Preface
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 –
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.”
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.”
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