specie of Art 21 – Citizen must be provided a just adjudicatory forum 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 – 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 – Access to justice would, thus, be a constitutional value of any significance and utility only if the delivery of justice to the citizen is speedy. [Para 20, 22, 23]Interpretation of statutes – Penal statutes – Rule of statutory interpretation:Held: Penal statutes are to be construed strictly – When acts are to be made penal and are to be visited with loss or impairment of life, liberty, or property, the personal liberty requires clear and exact definition of the offence – Appropriate care must be taken to adopt an interpretation which makes the textual interpretation match the contextual – Fundamental right to personal liberty and access to justice, which are constitutionally recognised and statutorily preserved, would be undermined through a restrictive interpretation – While construing a statute, constitutional Courts are obliged to render a contextually sensitive construction that preserves and furthers core constitutional values – Criminal statutes such as the CrPC are interpreted with rational regard to the aim and intention of the legislature – Interpretation of all statutes should be favorable to personal liberty subject to fair and effective administration of criminal justice. [Paras 25, 27, 30] Words and phrases – Word ‘transit’ – Meaning of – Stated. [Para 35.1] |
