Code of Criminal Procedure, 1973 – s. 438 – Direction for grant of bail to person apprehending arrest – Grant of transit anticipatory bail or interim protection to enable an applicant seeking anticipatory bail to make an application u/s 438 CrPC before a Court of competent jurisdiction, if consistent with the administration of criminal justice: Held: 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, 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 – Need for such a provision is to secure the liberty of the individual concerned – Since anticipatory bail as well as transit anticipatory bail are intrinsically linked to personal liberty Art. 21 of the Constitution of India and since the concept of access to justice is extended to such a situation and bearing in mind Art 14 thereof it would be necessary to give a constitutional imprimatur to the evolving provision of transit anticipatory bail – Otherwise, in a deserving case, there is likelihood of denial of personal liberty as well as access to justice for, by the time the person concerned approaches the Court of competent jurisdiction to seek anticipatory bail, it may well be too late as he may be arrested – 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 u/s 438 – This, would result in miscarriage and travesty of justice, aggravating the adversity of ETC.
the accused who is apprehending arrest and would be against the principles of access to justice. [Para 45, 46]
Code of Criminal Procedure, 1973 – ss. 438, 177 – Ordinary place of inquiry and trial, if would be inclusive of the place where the complainant-wife resides after being separated from her husband: Held: As per s. 177 especially in matrimonial cases alleging cruelty and domestic violence by the wife, 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 – 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 s. 498A at the parental home – At the place where the wife takes shelter after leaving or being driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, also have jurisdiction to entertain a complaint – On facts, the complainantwife claims to have received death threats and harassment over the phone even after her return to her parental home in Chirawa, Rajasthan the ordinary place of trial may be Chirawa – By the impugned orders, the accusedhusband and his family members were granted extra-territorial anticipatory bail without issuing notice to the investigating officer and public prosecutor in Police Station, Rajasthan wherein the complainant had lodged the FIR – Impugned orders set aside – Accused to approach the jurisdictional Court in Chirawa for anticipatory bail. [Paras 48, 49]
Code of Criminal Procedure, 1973 – s. 438 – Grant of anticipatory bail – Salient features – Stated. [Para 9.6]
Code of Criminal Procedure, 1973 – s. 438 – Grant of anticipatory bail – Expression “the High Court” or “the Court of Session” – Construction:
Held: On a reading of s. 438 it is not found that the expression “the High Court” or “the Court of Session” is restricted vis-à-vis the local limits or any particular territorial jurisdiction – However, 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 there for a legitimate purpose in any other State – It does not emerge that the expression “the High Court” or “the Court of Session” must have reference only to the place or territorial jurisdiction within which the FIR is lodged – If that was the implication, the same would have been expressly evident in the Section itself or by a necessary implication – Use of the word “the” before “High Court” and “Court of Session” also does not mean that only the High Court or the Court of Session, as the case may be, within whose jurisdiction the FIR is filed, is competent to exercise jurisdiction for the grant of transit anticipatory bail. [Para 44]
Code of Criminal Procedure, 1973 – s. 438 – Expression ‘transit anticipatory bail’ – Need and necessity for:
Held: Need and necessity for transit anticipatory bail has occasioned because the police has been conferred power under the CrPC to pursue an accused in other jurisdictions – Police is obligated to secure a transit remand of the accused for taking him from the place where he is arrested to the place where the crime is registered, for production before the competent magistrate in terms of the requirement of Art. 22 – Primary purpose of transit remand is to enable the police to shift the person in custody from the place of arrest to the place where the matter can be investigated – It appears that from the requirement of transit remand, the necessity of ‘transit anticipatory bail’ has arisen, for affected person cannot be without a remedy. [Para 35]
Bail – Anticipatory Bail – Evolution of the safeguard – Stated. [Para 10]
Bail – Pre-arrest bail – Position of law in United States of India, United Kingdom, Kenya and India – Comparative legal study – Stated. [Paras 19, 20]
Bail – Limited anticipatory bail – Grant of, by the High Court or the Court of Session u/s 438 CrPC with respect to FIR registered outside the territorial jurisdiction of the said Court – Conditions to be fulfilled – Stated. [Para 36]
Constitution of India – Art. 21 – Right to life and liberty under – Access to justice :
ETC.
Held: Art. 39A which deals with equal justice and free legal aid can be construed to be a specie of Art 21 – Citizen must be provided a just adjudicatory forum to agitate his grievance and seek adjudication of what he may perceive as a breach of his right to the level of a fundamental right – Adjudicatory forum supposed to be effective in its functioning and just, fair and objective in its approach, but it also must be conveniently approachable and affordable – Access to justice would, thus, be a constitutional value of any significance and utility only if the delivery of justice to the citizen is speedy. [Para 20, 22, 23]
Interpretation of statutes – Penal statutes – Rule of statutory interpretation:
Held: Penal statutes are to be construed strictly – When acts are to be made penal and are to be visited with loss or impairment of life, liberty, or property, the personal liberty requires clear and exact definition of the offence – Appropriate care must be taken to adopt an interpretation which makes the textual interpretation match the contextual – Fundamental right to personal liberty and access to justice, which are constitutionally recognised and statutorily preserved, would be undermined through a restrictive interpretation – While construing a statute, constitutional Courts are obliged to render a contextually sensitive construction that preserves and furthers core constitutional values – Criminal statutes such as the CrPC are interpreted with rational regard to the aim and intention of the legislature – Interpretation of all statutes should be favorable to personal liberty subject to fair and effective administration of criminal justice. [Paras 25, 27, 30]
Words and phrases – Word ‘transit’ – Meaning of – Stated. [Para 35.1]
LIST OF CITATIONS AND OTHER REFERENCES
State of Assam vs. Brojen Gogol (Dr), (1998) 1 SCC 397; Amar Nath Neogi vs. State of Jharkhand (2018) 11 SCC 797; Nathu Singh vs. State of U.P., (2021) 6 SCC 64; Navinchandra Majithia vs. State of Maharashtra [2000] 3 Suppl. SCR 82: (2000) 7 SCC 640; Raghubans Dubey vs. State of Bihar (1967) 2 SCR 423; Dashrath Rupsingh Rathod vs. State of Maharashtra [2014] 11 SCR 921: (2014) 9 SCC 129; Balchand Jain vs. State of M.P. [1977] 2 SCR 52: (1976) 4 SCC 572; Sushila Aggarwal vs. NCT of Delhi [2020] 2 SCR 1: (2020) 5 SCC 1; Shri Gurbaksh Singh Sibbia vs. State of Punjab [1980] 3 SCR 383: (1980) 2 SCC 565; Jamini Mullick vs. Emperor (1909) ILR 36 Cal 174, Hidayat Ullah Khan vs. The Crown, AIR 1949 Lah 77; Gurbaksh Singh Sibia vs. State of Punjab, 1977 SCC OnLine P&H 157; Teesta Atul Setalvad vs. State of Maharashtra Special Leave Petition (Criminal) No. 1770 of 2014; Joginder Kumar vs. State of U.P., [1994] 3 SCR 661: (1994) 4 SCC 260; Anita Kushwaha vs. Pushap Sudan [2016] 9 SCR 560: (2016) 8 SCC 509; Central Inland Water Transport Corporation vs. Brojo Nath Ganguly [1986] 2 SCR 278: (1986) 3 SCC 156; State of Bihar vs. Deokaran Nenshi [1973] 1 SCR 1004: (1972) 2 SCC 890; Sujata Mukherjee (Smt.) vs. Prashant Kumar Mukherjee [1997] 3 SCR 1127: (1997) 5 SCC 30; Y. Abraham Ajith vs. Inspector of Police, Chennai [2004]
3 Suppl. SCR 604: (2004) 8 SCC 100; Ramesh vs. State of T.N. [2005] 2 SCR 493: (2005) 3 SCC 507: ; Manish Ratan vs. State of M.P., [2006] 8 Suppl. SCR 226: (2007) 1 SCC 262; Rupali Devi vs. State of U.P., [2019]
6 SCR 577: (2019) 5 SCC 384; Re: Benod Ranjan Sinha 1981 SCC Online Cal 102; L.R. Naidu (Dr.) vs. State of Karnataka, 1983 SCC OnLine Kar 206; N.K. Nayar vs. State of Maharashtra, 1985 Cri LJ 1887 – referred to. In re: Sturman, 1984.604 F. Supp. 278. (F. E. Devine (1990); Regina vs. Secretary of State for the Home Department, Ex Parte LeecH, (1994) Q.B. 198; Coroline Kuthie Karanja vs. Director Public Prosecutions (2021) eKLR – referred to.
Anticipatory Bail: An Indian Civil Liberties Innovation, International Journal of Comparative and Applied Criminal Justice, 14:1-2, 107-114; Maxwell, Treatise on Interpretation of Statutes (10 edn.), p 284; Concise Oxford English Dictionary, 10 th Edition, Revised, Black’s Law Dictionary,
11 th Edition – referred to.
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