Preface
It must be taken note that while not leaving even a speck of doubt in the mind of anyone on accused being granted anticipatory bail by the High Courts and Sessions Courts when FIR is registered in another State, the Apex Court in a most learned, laudable, landmark and latest judgment titled Priya Indoria Vs State of Karnataka and Ors. in Criminal Appeal Nos. ………………… of 2023 arising out of SLP (Crl.) Nos. 11423-11426 of 2023 arising out of Diary No. 7943 of 2023] that was pronounced as recently as on November 20, 2023 took the balanced approach that in the interest of justice, courts should provide limited interim protection while considering the liberty of citizens, subject to certain conditions.

It must be noted here that in an appeal that was filed by the complainant/wife against the orders dated 07-07-2022 passed by the Additional City Civil and Sessions Judge, Bengaluru, (‘Bengaluru Court’) wherein the Court has granted anticipatory bail to the accused/husband and his family which alleged commission of offences under Sections 498-A, 406 and 323 of the Penal Code, 1860 (‘IPC’), registered by the complainant/wife at Rajasthan, the Division Bench of Apex Court comprising of Hon’ble Ms Justice BV Nagarathna and Hon’ble Mr Justice Ujjal Bhuyan has held that if an offence has been committed by a person in a particular State and if the First Information Report (FIR) is filed in another State and the accused is a resident in a third State, bearing in mind access to justice, the accused who is residing in the third State or who is present there for a legitimate purpose should be enabled to seek the relief of limited anticipatory bail of transitory nature in the third State.... Very rightly so!

Bird’s Eye View of the Controversy
At the very outset, this brief, brilliant, bold and balanced judgment sets the ball rolling 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 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.”

Position of law overseas:
Do note, the Bench notes in para 19 that:
Article 9 of the Universal Declaration of Human Rights, 1948 establishes that “no one shall be subjected to arbitrary arrest, detention or exile.” Article 10 of the International Covenant on Civil and Political Rights of the United Nations, 1966 establishes that “all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”.

These provisions in the International Human Rights instruments are a necessary safeguard against the reality of arbitrary and inhumane deprivation of liberty and the inability of those thus deprived to benefit from legal resources and constitutional guarantees that they are entitled to for the conduct of their defence as required by law in any judicial system and by application of international human rights standards.”

To put it tersely, the Bench notes in para 20 that:
Comparative legal study on law of criminal procedure presents India as an exemplar with respect to the provision for pre-arrest bail. It would be useful to consider how other jurisdictions have dealt with the issue of pre-arrest bail as under:

1. Possibly, the only known case of an application for a pre-arrest bail bond in the United States of America is In re: Sturman, 1984.604 F. Supp. 278. (F. E. Devine (1990) Anticipatory Bail: An Indian Civil Liberties Innovation, International Journal of Comparative and Applied Criminal Justice, 14:1-2, 107-114). The U.S. District Court for the Northern District of Ohio presumed that the applicant’s motion was made to spare himself of the embarrassment of arrest. In denying the motion as premature, the Chief District Judge commented that the “setting of a bail bond is to insure the accused’s presence at trial; it is not designed as a means to avoid arrest.
    
2. In the United Kingdom, the common law of arrest was codified in Section 2 of the Criminal Law Act, 1967. The salient facets of Section 2 are that for an arrest to be lawful, the offence must be one carrying a penalty of five years imprisonment (an “arrestable offence”); and there must, at the minimum, be suspicion on reasonable grounds that the person to be arrested either has committed, is committing or is about to commit the offence. It may be wielded as a tool to prevent the destruction of evidence, interference with witnesses or warning accomplices who have yet to be arrested. When there is reason to suspect an offence may be repeated, especially though not exclusively in the case of violent offences, it may be used to prevent such repetition.
    
3. The United Kingdom’s Royal Commission Report on Criminal Procedure (Philips Commission)(1981) - cited affirmatively by this Court in Joginder Kumar vs. State of U.P., (1994) 4 SCC 260, para 17-19 - proposed to restrict the circumstances in which the police could exercise the power of arrest with warrant to deprive a person of his liberty to those in which it would genuinely be necessary to enable them to execute their duties of preventing the commission of offences, investigating crime, and bringing suspected offenders before the Courts; and to simplify, clarify and rationalise the existing statutory powers of arrest, confirming the present rationale for the use of those powers. It stated as follows:
   
   In attempting to limit the power of arrest, we have no intention of inhibiting the police from fulfilling their functions of detecting and preventing crime. But we do seek to alter the practice whereby the inevitable sequence that would follow upon the arising of a reasonable suspicion is arrest, followed by being taken to the station, often to be searched, fingerprinted and photographed. The evidence submitted to us supports the view of the Police Complaints Board, expressed in their triennial report, that police officers are so involved with the process of arrest and detention that they fail at times to understand the sense of alarm and dismay felt by some of those who suffer such treatment.
   
   Arrest represents a major disruption to the suspect’s life. That disruption cannot, in our view, be justified if it is not necessary to take him to the station for one or more of the following reasons: to find out his name and address; to prevent the continuation or repetition of the offence; to protect persons or property; to preserve evidence in connection with that offence; to dispel reasonable suspicion or to turn it into a prima facie case.” (para 3.75)
   
   The Royal Commission underlined the necessity principle to diminish the possibility of arbitrary arrest, thereby requiring the police officer receiving the suspect in his custody to enquire as to whether it would be essential to keep the arrested person at the police station on the basis of the following criteria:
   1. the person’s unwillingness to identify himself so that a summons may be served upon him
   2. the need to prevent the continuation or repetition of that offence;
   3. the need to protect the arrested person himself, or other persons or property;
   4. the need to secure or preserve evidence of or relating to that offence or to obtain such evidence from the suspect by questioning him; and
   5. the likelihood of the person failing to appear at Court to answer any charge made against him.
4. The Queen’s Bench in Regina vs. Secretary of State for the Home Department, Ex Parte LeecH, (1994) Q.B. 198 held that it was a principle of fundamental importance that every citizen had a right of unimpeded access to a Court, and to a solicitor for the purpose of receiving advice and assistance in connection therewith.
5. In Kenya, while there are no specific provisions on anticipatory bail, these are instead enshrined in constitutional provisions under the Bill of Rights. The Constitution of Kenya, 2010 provides for:
   1. Bail of arrested person under Article 49(1)(h)
   2. Appropriate relief under Article 23(3) for breach of the Bill of Rights.

   Therefore, wherever the remedy has been considered, the Courts have applied the threshold applicable to an application filed seeking to prevent the violation or threatened violation of rights under Articles 23 and 165(3) of the Kenyan Constitution.
    

6. The High Court of Kenya in Coroline Kuthie Karanja vs. Director Public Prosecutions, (2021) eKLR extensively referred to Section 438 of CrPC and stated that the constitutional Courts of India had widely construed the fundamental aspects of anticipatory bail to be of great importance and anchored to the right to life and liberty of a person.

The High Court also emphatically reiterated its constitutional duty to go to the length and breadth of the Constitution to protect the rights and fundamental freedoms of Kenyans where need be, but it emphasized the need to be alive to its obligation not to curtail the other organs of the State from carrying out their constitutional mandate. Accordingly, the High Court granted anticipatory bail on the ground that the applicant therein had been arrested in the past and was out of custody on bond for a charge that was similar to the charge that she apprehended the arrest for.”

Most significantly, the Bench propounds in para 46 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 Section 438. 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. We say so for the reason that an 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, as the case may, at the least consider the case of the accused for grant of transit anticipatory bail which is an interim protection of limited duration till such accused approaches the competent Sessions Court or the High Court, as the case may be, for seeking full-fledged anticipatory bail.”

Finally and stated briefly, the Bench concludes by holding in para 49 that, “Applying Rupali Devi, in view of the fact that the complainant-wife herein 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.

But in the present case by the impugned orders, the accused-husband and his family members were granted extra-territorial anticipatory bail without issuing notice to the investigating officer and public prosecutor in Chirawa Police Station, Rajasthan wherein the appellant had lodged the FIR. In view of the facts and circumstances of the present case and the conclusion to the points considered hereinabove, we allow and dispose of these appeals in the following terms:

1. The impugned orders of the learned Additional City Civil and Sessions Judge Bengaluru City do not take note of respondent No.2 at all for allowing Criminal Misc. Nos. 3941/2022, 3943/2022, 3944/2022 and 3945/2022.
2. The impugned orders are hence set aside.
3. However, in the interest of justice, it is directed that no coercive steps may be taken against the accused for the next four weeks, to enable them to approach the jurisdictional Court in Chirawa, Rajasthan for anticipatory bail.
4. It is also directed that in case applications under Section 438 of CrPC are made before the Court of Session in Chirawa or the High Court of Rajasthan, the same shall be decided expeditiously and on their own merits.

In essence, we thus see that the Apex Court has now made it indubitably clear that High Courts and Sessions Courts can grant anticipatory bail to accused even if FIR is registered in another State. So there is definitely now no ambiguity left on this. No denying it!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut -250001, Uttar Pradesh