PRIYA INDORIA versus STATE OF KARNATAKA AND ORS. ETC.

18. The above table is a testament to the rich jurisprudential discussion that has arisen out of the limited legislative guidance regarding the expression ‘the High Court or the Court of Session.’ The analysis of the above case law is as under: a. The Patna High Court in Syed Zafrul Hassan stressed on the plain meaning of Section 438 of CrPC to hold that ‘the High Court’ or ‘the Court of Session’ cannot mean “any” High Court or Court of Session. Therefore, it held that the application for direction under Section 438 of CrPC was not maintainable at Patna Bench of the Patna High Court because the FIR was registered at the Jhinkpani police station which falls in the district of Singhbhum. The matter thus came squarely within the jurisdiction of the Bench of the Patna High Court at Ranchi. The High Court stressed on the principle that a criminal Court takes cognizance of the off ence and not of individual off enders, vide Raghubans Dubey. Therefore, the High Court emphasized upon the practical diffi culties if the jurisdiction of criminal Court was determined by ‘the shady or evasive movements of the off ender’, there would be ‘judicial PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. ETC. [B. V. NAGARATHNA, J.] chaos and an inherent confl ict betwixt the comity of Courts.’ The High Court cautioned that if the application for anticipatory bail was maintainable outside the territorial jurisdiction of the High Court, ‘a fugitive off ender may well move from Court to Court ad infi nitum and if he fails in one jurisdiction then on to another until he secures relief in the last.’ b. Calcutta High Court in Sadhan Chandra Kolay relied upon Article 214 of the Constitution which states that there shall be a High Court for each State and had categorically held that the Sessions Judge has got no authority to exercise the power or jurisdiction under Section 438 of CrPC beyond the local limits of the territorial jurisdiction of the Sessions-Division. c. The facts in Honey Preet Insan are peculiar to the extent that the relief of interim protection was denied because the applicant was at large and had categorically refused to join investigation. d. At this juncture it may be noted that the aforementioned approach was supported by the Justice V.S. Malimath Committee’s Report on Reforms in Criminal Justice System. In section 7.33, page 121, the Committee had proposed that provision regarding anticipatory bail may 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. e. Another set of judgements, such as of the Delhi High Court in Surya Pratap Singh, Allahabad High Court in Ajay Agarwal, Amita Garg, Bombay High Court in Teesta Atul Setalvad, Nikita Jacob and Manda Suresh Parulekar, highlight the transit anticipatory bail approach. In these cases, the High Court granted transit bail and ruled that the grant of protection from arrest beyond the local limits of their jurisdiction is limited to the extent of consideration of bail for the transitional period. In other words, the High Courts in their respective judgement has read the scheme of administration of criminal justice and the provision for anticipatory bail in a conjoint sense, thereby limiting the relief of extra-territorial anticipatory bail to a defi nite interim period. f. Another line of judgments namely, by the Delhi High Court in Pritam Singh; Kerala High Court in C.L. Mathew; Bombay High Court in N.K. Nayar; Calcutta High Court In Re:Benod Ranjan Sinha and Karnataka High Court in L.R. Naidu and Gameskraft Technologies have read the expression ‘the High Court or the Court of Session’ in Section 438 of CrPC as diff erent and disjoint from the general scheme of criminal procedure, thereby deciding in favor of grant of protection from arrest to remove the apprehension of arrest at a particular place, irrespective of the territorial jurisdiction to take cognizance of the criminal off ence in question. The constitutional imperative of safeguarding personal liberty was emphasised and it was noted that a person may apprehend arrest at a place including at a place other than the one within the jurisdiction in which an alleged off ence has been committed. The High Courts in their respective judgments adverted to the lack of legislative qualifi cation of the expression ‘the High Court or the Court of Session’ to mean that it extends to any High Court or Court of Session in whose jurisdiction an arrest is apprehended by a person against whom an FIR has been fi led. Position of law overseas:

19. 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 benefi t 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. PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. ETC. [B. V. NAGARATHNA, J.]

20. 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: (a) 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.” (b) In the United Kingdom, the common law of arrest was codifi ed in Section 2 of the Criminal Law Act, 1967. The salient facets of Section 2 are that for an arrest to be lawful, the off ence must be one carrying a penalty of fi ve years imprisonment (an “arrestable off ence”); 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 off ence. 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 off ence may be repeated, especially though not exclusively in the case of violent off ences, it may be used to prevent such repetition. (c) The United Kingdom’s Royal Commission Report on Criminal Procedure (Philips Commission)(1981) – cited affi rmatively 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 off ences, investigating crime, and bringing suspected off enders before the Courts; and to simplify, clarify and rationalise the existing statutory powers of arrest, confi rming 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 fulfi lling 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, fi ngerprinted and photographed. The evidence submitted to us supports the view of the Police Complaints Board, expressed in their triennial report, that police offi cers 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 suff er such treatment. Arrest represents a major disruption to the suspect’s life…That disruption cannot, in our view, be justifi ed if it is not necessary to take him to the station for one or more of the following reasons: to fi nd out his name and address; to prevent the continuation or repetition of the off ence; to protect persons or property; to preserve evidence in connection with that off ence; 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 offi cer 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: (i) the person’s unwillingness to identify himself so that a summons may be served upon him; (ii) the need to prevent the continuation or repetition of that off ence; (iii) the need to protect the arrested person himself, or other persons or property; PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. ETC. [B. V. NAGARATHNA, J.] (iv) the need to secure or preserve evidence of or relating to that off ence or to obtain such evidence from the suspect by questioning him; and (v) the likelihood of the person failing to appear at Court to answer any charge made against him. (d) 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. (e) In Kenya, while there are no specifi c provisions on anticipatory bail, these are instead enshrined in constitutional provisions under the Bill of Rights. The Constitution of Kenya, 2010 provides for: (i) Bail of arrested person under Article 49(1)(h) (ii) 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 fi led seeking to prevent the violation or threatened violation of rights under Articles 23 and 165(3) of the Kenyan Constitution. (f) 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. Personal Liberty and Access to Justice: While we have analysed key judgments of this Court as well as various High Courts across the country on the pertinent question/issue raised in this case, we must also look at the same from the angle of personal liberty and access to justice. Article 39 A of the Constitution of India deals with equal justice and free legal aid, which can be construed to be a specie of Article 21 of the Constitution of India, which deals with right to life and liberty. For sake of immediate reference, Article 39A is extracted as under: “39A. Equal justice and free legal aid.- The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.”

21. A Constitution Bench of this Court in Anita Kushwaha vs. Pushap Sudan, (2016) 8 SCC 509 held access to justice to be encompassed within the right to life under Article 21 and observed as under: “31. Given the fact that pronouncements mentioned above have interpreted and understood the word “life” appearing in Article 21 of the Constitution on a broad spectrum of rights considered incidental and/or integral to the right to life, there is no real reason why access to justice should be considered to be falling outside the class and category of the said rights, which already stands recognised as being a part and parcel of Article 21 of the Constitution of India. If “life” implies not only life in the physical sense but a bundle of rights that makes life worth living, there is no juristic or other basis for holding that denial of “access to justice” will not aff ect the quality of human life so as to take access to justice out of the purview of right to life guaranteed under Article 21. We have, therefore, no hesitation in holding that access to justice is indeed a facet of right to life guaranteed PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. ETC. [B. V. NAGARATHNA, J.] under Article 21 of the Constitution. We need only add that access to justice may as well be the facet of the right guaranteed under Article 14 of the Constitution, which guarantees equality before law and equal protection of laws to not only citizens but non-citizens also. We say so because equality before law and equal protection of laws is not limited in its application to the realm of executive action that enforces the law. It is as much available in relation to proceedings before Courts and tribunal and adjudicatory fora where law is applied and justice administered. The citizen’s inability to access Courts or any other adjudicatory mechanism provided for determination of rights and obligations is bound to result in denial of the guarantee contained in Article 14 both in relation to equality before law as well as equal protection of laws. Absence of any adjudicatory mechanism or the inadequacy of such mechanism, needless to say, is bound to prevent those looking for enforcement of their right to equality before laws and equal protection of the laws from seeking redress and thereby negate the guarantee of equality before laws or equal protection of laws and reduce it to a mere teasing illusion. Article 21 of the Constitution apart, access to justice can be said to be part of the guarantee contained in Article 14 as well.” The Constitution Bench enumerated four facets of access to justice as: “33. Four main facets that, in our opinion, constitute the essence of access to justice are: (i) the State must provide an eff ective adjudicatory mechanism; (ii) the mechanism so provided must be reasonably accessible in terms of distance; (iii) the process of adjudication must be speedy; and (iv) the litigant’s access to the adjudicatory process must be aff ordable.”

22. Therefore, this Court has elevated the provision of a just adjudicatory forum for a citizen 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. Not only is the 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 by observing as under: “35. The forum/mechanism so provided must, having regard to the hierarchy of Courts/tribunals, be reasonably accessible in terms of distance for access to justice since so much depends upon the ability of the litigant to place his/her grievance eff ectively before the Court/ tribunal/Court/competent authority to grant such a relief. (See D.K. Basu v. State of W.B. [D.K. Basu v. State of W.B., (2015) 8 SCC 744 : (2015) 3 SCC (Cri) 824] )”

23. It was also emphasised that access to justice would, therefore, be a constitutional value of any signifi cance and utility only if the delivery of justice to the citizen is speedy, for otherwise, the right to access justice is no more than a hollow slogan of no use or inspiration for the citizen. It was held as under: “38. Access to justice will again be no more than an illusion if the adjudicatory mechanism provided is so expensive as to deter a disputant from taking resort to the same. Article 39-A of the Constitution promotes a laudable objective of providing legal aid to needy litigants and obliges the State to make access to justice aff ordable for the less fortunate sections of the society.” Section 438 CrPC : Interpretation

24. The answer to the points for consideration raised herein would emerge from the construction that is aff orded to the expression ‘the High Court or the Court of Session’ in Section 438 of CrPC. It was submitted before us that the use of the defi nite article ‘the’ before High Court and Court of Session must mean that High Court and that Court of Session which exercises territorial jurisdiction over the area where an off ence has been committed.

25. It indeed is a trite rule of statutory interpretation that 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, it may well be argued that personal liberty requires clear and exact defi nition of the off ence. Furthermore, appropriate care must be taken to adopt an interpretation which PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. ETC. [B. V. NAGARATHNA, J.] makes the textual interpretation match the contextual. In this regard, the following contextual aspects may be noted: a. The CrPC explicitly defines the ‘local limits’ and ‘local jurisdiction’ within which the Magistrate may exercise jurisdiction. b. Even though the High Court is defi ned in CrPC, no provision explicitly defi nes its territorial jurisdiction which has to be discerned from the Constitution of India. c. Section 438(1)(iv) of CrPC makes explicit the legislative intent to prevent humiliation of the persons who apprehend arrest, especially in politically motivated or malicious prosecutions or in false cases. d. The mischief that Section 438 of CrPC seeks to remedy is apprehension of wrongful arrest.

26. Therefore, we ought to provide sufficient amplitude to the expression ‘reason to believe that he may be arrested’, and look at the setting in which the words are used and the circumstances under which the law came to be passed to decide whether something implicit is behind the words used which controls the literal meaning of such words. 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.

27. Furthermore, the fundamental right to personal liberty and access to justice, which are constitutionally recognised and statutorily preserved through the presence of jurisdiction with superior Courts, would be undermined through such a restrictive interpretation. While construing a statute, constitutional Courts are obliged to render a contextually sensitive construction that preserves and furthers core constitutional values.

28. Reliance in this regard may be placed on the dicta of this Court in Central Inland Water Transport Corporation vs. Brojo Nath Ganguly, (1986) 3 SCC 156: “It is thus clear that the principles governing public policy must be and are capable, on proper occasion, of expansion or modifi cation. Practices which were considered perfectly normal at one time have today become obnoxious and oppressive to public conscience. If there is no head of public policy which covers a case, then the Court must in consonance with public conscience and in keeping with public good and public interest declare such practice to be opposed to public policy. Above all, in deciding any case which may not be covered by authority our Courts have before them the beacon light of the Preamble to the Constitution. Lacking precedent, the Court can always be guided by that light and the principles underlying the Fundamental Rights and the Directive Principles enshrined in our Constitution.” (emphasis by us)

29. We are mindful that this Court’s jurisprudence on Section 438 of CrPC, particularly in Gurbaksh Singh Sibbia and Sushila Aggarwal, has towed the line of wise exercise of judicial discretion while interpreting the silence of the Parliament to imply an intention to facilitate the grant of essential procedural relief to secure the right to life and personal liberty under Article 21. Whilst the Constitution Bench in Gurbaksh Singh Sibbia ruled against the procedural and substantive restrictions on the grant of relief of anticipatory bail, the Constitution Bench in Sushila Aggarwal held that the period of anticipatory bail cannot be limited, and may extend till the end of trial. The judgement of the Constitution Bench in Gurbaksh Singh Sibbia, in para 13, emphasises that, ‘the High Court and the Court of Session to whom the application for anticipatory bail is made ought to be left free in the exercise of their judicial discretion to grant bail if they consider it fi t so to do on the particular facts and circumstances of the case and on such conditions as the case may warrant.’

30. Maxwell in his treatise on Interpretation of Statutes (10 edn.), page 284 states that “the tendency of modern decisions on the whole is to narrow materially the diff erence between strict and benefi cial construction”. It follows that criminal statutes such as the CrPC are interpreted with rational regard to the aim and intention of the legislature. What has to be borne in the judicial mind is that the interpretation of all statutes should be PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. ETC. [B. V. NAGARATHNA, J.] favorable to personal liberty subject to fair and eff ective administration of criminal justice.

31. A remedy such as anticipatory bail secures citizens affl icted in diffi cult life circumstances – and such diffi culties would keep evolving as our collective lives and legal systems become more complex. We deem it fi t to distinguish between exercise of jurisdiction arising out of apprehension of arrest and jurisdiction conferred consequent to the “commission and cognizance of an off ence”. If the Parliament intended that the expression ‘the High Court or the Court of Session’, to mean only the Court that takes cognizance of an off ence, then the Parliament would have made this abundantly clear. The omission of any qualifi cation of the expression ‘the High Court or the Court of Session,’ ought to be constructed in a fashion that furthers the constitutional ideal of safeguarding personal liberty. It would be in furtherance of fostering personal liberty enshrined in Article 21 of the Constitution of India in entrusting a wider jurisdiction to the Court of Session and the High Court in the grant of anticipatory bail, than in foreclosing the same by restructuring the exercise of jurisdiction in the matter of grant of anticipatory bail.

32. In the context of the contentions advanced by Dr. Manish Singhvi that the unbridled power to grant extra-territorial anticipatory bail would cause inconsistencies because of the varying State amendments to Section 438 of CrPC, we note that the application of the provision for anticipatory bail in the State of Uttar Pradesh had been omitted vide the enactment of the Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1976. The Uttar Pradesh State Legislature applied Section 438 of CrPC vide enactment of Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 2018, pursuant to ‘continuous demand for its revival’, writ petitions before the High courts, and recommendations of the Uttar Pradesh State Law Commission in its third report in 2009. We also note that the Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 2022 makes the provision of anticipatory bail inapplicable (a) in case of off ences arising out of,— (i) The Unlawful Activities (Prevention) Act, 1967; (ii) The Narcotic Drugs and Psychotropic Substances Act, 1985; (iii) The Offi cial Secrets Act, 1923; (iv) The Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986; (v) The Protection of Children from Sexual Off ences Act, 2012; (b) to those off ences in which the death sentence may be awarded; (c) to the off ences of rape and illegal sexual intercourse enumerated in sections 376, 376-A, 376-AB, 376-B, 376-C, 376-D, 376-DA, 376-DB, 376-E of the Indian Penal Code, 1860.

33. Considering that the nature of criminal law regime in India, entwined with State amendments, the exercise of the jurisdiction for grant of extra-territorial anticipatory bail must be cognizant of the possibility of forum shopping. We also deem it necessary to take note of the evolution of the law on inter-state arrests, as this lies at the heart of ‘apprehension of arrest,’ for which the extraordinary jurisdiction of the High Court and Court of Session are attracted in case the accused resides in or is located in a territorial jurisdiction diff erent from the jurisdiction in which cognizance of crime is taken by the Court of competent jurisdiction.

34. Section 48 of CrPC permits the police to pursue an accused in other jurisdictions. A police offi cer, for the purpose of arresting without a warrant, one whom he is allowed to arrest, may pursue an individual anywhere in India. Prior to eff ecting the arrest outside a particular jurisdiction, the police is obligated to secure the transit remand i.e. the remand of the accused, for taking him from one place to another in their own custody, usually for the purpose of producing him before the concerned magistrate who has jurisdiction to try/commit the case. The primary purpose of such a 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 and tried. However in various cases, the police and investigating agencies have failed to exercise necessary restraint while functioning within their legal remit. It is for the aforesaid reason that an accused apprehending arrest seeks pre-arrest bail. The Courts in India have to be vigilant about such applications being fi led particularly when a person alleged to have committed an off ence can be proceeded with by setting the criminal law in motion in a place other than the place where the off ence has actually occurred. 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 Article 21 of the Constitution as well as a Directive Principle of State Policy, especially PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. ETC. [B. V. NAGARATHNA, J.] Article 39(A). More importantly, it is a facet of Article 14 of the Constitution which guarantees to every person in the country, equality before the law and equal protection of the law.

35. In this case, we are concerned with what is loosely termed as ‘transit anticipatory bail’. As we have seen, the expression ‘anticipatory bail’ is not defi ned in the CrPC though it is traceable to Section 438 of CrPC This Court in Balchand Jain had defi ned anticipatory bail to mean bail in anticipation of arrest. The Constitution Bench in Gurbaksh Singh Sibbia has held that fi ling of FIR is not a condition precedent for exercising power under Section 438 of CrPC What is required for invocation of power under Section 438 is that the person seeking anticipatory bail should show reasonable belief of imminent arrest. If the expression ‘anticipatory bail’ is not a defi ned expression, then it is quite but natural that the larger expression ‘transit anticipatory bail’ would not fi nd any exposition in the CrPC. Perhaps the 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. Immediately upon aff ecting the arrest of a person outside the jurisdiction where the off ence is registered, the police is obligated to secure a transit remand. The arrested person has to be produced before the nearest magistrate. If such a magistrate fi nds that he has no jurisdiction to try the case in which the accused has been arrested, he may order the accused to be forwarded to a magistrate having the jurisdiction to try the case or to commit it for trial. Thus, the 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 Article 22. As we have already noted, the primary purpose of such a 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 aforesaid requirement of transit remand, has arisen the necessity of ‘transit anticipatory bail’ for, an aff ected person cannot be without a remedy. 35.1. The word ‘transit’ is derived from the Latin word transitus which means passage from one place to another. Since the word ‘transit’ is an undefi ned expression in CrPC, we may take recourse to the dictionary meaning of the word ‘transit’. The Concise Oxford English Dictionary, 10th Edition, Revised, defi nes the word ‘transit’ to mean carrying of people or things from one place to another; the conveyance of passengers on public transport; an act of passing through or across a place. ‘Transited’ or ‘transiting’ would mean pass across or through. Similarly, the word ‘transition’ means the process of changing from one state or condition to another. Likewise, the adjective ‘transitory’ means not permanent; short- lived. An useful example of the above expression is transit visa which means a visa allowing its holder to pass through a country only, not to stay there. The word ‘transit’ has also been defi ned in the Black’s Law Dictionary, 11th Edition, to mean the transportation of goods or person from one place to another; passage; the act of passing. 35.2. In Dr. Brojen Gogol, this Court did not decide whether the Bombay High Court had the jurisdiction to entertain the anticipatory bail applications of the respondents since the crimes were registered within the State of Assam. On the short point that the State of Assam or the Assam police were not heard before granting anticipatory bail to the respondents, this Court set aside the order of the Bombay High Court but granted protection from arrest to the respondents for a limited duration to enable them to approach the Gauhati High Court. While passing such an order, this Court however made a general observation that the question of granting anticipatory bail to any person who is allegedly connected with the off ence in question, must for all practical purposes be considered by the High Court of Gauhati within whose territorial jurisdiction such activities could have been perpetrated. As we have noted above, this was a general observation made by this Court and not a declaration of law after due adjudication. 35.3. The Allahabad High Court in Anita Garg also noted that there is no legislation or law which defi nes transit or anticipatory bail in defi nitive or specifi c terms. Thereafter, the High Court proceeded to explain the term ‘transit’ to mean the act of being moved from one place to another. Since the expression ‘anticipatory bail’ means granting bail to an accused person who is anticipating arrest, ‘transit anticipatory bail’ would refer to bail granted to any person who is apprehending arrest by police of a state other than the state he is presently located in. On that basis, Allahabad High Court explained ‘transit anticipatory bail’ to mean PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. ETC. [B. V. NAGARATHNA, J.] protection from arrest for a certain defi nite period. The mere fact that an accused has been granted transit anticipatory bail does not mean that the regular court under whose jurisdiction the case would fall, shall extend such transit bail and convert the same into anticipatory bail. Therefore, the Allahabad High Court held that upon the grant of transit anticipatory bail, the accused person who has been granted such bail has to apply for regular anticipatory bail before the competent court which would then consider such a prayer on its own merits. Allahabad High Court has also held that transit anticipatory bail is a temporary relief which an accused gets for a certain period of time so that he can apply for anticipatory bail before the regular court. In this connection, Allahabad High Court heavily relied upon the decision of the Bombay High Court in Teesta Atul Setalvad. In that case, Bombay High Court held that High Court of one State can grant transit bail in respect of a case registered within the jurisdiction of another High Court in exercise of the power under Section 438 of CrPC. Bombay High Court was of the view that generally the power of a High Court to grant anticipatory bail is limited to its territorial jurisdiction and that the power cannot be usurped by disregarding the principle of territorial jurisdiction. Having said that, the High Court emphasized that temporary relief to protect liberty and to avoid immediate arrest can be given by the Bombay High Court.

36. In view of what we have discussed above, we are of the view that considering the constitutional imperative of protecting a citizen’s right to life, personal liberty and dignity, the High Court or the Court of Session could grant limited anticipatory bail in the form of an interim protection under Section 438 of CrPC in the interest of justice with respect to an FIR registered outside the territorial jurisdiction of the said Court, and subject to the following conditions: (i) Prior to passing an order of limited anticipatory bail, the investigating offi cer and public prosecutor who are seized of the FIR shall be issued notice on the fi rst date of the hearing, though the Court in an appropriate case would have the discretion to grant interim anticipatory bail. (ii) The order of grant of limited anticipatory bail must record reasons as to why the applicant apprehends an inter-state arrest and the impact of such grant of limited anticipatory bail or interim protection, as the case may be, on the status of the investigation. (iii) The jurisdiction in which the cognizance of the off ence has been taken does not exclude the said off ence from the scope of anticipatory bail by way of a State Amendment to Section 438 of CrPC. (iv) The applicant for anticipatory bail must satisfy the Court regarding his inability to seek anticipatory bail from the Court which has the territorial jurisdiction to take cognizance of the off ence. The grounds raised by the applicant may be – a. a reasonable and immediate threat to life, personal liberty and bodily harm in the jurisdiction where the FIR is registered; b. the apprehension of violation of right to liberty or impediments owing to arbitrariness; c. the medical status/ disability of the person seeking extra- territorial limited anticipatory bail.

37. It would be impossible to fully account for all exigent circumstances in which an order of extra territorial anticipatory bail may be imminently essential to safeguard the fundamental rights of the applicant. We reiterate that such 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 under Section 438 of CrPC before a Court of competent jurisdiction would cause irremediable and irreversible prejudice to the applicant. The Court, while considering such an application for extra-territorial anticipatory bail, in case it deems fi t may grant interim protection instead for a fi xed period and direct the applicant to make an application before a Court of competent jurisdiction.

38. We therefore set aside the judgement of Patna High Court in Syed Zafrul Hassan and judgment of Calcutta High Court in Sadhan Chandra Kolay to the extent that they hold that the High Court does not possess PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. ETC. [B. V. NAGARATHNA, J.] jurisdiction to grant extra-territorial anticipatory bail i.e., even a limited or transit anticipatory bail.

39. We shall now revert to our illustration given at the beginning of this judgment. In the illustration, we have stated that if a person commits an off ence in one State and the FIR is lodged within the jurisdiction where the off ence was committed but the accused resides in another State he can approach the Court in the other State and seek transit anticipatory bail of limited duration. We have held that the accused could approach the competent Court in the State where he is residing or is visiting for a legitimate purpose and seek the relief of limited transit anticipatory bail although the FIR is not fi led in the territorial jurisdiction of the District or State in which the accused resides, or is present depending upon the facts and circumstances of each case. Conversely, the off ence may be committed in one State, the FIR may be lodged in another State and the accused may reside in a third State. In which of the Courts of the three States would the accused approach for grant of anticipatory bail? We feel that having regard 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.

40. We are conscious that this may also lead the accused to choose the Court of his choice for seeking anticipatory bail. Forum shopping may become the order of the day as the accused would choose the most convenient Court for seeking anticipatory bail. This would also make the concept of territorial jurisdiction which is of importance under the CrPC pale into insignifi cance. Therefore, 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 a relief. Such a link with the territorial jurisdiction of the Court could be by way of place of residence or occupation/work/profession. By this, we imply that the accused cannot travel to any other State only for the purpose of seeking anticipatory bail. The reason as to why he is seeking such bail from a Court within whose territorial jurisdiction the FIR has not been fi led must be made clear and explicit to such a Court. Also there must be a reason to believe or an imminent apprehension of arrest for a non-bailable off ence made out by the accused for approaching the Court within whose territorial jurisdiction the FIR is not lodged or the inability to approach the Court where the FIR is lodged immediately.

41. Having regard to the vastness of our country and the length and breadth of it and bearing in mind the complex nature of life of the citizens, if an off ence has been committed by a person in a particular State and if the FIR is fi led 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.

42. While we so hold, we are conscious of the fact that the expression High Court in Section 2(e) of the CrPC reads as follows: (i) in relation to any State, the High Court for that State; (ii) in relation to a Union Territory to which the jurisdiction of the High Court for a State has been extended by law, that High Court; (iii) in relation to any other Union Territory, the highest Court of criminal appeal for that territory other than the Supreme Court of India. Section 6 of the CrPC states that besides the High Courts and the Courts constituted under any law, other than the CrPC, there shall be, in every State, inter alia, Courts of Session. Section 7 speaks about territorial divisions. Sub-section (1) of Section 7 states that every State shall be a sessions division or shall consist of sessions divisions; and every sessions division shall, for the purposes of CrPC, be a district or consist of districts. The proviso states that every metropolitan area shall be a separate session division and district. Sub-section (1) of Section 9 states that the State Government shall establish a Court of Session for every session division; every Court of Session shall be presided over by a Judge, to be appointed by the High Court; the High Court may also appoint Additional Sessions Judges to exercise jurisdiction in a Court of Session and such Judges may also sit in another division as may be directed by the High Court.

43. Section 26 of the CrPC deals with the Courts by which off ences are triable which states that subject to the other provisions of the CrPC, any PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. ETC. [B. V. NAGARATHNA, J.] off ence under the IPC may be tried by (i) the High Court; (ii) the Court of Session; or (iii) any other Court by which such off ence is shown in the First Schedule to be triable. In case of off ences under any other law when any Court is mentioned in this behalf in such law, being tried by such Court and when no Court is mentioned may be tried by (i) the High Court; or (ii) any other Court by which such off ence is shown in the First Schedule to be triable.

44. Further, on a reading of Section 438 of CrPC, we do not fi nd 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. In fact, on a reading of Section 438 of CrPC, 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. Further use of the word “the” before the words “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.

45. At the same time, we are also mindful of the fact that the 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, in view of what we have discussed above, 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. The 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 under Article 21 of the Constitution of India and since we have extended the concept of access to justice to such a situation and bearing in mind Article 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. Needless to say, the Court granting transit anticipatory bail would obviously examine the degree and seriousness of the apprehension expressed by the person who seeks transit anticipatory bail; while the object underlying exercise of such jurisdiction is to thwart arbitrary police action and to protect personal liberty besides providing immediate access to justice though within a limited conspectus.

46. 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 fi led 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- fl edged anticipatory bail.

47. There can also be a case where the accused is facing multiple FIRs for the same off ence in several States. He may seek an interim protection from a particular Sessions Court or the High Court in a State. Does he have to move from State to State for the purpose of seeking anticipatory bail or seek multiple pre-arrest bails? We would not attempt to give an answer to such a situation as the facts of the present case do not involve such a situation. PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. ETC. [B. V. NAGARATHNA, J.]

48. Another issue that calls for reiteration is, whether, the ordinary place of inquiry and trial would include the place where the complainant- wife resides after being separated from her husband. The position of law regarding the ordinary place of investigation and trial as per Section 177 of the CrPC, especially in matrimonial cases alleging cruelty and domestic violence, alleged by the wife, has advanced from the view held in the case of State of Bihar vs. Deokaran Nenshi, (1972) 2 SCC 890; Sujata Mukherjee (Smt.) vs. Prashant Kumar Mukherjee, (1997) 5 SCC 30; Y. Abraham Ajith vs. Inspector of Police, Chennai, (2004) 8 SCC 100, Ramesh vs. State of T.N. (2005) 3 SCC 507; Manish Ratan vs. State of M.P., (2007) 1 SCC 262 that 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. A three judge Bench of this Court has however clarifi ed in Rupali Devi vs. State of U.P., (2019) 5 SCC 384 (Rupali Devi) that 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 Section 498A at the parental home. It was held that the Courts 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, depending on the factual situation, also have jurisdiction to entertain a complaint alleging commission of off ences under Section 498-A of the IPC.

49. 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 offi cer 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: a. 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. b. The impugned orders are hence set aside. c. 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. d. 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. We place on record our appreciation for the valuable assistance rendered by learned senior counsel and learned ASG, Sri Vikramjeet Banerjee who has advanced submissions as an amicus curiae in this case as also of other senior counsel and counsel who have appeared in this case. Headnotes prepared by: Appeals disposed of. Nidhi Jain PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. ETC. [B. V. NAGARATHNA, J.]