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Supreme Court expands the scope of anticipatory bail, allows filing across state borders

By LAWSTREET NEWS NETWORK      Nov 21, 2023      0 Comments

NEW DELHI: The Supreme Court on Monday ruled that a High Court or Sessions Court can grant limited anticipatory bail to a person apprehending arrest in connection with an FIR registered outside their territorial jurisdiction.

"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,” a bench of Justices B V Nagarathna and Ujjal Bhuyan said.

The Court was dealing with Section 438 of CrPC and the jurisdiction of the concerned Sessions Court or High Court to grant pre-arrest bail, when the FIR is registered in a different state.

In its 85-page judgment, the bench said that 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 under the provision.

“This, in our 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," the Court said.

The bench emphasized that the accused is presumed to be innocent until proven guilty beyond reasonable doubt and in accordance with law.

“In the circumstances, 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,” the bench said.

The bench also said that such power to grant extra-territorial anticipatory bail should be exercised in exceptional and compelling circumstances only.

The bench passed its judgment on an appeal by one Priya Indoria questioning the validity of anticipatory bail by a Bengaluru Sessions Court to her husband and his family members in connection with a dowry harassment FIR lodged at Chirawa Police Station at Jhunjhunu district in Rajasthan.

The bench set aside the order but granted 4 (four) weeks protection to the accused to seek appropriate remedy before the courts concerned.

In its judgement, the bench laid down conditions for granting such a limited relief.

The bench said 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 as well.

“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," the bench said.

The Court also enumerated that the grounds raised by the applicant may be a reasonable and immediate threat to life, personal liberty and bodily harm in the jurisdiction where the FIR is registered, and the apprehension of violation of right to liberty or impediments owing to arbitrariness.

On Section 438 of CrPC, the bench said that the expression “the High Court” or “the Court of Session” is not restricted vis-à-vis the local limits or any particular territorial jurisdiction.

The bench also clarified the accused cannot travel to any other state only for the purpose of seeking anticipatory bail, in order to avoid forum shopping and abuse of the process of law as well as of the Court.

"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 for a legitimate purpose, in any other state," the bench held.

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