# CASE DETAILS PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. ETC

- **Citation:** 2023 INSC 1008
- **Court:** Supreme Court of India
- **Decided:** 2023-11-20
- **Case number:** Criminal Appeal No. 003549-003552/2023 of 2023
- **Bench:** B. V. Nagarathna, Ujjal Bhuyan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/case-details-priya-indoria-v-state-of-karnataka-and-ors-etc-37070
- **Pages:** 65

## Headnote

Issue for consideration: Whether the power of the High Court or the
Court of Session to grant anticipatory bail u/s 438 CrPC could be exercised
with respect to an FIR registered outside the territorial jurisdiction of the
said Court; and whether the practice of granting 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 is
consistent with the administration of criminal justice.
Code of Criminal Procedure, 1973 - s. 438 - Extra-territorial
anticipatory bail - Power of the High Court or the Court of Session
to grant u/s 438 CrPC, if could be exercised with respect to an FIR
registered outside the territorial jurisdiction of the said Court:
Held: An interpretation giving rise to an absolute bar on the jurisdiction
of a Court of Session or a High Court to grant interim anticipatory bail
for an off ence committed outside the territorial confi nes of a High Court
or Court of Session may lead to an anomalous and unjust consequence
for bona fi de applicants who may be victims of wrongful, mala fi de or
politically motivated prosecution - In such circumstances, the Courts must
balance the interest of the accused in the context of the salutary principle
of access to justice which is a facet of Art. 21 of the Constitution as well as
a Directive Principle of State Policy-Art. 39(A) as also Art. 14 - Power to
grant extra-territorial anticipatory bail should be exercised in exceptional
and compelling circumstances only which means where, denying transit
anticipatory bail or interim protection to enable the applicant to make an
application u/s 438 before a Court of competent jurisdiction would cause
irremediable and irreversible prejudice to the applicant - Having regard
526
SUPREME COURT REPORTS
[2023] 15 S.C.R.
to the salutary concept of access to justice, the accused can seek limited
transit anticipatory bail or limited interim protection from the Court in the
State in which he resides but in such an event, a 'regular' or full-fl edged
anticipatory bail could be sought from the competent Court in the State
in which the FIR is fi led - This may also lead the accused to choose the
Court of his choice for seeking anticipatory bail - Thus, in order to avoid
the abuse of the process of the Court as well as the 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
relief. [Paras 26, 34, 37, 39, 40]
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-fl edged anticipatory bail in a State
where he is a resident when the FIR has been registered in a diff erent 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 t

## Text

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[2023] 15 S.C.R. 525 : 2023 INSC 1008
525
CASE DETAILS
PRIYA INDORIA
v.
STATE OF KARNATAKA AND ORS. ETC.
(Criminal Appeal No. 003549-003552/2023 of 2023)
NOVEMBER 20, 2023
[B. V. NAGARATHNA AND UJJAL BHUYAN, JJ.]
HEADNOTES
Issue for consideration: Whether the power of the High Court or the
Court of Session to grant anticipatory bail u/s 438 CrPC could be exercised
with respect to an FIR registered outside the territorial jurisdiction of the
said Court; and whether the practice of granting 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 is
consistent with the administration of criminal justice.
Code of Criminal Procedure, 1973 - s. 438 - Extra-territorial
anticipatory bail - Power of the High Court or the Court of Session
to grant u/s 438 CrPC, if could be exercised with respect to an FIR
registered outside the territorial jurisdiction of the said Court:
Held: An interpretation giving rise to an absolute bar on the jurisdiction
of a Court of Session or a High Court to grant interim anticipatory bail
for an off ence committed outside the territorial confi nes of a High Court
or Court of Session may lead to an anomalous and unjust consequence
for bona fi de applicants who may be victims of wrongful, mala fi de or
politically motivated prosecution - In such circumstances, the Courts must
balance the interest of the accused in the context of the salutary principle
of access to justice which is a facet of Art. 21 of the Constitution as well as
a Directive Principle of State Policy-Art. 39(A) as also Art. 14 - Power to
grant extra-territorial anticipatory bail should be exercised in exceptional
and compelling circumstances only which means where, denying transit
anticipatory bail or interim protection to enable the applicant to make an
application u/s 438 before a Court of competent jurisdiction would cause
irremediable and irreversible prejudice to the applicant - Having regard
526
SUPREME COURT REPORTS
[2023] 15 S.C.R.
to the salutary concept of access to justice, the accused can seek limited
transit anticipatory bail or limited interim protection from the Court in the
State in which he resides but in such an event, a 'regular' or full-fl edged
anticipatory bail could be sought from the competent Court in the State
in which the FIR is fi led - This may also lead the accused to choose the
Court of his choice for seeking anticipatory bail - Thus, in order to avoid
the abuse of the process of the Court as well as the 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
relief. [Paras 26, 34, 37, 39, 40]
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-fl edged anticipatory bail in a State
where he is a resident when the FIR has been registered in a diff erent 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
527
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 off ence can be said to have occurred within the local jurisdiction, that
jurisdiction cannot be the ordinary place of investigation and trial of a
matrimonial off ence - Adverse eff ects 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 offi cer 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
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS.
ETC.
528
SUPREME COURT REPORTS
[2023] 15 S.C.R.
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 fi led, 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 aff ected 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
fulfi lled - Stated. [Para 36]
Constitution of India - Art. 21 - Right to life and liberty under -
Access to justice :
529
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 eff ective in its functioning and just, fair
and objective in its approach, but it also must be conveniently approachable
and aff ordable - Access to justice would, thus, be a constitutional value of
any signifi cance 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 defi nition of the
off ence - 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 eff ective 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.
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS.
ETC.
530
SUPREME COURT REPORTS
[2023] 15 S.C.R.
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.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos.3549-3552 of 2023.
From the Judgment and Order dated 07.07.2022 of the Court of LXXI
Addl. City Civil & Sessions Judge, Bengaluru City (CCH-72) in CRLM
Nos.3941, 3943, 3944 and 3945 of 2022.
531
Appearances:
Vikramjit Banerjee, ASG, Tathagat Sharma, Siddhartha Sinha, Nring
Chamwidbo Zeliang, Shivam Singhania, Saransh Kumar, Prashant Rawat,
Advs. for the Amicus Curiae.
Kaustav Paul, Sr. Adv., Rishi Matoliya, H. D. Thanvi, Nikhil Kumar
Singh, Achal Singh Bule, Kshitij Bikaramia, Mahendra Singh Inda, Ms.
Sumati Sharma, Advs. for the Appellant.
Dr. Manish Singhvi, Sr. Adv., V. N. Raghupathy, M Bangaraswamy,
S Shashank Reddy, Ms. Shubhangi Agarwal, Apurv S., Sourav Roy,
Sandeep Kumar Jha, Vasudev Singh, Kaushal Sharma, Attarva Kotwal,
Ms. Anjana Sharma, Sukumar, Deepak Goel, Kumar Kartikay, Advs. for
the Respondents.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
NAGARATHNA, J.
Leave granted.
Bird's Eye View of the Controversy:
2. 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 off ence 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
fi les 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.
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS.
ETC.
532
SUPREME COURT REPORTS
[2023] 15 S.C.R.
Facts of the case:
2.1. The present appeals have been fi led 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 off ences
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 signifi cant number of couples
hail from two diff erent States, with the corollary being that the matrimonial
home of a complainant-wife is located in a diff erent State from where her
parental home is located.
3. According to the complainant-wife (appellant herein), the facts
giving rise to the present appeal, in a nutshell as gathered from the material
on record are:
3.1. The complainant-wife got married to the accused-husband on
11.12.2020 and started living in Bengaluru.
3.2. On 09.11.2021, the accused-husband fi led a divorce petition M.C.
No. 5786/2021 under Section 13 of the Hindu Marriage Act, 1955 before
the Principal Judge, Family Court, Bengaluru, Karnataka. Notice was issued
in the divorce petition on 15.11.2021.
3.3. On 07.03.2022, the complainant-wife fi led Transfer Petition
No.590/22 before this Court to transfer the case from the Principal Judge,
Family Court, Bengaluru to Court of Additional District Judge, Chirawa,
Jhunjhunu, Rajasthan.
533
3.4. The complainant-wife registered a First Information Report ('FIR',
for short) being FIR No. 43/2022 for off ences under Sections 498A, 406 and
323 of the IPC, at Chirawa Police Station, District Jhunjhunu, Rajasthan,
on 25.01.2022 at 06.07 pm.
3.5. At the time of marriage, two younger siblings of the complainantwife were still unmarried. The father of the complainant-wife, despite being a
heart patient who had undergone Angioplasty, spent about Rs. 46,00,000/- on
the wedding and had met the dowry demands made by the accused-husband
and his family members being his father, mother and younger brother, i.e.,
accused Nos.2, 3 & 4.
3.6. That the complainant-wife was a victim of harassment, torture
and assault for the demand of dowry. The accused-husband and his family
claimed that they had been cheated because the complainant-wife's father
had promised to spend one crore rupees for the marriage. The harassment
and torture continued from 11.12.2020 until 06.07.2021. For less than a year
of marriage that the couple spent together, the accused-husband perpetrated
cruelty upon her by frequently threatening to divorce her and get married
for the second time.
3.7. The accused-husband started threatening and abusing the
complainant-wife and stated that the complainant-wife was mentally and
physically incapable of intimate relationships. Additionally, he slapped the
complainant-wife about a month after the marriage and said that he was
not inclined for marriage and preferred to live a free life. He threatened the
complainant-wife that if she wanted to stay together, she would have to
fulfi l the dowry demand.
3.8. The complainant-wife informed her in-laws, being accused Nos.
2, 3 and 4, about the refusal of the accused-husband to consummate the
marriage and the physical assault committed on her. Allegedly, her in-laws
dismissed her by saying that it was not necessary to have a relationship
with the husband and as such, being a husband, he had the right to beat her.
3.9. Deeply agonized by this experience, a demand regarding purchase
of a scooter for the accused-husband was met. Rs.1,01,326/- was to be paid
online from complainant-wife's mother's bank account on 12.02.2021.
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS.
ETC. [B. V. NAGARATHNA, J.]
534
SUPREME COURT REPORTS
[2023] 15 S.C.R.
3.10. Thereafter, the accused-husband started demanding a car, but
the demand could not be fulfi lled. The complainant-wife was harassed
even when she was COVID-19 positive, and eventually, she was driven
out of the matrimonial house on 02.06.2021. The complainant-wife's father
begged the accused-husband to take back his daughter, but the accusedhusband refused.
3.11. Thereafter, on 11.06.2021, the complainant-wife's father was
forced to bring the complainant-wife back to Chirawa.
3.12. It was averred that goods and valuables worth Rs. 30,00,000/-
were still in possession of the accused-husband and his family. The
complainant-wife was continuously threatened with death by the accusedhusband and his family even when she was in her paternal home in Chirawa.
When the complainant-wife came to Chirawa, the accused-husband through
internet call and video, threatened to kill her if she came to Bengaluru and
kept saying all the time that if she came to Bengaluru, he would get her
killed by goons and her dead body would also not be known.
3.13. The complainant-wife refused to undergo a medical test and
noted that at the time she was thrown out of the accused-husband's house,
she had shown light blue marks near the neck and shoulder to her parents
but being hopeful of a change in the attitude of the husband, and aff ected
by social stigma, she did not fi le any report.
3.14. The Sub-Inspector, Chirawa Police Station, Rajasthan made a
note that from the victim's report, the off ences under Sections 498A, 406
and 323 of the IPC were made out and the investigation was initiated.
We reiterate that the aforesaid details are as narrated by the complainant
and are not our inferences of facts of the case.
Impugned Orders:
The accused-husband and his family members, accused Nos. 2, 3 and
4, sought the relief of anticipatory bail under Section 438 of the Code of
Criminal Procedure, 1973 ('CrPC', for short) by fi ling CRL. MISC. No.
3941/2022, CRL.MISC. No. 3943/2022, CRL. MISC. No. 3944/2022 and
CRL. MISC. No. 3945/2022 before the Additional City Civil and Sessions
Judge, Bengaluru City.
535
4. The Additional City Civil and Sessions Judge, Bengaluru City,
on 07.07.2022, allowed the applications of anticipatory bail made by the
accused-husband and his family members, accused Nos. 2, 3 & 4.
4.1. It is clear from a reading of the impugned orders that both
Bagalkunte Police Station, Bengaluru and Chirawa Police Station, Rajasthan,
were Respondents in the Bail Application. Both police stations were
represented by the same Public Prosecutor before the Additional City Civil
and Sessions Judge, Bengaluru City.
4.2. The learned Judge noted that the Investigating Officer had
commenced the investigation, conducted mahazar, recorded the statement of
witnesses and completed a major part of the investigation. It was reasoned
that the involvement of the accused-husband and his family members, being
accused Nos. 2, 3 and 4, was yet to be proved. The learned Judge further
reasoned that since the alleged off ences were not punishable with death or
imprisonment for life and are to be tried before the Magistrate, there was
absolutely no reason to deny the benefi t of anticipatory bail.
4.3. When the police of Chirawa called upon the accused-husband and
his family members, accused Nos. 2, 3 & 4, it was realised that the learned
Sessions Judge, Bengaluru, had granted them anticipatory bail. This was
confi rmed by the complainant-wife when she checked the Court's website.
4.4. On 09.12.2022, this Court allowed complainant-wife's Transfer
Petition No.590/22 and transferred the M.C. No. 5786/2021 from the
Principal Judge, Family Court, Bengaluru, to the Court of Additional District
Judge, Chirawa, Jhunjhunu, Rajasthan.
5. Being aggrieved by the grant of anticipatory bail to the accusedhusband and accused Nos. 2, 3 and 4, the complainant-wife fi led W.P.
No.48/2023 before this Court, which came to be dismissed as withdrawn
on 17.02.2023 with liberty to pursue her legal remedies.
6. Thereafter, the present Special Leave to Appeal came to be fi led and
notice was issued by this Court on 17.03.2023. On 07.07.2023, this Court
requested learned Additional Solicitor General Sri Vikramjit Banerjee to
assist the Court as an amicus curiae, having regard to the ramifi cations that
would arise in the context of Section 438 of CrPC and the jurisdiction of
the concerned Sessions Court or High Court to grant pre-arrest bail, when
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS.
ETC. [B. V. NAGARATHNA, J.]
536
SUPREME COURT REPORTS
[2023] 15 S.C.R.
the FIR is not registered within the territorial jurisdiction of a particular
district or State but in a diff erent State.
Submissions:
7. We have heard Sri Vikramjeet Banerjee, Additional Solicitor
General and learned amicus, Sri Kaustav Paul, learned senior counsel for
the complainant-wife, Dr. Manish Singhvi, learned Additional Advocate
General for the State of Rajasthan, Sri V.N. Raghupathy, learned counsel
for the State of Karnataka and Smt. Anjana Sharma, learned counsel for the
accused-husband. We have also perused the material on record.
7.1. Learned senior counsel Sri Banerjee, while assisting this Court
as an amicus, submitted as under:
i.
Section 438 of CrPC has only used the term 'High Court or
the Court of Session', as the case may be' but has not specifi ed
whether such a 'High Court or the Court of Session' has to be
the same Court which can take cognizance of the matter or can
be any 'High Court or Court of Session' across the country.
Therefore, there exists limited legislative guidance about the
power of a Court to grant anticipatory bail for an off ence that
is registered outside its territorial jurisdiction, in other words,
whether 'extra-territorial anticipatory bail' can be granted by a
High Court or Court of Session to a person apprehending arrest.
ii.
Elaborating on the divergent approaches of various High Courts
in the country regarding the grant of 'extra-territorial anticipatory
bail', learned amicus submitted that the Courts have evolved
the 'transit anticipatory bail' approach to provide an equitable
and interim relief enabling an accused travelling a residing
in a diff erent State to seek anticipatory bail. Learned amicus
clarifi ed that anticipatory bail and 'transit anticipatory bail' are
diff erent, as the former may or may not be restricted to a time
period, whereas the latter is always granted for a specifi c time
period, until an applicant can make an application for anticipatory
bail before a Court that can take 'cognizance' of the off ence. It
was further submitted that this Court had adopted the 'transit
anticipatory bail' approach in State of Assam vs. Brojen Gogol
537
(Dr), (1998) 1 SCC 397 (Brojen Gogol) and Amar Nath Neogi
vs. State of Jharkhand, (2018) 11 SCC 797.
iii.
Learned amicus further submitted that this Court in Nathu
Singh vs. State of U.P., (2021) 6 SCC 64 (Nathu Singh) had
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.
iv.
Referring to the judgement of this Court in Navinchandra
Majithia vs. State of Maharashtra, (2000) 7 SCC 640, learned
amicus apprised this Court of an alternative approach that is
based on the 'cause of action' theory in criminal law. In view of
the facts of the present case, it was submitted that the cause of
action essentially arose in the matrimonial home of the parties in
Bengaluru, Karnataka and continued in the complainant-wife's
paternal home in Chirawa, Rajasthan. Therefore, Courts at either
of these places may exercise their jurisdiction.
7.2. Learned senior counsel Sri Paul appearing for the complainantwife/appellant herein submitted as follows:
i.
The right to fair and impartial investigation and trial of an off ence
is a fundamental right not only of the accused but also of the
complainant.
ii.
Grant of bail by the Court at Bengaluru in an F.I.R which was not
lodged within its territorial Jurisdiction, had left the complainantwife without an opportunity to oppose the same.
iii.
The complainant-wife could not oppose the bail petition and
the jurisdictional prosecutor from Chirawa, Rajasthan was also
absent during the hearing. That only the Public Prosecutor of
Bengaluru was present at the time of the hearing of the bail
petition seeking anticipatory bail. The said prosecutor neither had
the case diary of the investigation with him nor any assistance
from the area police station where the F.I.R had been lodged.
Hence, the impugned orders may be set aside.
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS.
ETC. [B. V. NAGARATHNA, J.]
538
SUPREME COURT REPORTS
[2023] 15 S.C.R.
7.3. Learned senior counsel for the State of Rajasthan Dr. Manish
Singhvi submitted as under:
i.
The existence of territorial jurisdiction is the undergrid of
the institution of any case before a Court of law. The concept
of territorial jurisdiction is of cardinal significance to the
administration of justice. More specifi cally, both Chapter XIII
of the CrPC and the existing/general criminal jurisprudence
recognize that cognizance of an off ence and not the off ender
is taken. That this Court in Raghubans Dubey vs. State of
Bihar (1967) 2 SCR 423 (Raghubans Dubey) held that the
Magistrate takes cognizance of an off ence and not the off ender.
That territorial jurisdiction assumes paramount importance
as the off ender, unlike the defendant in a civil suit instituted
as per the Civil Procedure Code, 1908, has no role to play as
far as the conferment of jurisdiction of a Court is concerned.
That, in Dashrath Rupsingh Rathod vs. State of Maharashtra,
(2014) 9 SCC 129, it was observed that Section 177 of the
CrPC postulated that every off ence shall ordinarily be inquired
into and tried by a Court within whose local jurisdiction it was
committed.
ii.
Elaborating on the scheme of the CrPC, Dr. Singhvi submitted
that Chapter II of the CrPC distributes adjudicatory duties
amongst Magistrates and Courts as per territorial jurisdiction.
Section 14 of the CrPC specifi cally determines the jurisdiction
of local Magistrate(s). The provisions granting power to take
cognizance (Section 157) or power to investigate (Section 156),
are in accordance with the concept of 'ordinary place of inquiry
and trial,' as stated in Chapter XIII of the CrPC.
iii.
Therefore, the Court under whose territorial jurisdiction the
offence was committed becomes the Court of competent
jurisdiction to pass all orders, including bail and anticipatory
bail. That the language of Section 167(2) mandating a judicial
order for the detention of an accused beyond 24 hours, mentions
'nearest Magistrate' and not Magistrate of competent jurisdiction.
The nearest Magistrate, while possessing the power to extend
539
custody up to 15 days, does not have the power to grant bail
as the same power is reserved only for the Magistrate who is
competent to commit the case for trial. In this regard, learned
senior counsel submitted that the power of 'the High Court or
the Court of Session' to grant pre-arrest anticipatory bail under
Section 438 of CrPC cannot be invoked by a Court which does
not have territorial jurisdiction. It was further contended that a
proper construction of the word 'the' prefi xed to both High Court
and Sessions Court in the text of Section 438 of CrPC would
mean the High Court or the Sessions Court having the competent
jurisdiction. It was contended that the word 'the' cannot be given
so liberal a construction that it becomes indistinguishable from
'any.'
iv.
Learned senior counsel apprised this Court that even after the
introduction of the provision of anticipatory bail in the CrPC in
1973, many States, such as Uttar Pradesh, did not have the said
provision for decades altogether. It was further pointed out that
practical diffi culties such as forum shopping may arise from the
treatment of anticipatory bail as analogous to a fundamental
right. The diffi culty would arise if a High Court would grant
pre-arrest bail for an off ence committed in a State where the
provision for anticipatory bail does not exist. This may lead to
a situation where the High Court or the Court of Session would
not have the advantage of the stance of the investigating agency
or the assistance of the public prosecutor while adjudicating
applications for grant of anticipatory bail. In view thereof, it was
submitted that the High Court judgements, InRe: Benod Ranjan
Sinha, 1981 SCC Online Cal 102 (InRe: Benod Ranjan Sinha),
L.R. Naidu (Dr.) vs. State of Karnataka, 1983 SCC OnLine Kar
206 (L.R. Naidu) and N.K. Nayar vs. State of Maharashtra, 1985
Cri LJ 1887 (N.K. Nayar), permitting the grant of anticipatory
bail for an off ence committed outside their jurisdiction, should
be set aside. To buttress his contention, learned senior counsel
submitted that the Justice V.S. Malimath Committee Report on
Reforms in Criminal Justice System, in section 7.33, page 121,
had proposed that the provision regarding anticipatory bail may
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS.
ETC. [B. V. NAGARATHNA, J.]
540
SUPREME COURT REPORTS
[2023] 15 S.C.R.
be retained subject to two conditions: that the Court would hear
the Public Prosecutor; and that the petition for anticipatory bail
should be heard only by the Court of competent jurisdiction.
v.
As an alternative form of relief to persons resident in a particular
State but apprehending arrest by the police in another State,
learned senior counsel relied upon judgements of this Court in
Balchand Jain vs. State of M.P., (1976) 4 SCC 572 (Balchand
Jain) and Sushila Aggarwal vs. NCT of Delhi, (2020) 5 SCC 1
(Sushila Aggarwal), which 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. It was submitted that in an age where
the movement of a citizen is frequent and fast, an off ender may
apprehend arrest even with respect to a statement made in a
place of residence in one State, but the off ended person may be
residing in another State.
vi.
Learned senior counsel further contended that in order to prevent
the abuse of the process of law, this Court may hold that interim
protection for a limited period could be granted by the Court
nearest to the residence of the accused apprehending arrest.
However, in order to prevent forum shopping, certain safeguards
were also suggested for availing grant of interim protection as
follows:
a.
The person must show some residence proof to establish
that he/she had been residing in the area in which the interim
protection is sought;
b.
If the person is seeking interim protection apart from his/
her normal place of residence, he/she must state the reasons
for doing so and also disclose the nature of apprehension
of arrest in the area wherein he/she does not reside;
c.
The interim protection should not exceed a period of
fourteen days under normal circumstances;
541
d.
The concerned public prosecutor of the Court wherein
interim application is moved may be informed in advance
about the fi ling of the interim protection application. The
public prosecutor after looking at the nature of the interim
protection application, may contact the concerned police
station and seek information about the stage and nature of
the investigation of the crime committed;
e.
The limited duration of the interim protection to secure the
liberty of the individual from arrest in an alleged frivolous
case would also ensure that the regular anticipatory bail is
only granted by a Court of competent jurisdiction; and
f.
Interim protection should not be granted unless the
requirements enumerated under Section 438 of CrPC are
satisfi ed.
7.4. Learned counsel for the State of Karnataka submitted that having
regard to the relevant judicial precedents on Section 438 of CrPC, an
appropriate order may be made in this case.
7.5. Smt. Anjana Sharma, learned counsel for the accused-husband
submitted as under:
i.
The complainant-wife had fi led a frivolous FIR against him and
his family members based on false allegations and accusations. It
is alleged that the sole objective of complainant-wife is to extort
money as the accused-husband had refused to pay an amount of
Rs. 50,00,000/-.
ii.
That the anticipatory bail applications had been fi led for securing
protection from immediate arrest as the liberty of the petitioner
was at stake and instant protection was necessary to protect his
fundamental rights.
iii.
That the apprehension of arrest was during the subsistence of
the COVID-19 pandemic and he was under continuous pressure
and threat of being arrested. The accused-husband being the
only earning member having a younger brother and an elderly
ailing father, was compelled to seek protection of his life and
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS.
ETC. [B. V. NAGARATHNA, J.]
542
SUPREME COURT REPORTS
[2023] 15 S.C.R.
limb because the complainant-wife's father had infl uential local
contacts in the place where the FIR was registered, i.e., Chirawa,
Rajasthan. There was a reasonable apprehension of his arrest,
which was the guiding factor in fi ling the application before the
Bengaluru Court.
iv.
Learned counsel of the accused-husband also questioned the bona
fi des of the complainant-wife by relying upon the delay in fi ling
the present petition. It was further contended that the FIR was
fi led in Chirawa Police Station with the sole objective of causing
harassment to accused-husband and his family as the alleged
off ences were committed in Bengaluru. That the complainantwife is familiar with Bengaluru as even earlier, she was working
with a Mumbai-based company in Bengaluru.
Points for Consideration:
8. Having heard learned amicus and senior counsel and counsel for the
respective parties and on perusal of the material on record, the following
points would emerge for our consideration:
i.
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?
ii.
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?
iii.
What order?
The aforesaid questions shall be considered together as they are
intertwined.
Legal Framework:
9. Before discussing the points for consideration in the present appeal,
the relevant provisions of the CrPC are exposited as under:
543
9.1. Section 2(e) of the CrPC defi nes "High Court" to mean 'the
High Court for that State,' in relation to any State. In relation to the Union
Territory, it is defi ned as that High Court for a State to which the Union
Territory's jurisdiction has been extended. In case of any other Union
territory, it means the highest Court of criminal appeal for that territory
other than the Supreme Court of India.
9.2. Section 2(j) defi nes "local jurisdiction", in relation to a Court
or Magistrate to mean the local area within which the Court or Magistrate
may exercise its powers under the CrPC. Section 14 of the CrPC states that
the local jurisdiction of a magistrate shall be confi ned to the limits defi ned
by the Chief Judicial Magistrate. Section 9 of the CrPC mandates that the
State Government shall establish a Court of Session to be presided over by
a judge appointed by the High Court.
9.3. A Court of competent jurisdiction is referred to in Section 41A
of the CrPC wherein a police offi cer is empowered to arrest a person who
fails to comply with a notice for arrest subject to the orders of such Court.
This is a Court that is competent to try the case.