In a recent landmark decision, the Supreme Court of India has ruled that both High Courts and Sessions Courts possess the authority to grant anticipatory bail to an accused, even when the First Information Report (FIR) is filed in a different state but it shall me in the nature of Transit bail and absolute anticipatory bail is not permissible in law.
The bench comprising Justices BV Nagarathna and Ujjal Bhuyan delivered the verdict on a Special Leave Petition challenging the decision of a Sessions Judge in Bangalore. The Sessions Judge had granted extraterritorial bail to the accused husband, prompting the petitioner to appeal to the Apex Court through the SLP. The bench emphasized the crucial role of courts in safeguarding individuals' liberty under specific conditions.
"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 Court held.
The court noted, "In light of the constitutional obligation to safeguard the fundamental rights of citizens, including the right to life and personal liberty, the High Court or Sessions Court should provide anticipatory bail with restrictions under Section 438 of the Criminal Procedure Code. This interim protection is to be granted in the interest of justice, particularly when the FIR is registered beyond the territorial jurisdiction of the respective court."
However, it established key prerequisites for the approval of transit anticipatory bail in such cases:
The Investigating Officer (IO) and the relevant agency must be informed on the very first day of the protective order.
The applicant is required to demonstrate to the court that seeking relief from the jurisdictionally appropriate court is not feasible due to concerns about potential threats to life and liberty.
Territorial proximity was underscored as a significant factor for the court to consider when deciding on anticipatory bail. The court highlighted concerns about potential misuse of the legal process. In response to which the court emphasized on the importance of establishing a territorial connection or proximity between the accused and the jurisdiction of the court where anticipatory bail is being sought.The panel also cautioned against forum shopping, emphasizing that an accused should not move to another state solely for the purpose of submitting bail applications without valid reasons.
The central questions addressed by the apex court pertained to the permissibility of a court outside the state where the FIR was filed granting anticipatory bail:
The court initiated its examination by delving into the legal framework, referring to High Court judgments, and tracing the evolution of anticipatory bail safeguards. It cited the Constitutional bench judgment in Gurbaksh Singh Sibbia v. State of Punjab, where CJI YV Chandrachud, speaking on behalf of the Supreme Court, observed that the preservation of personal liberty and the investigational powers of the police are of crucial importance to society. The Chief Justice noted that the significance of these interests depends on the prevailing political conditions and emphasized the need to balance them while determining the scope of Section 438 of the Code of Criminal Procedure, 1973.
The court then framed the issue within the framework of personal freedom and the availability of justice. It asserted that it is essential to examine the matter from the perspectives of personal liberty and access to justice. Article 39A, which addresses equal justice and free legal aid, was likened to Article 21, dealing with the right to life and liberty. The court cited the precedent set in the case of Anita Kushwaha , which underscored the inclusion of access to justice as part of Article 21.
The ruling stems from a March petition, where the Supreme Court took note of a complainant who had filed an FIR in Rajasthan. The accused-husband had obtained anticipatory bail from a district judge in Bengaluru, sparking concerns and focusing on accusations related to dowry demands.
This decision marks a significant development in the legal landscape, offering clarity on the circumstances under which courts in different states can exercise their authority in granting anticipatory bail, ultimately aiming to balance justice and individual liberties.
While analyzing the scope and grounds for grant of transit baul, the Supreme Court held as under:-
"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."
The wife's challenge was made before the Supreme Court by Advocate on Record Rishi Matoliya and argued by Sr. Adv. Kaustav Paul. The Supreme Court also appointed ASG Vikramjit Banargee as Amicus Curie in the matter. The State of Rajasthan was represented by Sr. Adv. Manish Singhvi and Adv. VN Raghupati represented the State of Karnataka.
Case: Priya Indoria v. State of Karnataka,
SLP(Crl) No. 011423 - 011426 / 2023.
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