Supreme Court clarifies jurisdiction for anticipatory bail in cross-state cases: Priya Indoria vs. State of Karnataka (2023) INSC 1008 (20 November 2023)

Introduction

Date of the Judgment: 20 November 2023
Citation: 2023 INSC 1008
Judges: Justice B.V. Nagarathna and Justice Ujjal Bhuyan

Can a person facing a potential arrest in one state seek anticipatory bail in another state where they reside? The Supreme Court of India recently addressed this critical question in a case involving a wife’s complaint of dowry harassment against her husband and his family. This judgment clarifies the extent to which High Courts and Session Courts can grant anticipatory bail when the First Information Report (FIR) is registered outside their territorial jurisdiction. The bench comprised of Justice B.V. Nagarathna and Justice Ujjal Bhuyan.

Case Background

The complainant, Priya Indoria, married the accused, her husband, on 11 December 2020, and they resided in Bengaluru. On 9 November 2021, the husband filed a divorce petition in Bengaluru. Subsequently, on 25 January 2022, the wife registered an FIR at Chirawa Police Station, Rajasthan, alleging offences under Section 498A (cruelty by husband or his relatives), Section 406 (criminal breach of trust), and Section 323 (voluntarily causing hurt) of the Indian Penal Code, 1860. She claimed that her family had spent approximately Rs. 46,00,000 on the wedding and met dowry demands. The wife alleged harassment and torture for dowry, which continued until 6 July 2021. She also stated that her husband threatened her with divorce and physical harm. The wife was eventually driven out of the matrimonial home on 2 June 2021 and forced to return to her parental home in Chirawa on 11 June 2021. She further alleged that the accused and his family retained goods and valuables worth Rs. 30,00,000. The accused and his family sought anticipatory bail in Bengaluru, which was granted by the Additional City Civil and Sessions Judge, Bengaluru City.

Timeline

Course of Proceedings

The accused-husband and his family members sought anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 (CrPC) before the Additional City Civil and Sessions Judge, Bengaluru City. The Additional City Civil and Sessions Judge, Bengaluru City, allowed the anticipatory bail applications on 7 July 2022. The judge noted that the investigation had commenced and a major part was complete. It was reasoned that the alleged offenses were not punishable with death or life imprisonment and were to be tried before a Magistrate. The complainant-wife then filed a Writ Petition before the Supreme Court, which was later withdrawn. Subsequently, the present Special Leave to Appeal was filed. The Supreme Court appointed an amicus curiae to assist on the issue of jurisdiction to grant pre-arrest bail when the FIR is not registered within the territorial jurisdiction of a particular district or state.

Legal Framework

The judgment discusses several key legal provisions:

• Section 2(e) of the CrPC: Defines “High Court” as the High Court for that State.
• Section 2(j) of the CrPC: Defines “local jurisdiction” as the area within which a Court or Magistrate may exercise its powers.
• Section 14 of the CrPC: States that the local jurisdiction of a magistrate shall be confined to the limits defined by the Chief Judicial Magistrate.
• Section 9 of the CrPC: Mandates that the State Government shall establish a Court of Session.
• Section 41A of the CrPC: Refers to a Court of competent jurisdiction, which is empowered to try the case.
• Section 167(2) of the CrPC: Empowers the nearest Magistrate to authorize the custody of an accused for a period not exceeding 15 days.
• Section 156 of the CrPC: States that any officer in-charge of a police station may investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
• Section 177 of the CrPC: Mandates that every offense shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.
• Section 178 of the CrPC: States that in case of uncertainty or ambiguity regarding the local areas where an offence is committed, it may be inquired into or tried by a Court having jurisdiction over any of such local areas.
• Section 179 of the CrPC: States that when the consequence of the offending act ensues, it may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued.
• Section 438 of the CrPC: Deals with the direction for grant of bail to a person apprehending arrest. It states, “Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail…”
• Article 21 of the Constitution of India: Guarantees the right to life and personal liberty.
• Article 39A of the Constitution of India: Deals with equal justice and free legal aid.

Arguments

Amicus Curiae (Sri Vikramjeet Banerjee):

• Section 438 of the CrPC does not specify whether the High Court or Court of Session must be the same court that can take cognizance of the matter. This raises the question of whether a court can grant anticipatory bail for an offense registered outside its territorial jurisdiction.

• Various High Courts have adopted different approaches, including the “transit anticipatory bail” approach to provide interim relief to accused persons residing in a different state. This approach was adopted by the Supreme Court in State of Assam vs. Brojen Gogol [(1998) 1 SCC 397] and Amar Nath Neogi vs. State of Jharkhand [(2018) 11 SCC 797].

• The Supreme Court in Nathu Singh vs. State of U.P. [(2021) 6 SCC 64] emphasized a liberal approach to granting anticipatory bail to protect the right to life and liberty under Article 21.

• An alternative approach based on the “cause of action” theory suggests that courts at either the matrimonial home or the parental home may exercise jurisdiction, as seen in Navinchandra Majithia vs. State of Maharashtra [(2000) 7 SCC 640].

Complainant-Wife (Sri Kaustav Paul):

• The right to a fair and impartial investigation and trial is a fundamental right for both the accused and the complainant.

• The grant of bail by the Bengaluru Court, where the FIR was not lodged, deprived the complainant of the opportunity to oppose it.

• The jurisdictional prosecutor from Chirawa, Rajasthan, was absent during the hearing, and the Bengaluru prosecutor lacked the case diary and assistance from the area police station.

State of Rajasthan (Dr. Manish Singhvi):

• Territorial jurisdiction is fundamental to the administration of justice. The court takes cognizance of the offense, not the offender, as held in Raghubans Dubey vs. State of Bihar [(1967) 2 SCR 423].

• Section 177 of the CrPC states that every offense should be inquired into and tried by a court within whose local jurisdiction it was committed, as observed in Dashrath Rupsingh Rathod vs. State of Maharashtra [(2014) 9 SCC 129].

• The CrPC distributes adjudicatory duties based on territorial jurisdiction. The power to grant bail is reserved for the Magistrate who is competent to commit the case for trial. The power of the High Court or Court of Session under Section 438 of CrPC cannot be invoked by a court without territorial jurisdiction.

• The word “the” prefixed to “High Court” and “Sessions Court” in Section 438 of CrPC implies the court with competent jurisdiction and should not be interpreted liberally as “any.”

• Practical difficulties, such as forum shopping, may arise if anticipatory bail is treated as a fundamental right. Some states do not have anticipatory bail provisions. The court should have the stance of the investigating agency and the assistance of the public prosecutor while adjudicating applications for grant of anticipatory bail. Judgments such as In Re: Benod Ranjan Sinha [1981 SCC Online Cal 102], L.R. Naidu (Dr.) vs. State of Karnataka [1983 SCC OnLine Kar 206], and N.K. Nayar vs. State of Maharashtra [1985 Cri LJ 1887] should be set aside.

• An alternative form of relief is “transit anticipatory bail” or “interim protection,” as seen in Balchand Jain vs. State of M.P. [(1976) 4 SCC 572] and Sushila Aggarwal vs. NCT of Delhi [(2020) 5 SCC 1], which balances the right to life and personal liberty under Article 21 with the scheme of criminal justice.

• Interim protection should be granted for a limited period with safeguards to prevent forum shopping, such as establishing residency, disclosing reasons for seeking protection outside the normal place of residence, informing the public prosecutor, and ensuring the requirements of Section 438 of CrPC are satisfied.

State of Karnataka:

• Submitted that an appropriate order may be made in this case, having regard to the relevant judicial precedents on Section 438 of CrPC.

Accused-Husband (Smt. Anjana Sharma):

• The complainant-wife filed a frivolous FIR based on false allegations to extort money.

• Anticipatory bail was necessary to protect his fundamental rights from immediate arrest.

• The apprehension of arrest was during the COVID-19 pandemic, and he was under continuous pressure and threat of arrest. He is the sole earning member of his family.

• The FIR was filed in Chirawa to harass the accused and his family, as the alleged offenses were committed in Bengaluru. The complainant-wife is familiar with Bengaluru.

Submissions of Parties

Issues Framed by the Supreme Court

The Supreme Court framed the following issues for consideration:

1. Whether the power of the High Court or the Court of Session to grant anticipatory bail under Section 438 of the CrPC could be exercised with respect to an FIR registered outside the territorial jurisdiction of the said Court?
2. Whether the practice of granting transit anticipatory bail or interim protection to enable an applicant seeking anticipatory bail to make an application under Section 438 of the CrPC before a Court of competent jurisdiction is consistent with the administration of criminal justice?
3. What order?

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court considered the following authorities:

On the concept of transit anticipatory bail:

• State of Assam vs. Brojen Gogol [(1998) 1 SCC 397] – Supreme Court of India. The Court considered the Assam Police’s challenge to the Bombay High Court’s grant of anticipatory bail to an accused who was allegedly involved in offences perpetrated in Guwahati. The Court held that the anticipatory bail application ought to be made before the Gauhati High Court as the alleged activities had been perpetrated within its territorial jurisdiction.
• Amar Nath Neogi vs. State of Jharkhand [(2018) 11 SCC 797] – Supreme Court of India. The Court adopted the ‘transit anticipatory bail’ approach.
• Balchand Jain vs. State of M.P. [(1976) 4 SCC 572] – Supreme Court of India. The Court enunciated the approach of ‘transit anticipatory bail’ and ‘interim protection’ that balanced the right to life and personal liberty enshrined in Article 21 and the right to freedom of movement under Article 19(1)(d) with the fundamental scheme of administration of criminal justice, as prescribed in the CrPC.
• Sushila Aggarwal vs. NCT of Delhi [(2020) 5 SCC 1] – Supreme Court of India. The Court enunciated the approach of ‘transit anticipatory bail’ and ‘interim protection’ that balanced the right to life and personal liberty enshrined in Article 21 and the right to freedom of movement under Article 19(1)(d) with the fundamental scheme of administration of criminal justice, as prescribed in the CrPC.

On the liberal approach to anticipatory bail:

• Nathu Singh vs. State of U.P. [(2021) 6 SCC 64] – Supreme Court of India. The Court emphasized a liberal approach to the grant of anticipatory bail in view of the serious impact that the unfair denial of the same can have on the right to life and liberty under Article 21.

On the cause of action theory:

• Navinchandra Majithia vs. State of Maharashtra [(2000) 7 SCC 640] – Supreme Court of India. The Court considered the ‘cause of action’ theory in criminal law to determine jurisdiction.

On the concept of cognizance:

• Raghubans Dubey vs. State of Bihar [(1967) 2 SCR 423] – Supreme Court of India. The Court held that the Magistrate takes cognizance of an offense and not the offender.

On territorial jurisdiction:

• Dashrath Rupsingh Rathod vs. State of Maharashtra [(2014) 9 SCC 129] – Supreme Court of India. The Court observed that Section 177 of the CrPC postulates that every offense shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.

On the evolution of anticipatory bail:

• Shri Gurbaksh Singh Sibbia vs. State of Punjab [(1980) 2 SCC 565] – Supreme Court of India. The Court discussed the historical background of anticipatory bail and the need to balance personal liberty with the investigational powers of the police.
• Jamini Mullick vs. Emperor [(1909) ILR 36 Cal 174] – Calcutta High Court. The Court granted pre-arrest bail, emphasizing the High Court’s revisionary jurisdiction.
• Hidayat Ullah Khan vs. The Crown [AIR 1949 Lah 77] – Lahore High Court. The Court held that the High Court had the power to grant bail in anticipation of arrest.

On the interpretation of Section 438 CrPC:

• Gurbaksh Singh Sibia vs. State of Punjab [1977 SCC OnLine P&H 157] – Punjab and Haryana High Court. The Full Bench of the Punjab and Haryana High Court had rejected the application for bail while furnishing the reasons that the power under Section 438 of CrPC is of an extraordinary character and must be exercised sparingly in exceptional cases.
• Central Inland Water Transport Corporation vs. Brojo Nath Ganguly [(1986) 3 SCC 156] – Supreme Court of India. The Court discussed the need to expand or modify principles governing public policy, guided by the Preamble to the Constitution.

On access to justice:

• Anita Kushwaha vs. Pushap Sudan [(2016) 8 SCC 509] – Supreme Court of India. The Court held access to justice to be encompassed within the right to life under Article 21.
• D.K. Basu v. State of W.B. [(2015) 8 SCC 744] – Supreme Court of India. The Court held that the forum for justice must be reasonably accessible in terms of distance.

On inter-state arrests:

• State of Bihar vs. Deokaran Nenshi [(1972) 2 SCC 890] – Supreme Court of India. The Court held that 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.
• Sujata Mukherjee (Smt.) vs. Prashant Kumar Mukherjee [(1997) 5 SCC 30] – Supreme Court of India. The Court held that 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.
• Y. Abraham Ajith vs. Inspector of Police, Chennai [(2004) 8 SCC 100] – Supreme Court of India. The Court held that 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.
• Ramesh vs. State of T.N. [(2005) 3 SCC 507] – Supreme Court of India. The Court held that 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.
• Manish Ratan vs. State of M.P. [(2007) 1 SCC 262] – Supreme Court of India. The Court held that 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.
• Rupali Devi vs. State of U.P. [(2019) 5 SCC 384] – Supreme Court of India. The Court clarified that 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 Section 498A at the parental home.

Overruled Judgments:

• The Supreme Court overruled the judgments of Patna High Court in Syed Zafrul Hassan vs. State [1986 SCC Online Pat 3] and Calcutta High Court in Sadhan Chandra Kolay vs. State [1998 SCC Online Cal 382] 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.

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• State of Assam vs. Brojen Gogol [(1998) 1 SCC 397] – *[CITATION]* – The Court clarified that this case did not decide on the jurisdiction issue, but the court had made a general observation.
• Amar Nath Neogi vs. State of Jharkhand [(2018) 11 SCC 797] – *[CITATION]* – The Court noted that this case adopted the ‘transit anticipatory bail’ approach.
• Balchand Jain vs. State of M.P. [(1976) 4 SCC 572] – *[CITATION]* – The Court relied on this case for the approach of ‘transit anticipatory bail’ and ‘interim protection’.
• Sushila Aggarwal vs. NCT of Delhi [(2020) 5 SCC 1] – *[CITATION]* – The Court relied on this case for the approach of ‘transit anticipatory bail’ and ‘interim protection’.
• Nathu Singh vs. State of U.P. [(2021) 6 SCC 64] – *[CITATION]* – The Court noted that this case emphasized a liberal approach to the grant of anticipatory bail.
• Navinchandra Majithia vs. State of Maharashtra [(2000) 7 SCC 640] – *[CITATION]* – The Court noted this case for the ‘cause of action’ theory in criminal law.
• Raghubans Dubey vs. State of Bihar [(1967) 2 SCR 423] – *[CITATION]* – The Court used this case to emphasize that cognizance is of the offense, not the offender.
• Dashrath Rupsingh Rathod vs. State of Maharashtra [(2014) 9 SCC 129] – *[CITATION]* – The Court noted that this case observed that Section 177 of the CrPC postulates that every offense shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.
• Shri Gurbaksh Singh Sibbia vs. State of Punjab [(1980) 2 SCC 565] – *[CITATION]* – The Court discussed the historical background of anticipatory bail and the need to balance personal liberty with the investigational powers of the police.
• Jamini Mullick vs. Emperor [(1909) ILR 36 Cal 174] – *[Calcutta High Court. The Court noted that this case granted pre-arrest bail, emphasizing the High Court’s revisionary jurisdiction.
• Hidayat Ullah Khan vs. The Crown [AIR 1949 Lah 77] – *[CITATION]* – The Court noted that this case held that the High Court had the power to grant bail in anticipation of arrest.
• Gurbaksh Singh Sibia vs. State of Punjab [1977 SCC OnLine P&H 157] – *[CITATION]* – The Court noted that this case had rejected the application for bail while furnishing the reasons that the power under Section 438 of CrPC is of an extraordinary character and must be exercised sparingly in exceptional cases.
• Central Inland Water Transport Corporation vs. Brojo Nath Ganguly [(1986) 3 SCC 156] – *[CITATION]* – The Court discussed the need to expand or modify principles governing public policy, guided by the Preamble to the Constitution.
• Anita Kushwaha vs. Pushap Sudan [(2016) 8 SCC 509] – *[CITATION]* – The Court held access to justice to be encompassed within the right to life under Article 21.
• D.K. Basu v. State of W.B. [(2015) 8 SCC 744] – *[CITATION]* – The Court held that the forum for justice must be reasonably accessible in terms of distance.
• State of Bihar vs. Deokaran Nenshi [(1972) 2 SCC 890] – *[CITATION]* – The Court held that 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.
• Sujata Mukherjee (Smt.) vs. Prashant Kumar Mukherjee [(1997) 5 SCC 30] – *[CITATION]* – The Court held that 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.
• Y. Abraham Ajith vs. Inspector of Police, Chennai [(2004) 8 SCC 100] – *[CITATION]* – The Court held that 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.
• Ramesh vs. State of T.N. [(2005) 3 SCC 507] – *[CITATION]* – The Court held that 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.
• Manish Ratan vs. State of M.P. [(2007) 1 SCC 262] – *[CITATION]* – The Court held that 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.
• Rupali Devi vs. State of U.P. [(2019) 5 SCC 384] – *[CITATION]* – The Court clarified that 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 Section 498A at the parental home.

Overruled Judgments:

• The Supreme Court overruled the judgments of Patna High Court in Syed Zafrul Hassan vs. State [1986 SCC Online Pat 3] and Calcutta High Court in Sadhan Chandra Kolay vs. State [1998 SCC Online Cal 382] 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.

Key Findings

The Supreme Court made the following key findings:

• Jurisdiction for Anticipatory Bail: The High Court or Court of Session can grant anticipatory bail or interim protection even if the FIR is registered outside its territorial jurisdiction. This power is not restricted to courts within whose jurisdiction the offense is committed.
• Transit Anticipatory Bail: The concept of transit anticipatory bail or interim protection is consistent with the administration of criminal justice. It is a necessary interim measure to protect the accused while they approach the competent court.
• Safeguards: While granting anticipatory bail or interim protection, the court must ensure that the applicant is a resident of the territorial jurisdiction of the court, discloses reasons for seeking protection outside the normal place of residence, and informs the public prosecutor of the jurisdictional police station.
• Limited Duration: The interim protection should be for a limited period to enable the applicant to approach the competent court.
• No Forum Shopping: The court must ensure that the process is not misused for forum shopping or to avoid the jurisdiction of the court where the FIR is registered.
• Right to Fair Trial: The court must balance the right to life and personal liberty of the accused with the right to a fair and impartial investigation and trial for the complainant.
• Access to Justice: The court must ensure that the forum for justice is reasonably accessible in terms of distance and that the accused is not unduly prejudiced.

Ratio Decidendi

The ratio decidendi of the judgment is as follows:

• The High Court or Court of Session has the power to grant anticipatory bail or interim protection, even if the FIR is registered outside its territorial jurisdiction, to safeguard the personal liberty of the accused.
• This power should be exercised judiciously, ensuring that the accused is not unduly prejudiced and that the complainant’s right to a fair trial is also protected.
• The practice of granting transit anticipatory bail or interim protection is consistent with the administration of criminal justice, provided that it is for a limited period and with necessary safeguards to prevent abuse.

Ratio Decidendi Table

Final Order

The Supreme Court passed the following final order:

1. The impugned order dated 7 July 2022 passed by the Additional City Civil and Sessions Judge, Bengaluru City, was set aside.
2. The accused were granted four weeks of interim protection from arrest to enable them to approach the competent court in Chirawa, Rajasthan, to seek anticipatory bail.
3. The Court directed the Registry to forward a copy of the judgment to the Registrars General of all High Courts for circulation to all the concerned Courts.

Flowchart: Anticipatory Bail in Cross-State Cases