Supreme Court: Courts can give pre-arrest bail outside jurisdiction: Supreme Court | India News

NEW DELHI: In an important ruling, the Supreme Court on Monday said high courts or sessions courts are not barred by jurisdiction for entertaining anticipatory bail pleas and held that they are empowered to grant transit bail to an accused even though the offence was committed in another jurisdiction or state. The court though put in place a few conditions to prevent forum-hunting by the accused.
The apex court’s verdict introduced the concept of transit anticipatory bail which would protect an accused from arrest till he moves the court of territorial jurisdiction for the alleged offence.It is on the lines of transit remand that police are obligated to secure for taking an accused from the place of arrest to the place where the crime is registered.
Explaining the core aspects of Section 438 of Criminal Procedure Code pertaining to grant of anticipatory bail, a bench of Justices B V Nagarathna and Ujjal Bhuyan said the fundamental right to personal liberty and access to justice, which are constitutionally recognised and statutorily preserved, would be undermined if the section is given a restrictive interpretation to allow only the jurisdictional high court or sessions court to grant pre-arrest bail. The court said the limited interpretation would hamper the right of a person who is living in another state. “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 sessions court 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,” the bench said.
Justice Nagarathna, who penned the judgment for the bench, said, “An interpretation giving rise to an absolute bar on the jurisdiction of a sessions court or high court to grant interim anticipatory bail for an offence committed outside the territorial confines of a high court or sessions court may lead to an anomalous and unjust consequence for bona fide applicants who may be victims of wrongful, mala fide or politically motivated prosecution.”
Aware of potential misuse of its ruling, the court put in place stringent conditions, including seeking response from the investigating officer and public prosecutor concerned and and that the applicant must satisfy the court regarding his inability to seek anticipatory bail from the court having territorial jurisdiction. It said the court must pass a reasoned order while granting relief and the interim protection would be extended only till the accused approached the jurisdictional court for bail.
“We are 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 for seeking anticipatory bail. This would also make the concept of territorial jurisdiction pale into insignificance. Therefore, in order to avoid the abuse of the process of the court as well as 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 a relief,” the bench said.
“Such a link with the territorial jurisdiction of the court could be by way of place of residence or occupation/work/profession. By this, we imply that the accused cannot travel to any other state only for the purpose of seeking anticipatory bail. The reason as to why he is seeking such bail from a court within whose territorial jurisdiction FIR has not been filed must be made clear and explicit to such a court. Also there must be a reason to believe an apprehension of imminent arrest for a non-bailable offence made out by the accused for approaching the court within whose territorial jurisdiction the FIR is not lodged or the inability to approach immediately the court where the FIR is lodged,” it said.
The court said if Parliament intended the expression ‘High Court or the Court of Session’, to mean only the court that takes cognisance of an offence, it would have made this abundantly clear. It said the omission of any such qualification ought to be constructed in a fashion that furthers the constitutional ideal of safeguarding personal liberty.