Anticipatory Bail and Jurisdiction

Suppose you are ordinarily a resident of Delhi, but come to know that a case has been filed (or is about to be filed) against you in Mumbai, alleging you committed non-bailable and cognizable offences such as "Cheating", punishable under Section 420 of the Indian Penal Code 1860 [IPC]. Your law-savvy friends tell you that it is wise to urgently move an Application under Section 438 of the Criminal Procedure Code 1973 [Cr.P.C.] to get "Anticipatory Bail" and diffuse chances of an arrest. 

For those who are unaware of the term, "Anticipatory Bail" refers to a legal remedy where a person can go to court to seek bail in anticipation of her arrest on allegations of having committed a non-bailable offence, which may or may not have yet been registered as a case. If the court finds the apprehensions are genuine, and that there are reasons to protect against arrest, then it can direct the police to release the Applicant on bail in the event of her arrest.  

This, obviously, makes sense in our example, and so you get the papers ready. But here's the problem: where do you move the Application? In Delhi, where you reside, or in Mumbai where the case is filed? This post discusses the issue of jurisdiction in context of seeking Anticipatory Bail. I explain why the issue persists, and then try and make sense of the different opinions prevailing across High Courts. I argue that the wisest course seems to be to chart the middle course, and allow persons to file the Application in both places.

Some Necessary Background 

Section 438 Cr.P.C. was not part of the old Criminal Procedure Codes passed in British India. It was a new feature in the 1973 Code, based on a trend emerging in some states that was endorsed for statutory recognition by the Law Commission of India in its 41st Report (see pages 320-321 of the document), and its 48th Report (see page 10 of the document). Why was this new remedy added? In the 41st Report, the Commission argued that it was needed "mainly because sometimes influential people try to implicate their rivals in false cases for the purposes of disgracing them or for other purposes by getting them detained in jail for some days." It recommended that the power to pass such orders not be given to Magistrates, and be reserved for the Sessions Court or High Court. What the Commission recommended as Section 497-A for the old 1898 Code, has become Section 438 in the current Cr.P.C. 1973. 

As mentioned above, the idea of anticipatory bail was to ensure that persons be released on bail after arrest. Which is why many judicial decisions on the subject state that it is not a protection from arrest per se. However, in practice, anticipatory bail ends up working as a protection from arrest, because rather than arrest a person and release her on bail the police choose to not conduct any arrest at all. As a result, a person ends up requiring to file for bail once again after the police investigation is over. In a later section, I will come back to how this practical aspect of anticipatory bail also contributes to the issues of jurisdiction.       

The Jurisdiction Problem in Anticipatory Bail

Take a look at Chapter XIII of the Cr.P.C., which explains how to determine the jurisdiction of criminal courts. It is striking how this set of provisions regularly confers jurisdiction upon more than one place. This is not accidental, as it is guided by the idea that technicalities should not override the criminal process. So, if the Cr.P.C. itself is happy with multiple jurisdictions for the inquiries and trials, why am I suggesting there is a jurisdiction problem? Why can't both places, i.e. the site of accusations and the site of my fear of arrest, have jurisdiction in cases of anticipatory bail? 

This is because throughout Chapter XIII, the jurisdiction of criminal courts is based on places having connections to the alleged offence, not where the accused lives. This leads some people to argue that jurisdiction, as a concept in Indian criminal procedure, is offence-based.

This becomes important when we compare anticipatory bail with regular bail. In the latter, a person is taken into custody, and then moves for being released. In those situations, there are no qualms about where to file for release: you either go to the relevant police officer, or the court which extends your custody beyond 24 hours. And if you want to challenge your remand to custody, you go before the appellate courts within that area. Thus, custody is the key factor for deciding jurisdiction in regular bail cases, and thus ties in nicely with the Chapter XIII concepts. 

Anticipatory bail, on the other hand, precedes custody. What triggers this process is the apprehension of being taken into custody for committing a non-bailable offence. And since this apprehension is person-specific, it is quite possible for the place of potential custody to be divorced from where I reside and harbour my apprehensions of arrest. So, it appears that there are two key factors to decide jurisdiction: accusations of committing an offence, and apprehension of arrest; and it is not necessary for them to always overlap. And the place of residence for a defendant, as we saw, is not a principle for determining jurisdiction under Chapter XIII.

Besides relying on principles, the argument of particularity in deciding anticipatory bail jurisdiction also gets support from the text of Section 438(1) Cr.P.C. itself:

When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this Section; and the Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. [Emphasis mine]

The words in Section 438(1) are clear: you can apply to the High Court or the Sessions Court, not a / any High Court or Sessions Court. This "the" cannot be accidental, and therefore, must be seen as specifying one court as the court of competent jurisdiction. And since one provision of the Cr.P.C. cannot be contradicting the overarching principle on jurisdiction identified above, this particular court must be the place where the alleged offence occurred / case was registered. 

Diverging Judicial Opinion

In State of Assam v. Brojen Gogol / R.K. Krishna Kumar & Ors. [(1998) 1 SCC 397], the Supreme Court had a chance to address the issue. The case involved a batch of petitions where the Bombay High Court had granted anticipatory bail to accused persons in a case registered in Guwahati. When the State of Assam moved the Supreme Court, it transferred the cases to Assam, but while doing so expressly chose to leave the jurisdiction question undecided. 

As a result, today there is still a spectrum of divergent judicial opinion on the issue.* On one end are courts which subscribe to an expansive view on jurisdiction and allow applications to be filed in the place where the accused resides. This set includes some orders of the Delhi High Court. These courts do not bunk offence-based jurisdiction, but consider the expansive view necessary because of another, equally fundamental, principle of criminal procedure: ensuring the widest possible protection for personal liberty. 

At the other end of the spectrum are courts which subscribe to the restrictive view sketched out in the previous section. Further textual support for their view is derived from Section 81 Cr.P.C., which expressly confers jurisdiction in bail cases on a court other than the court within whose territorial jurisdiction the case is filed. Thus, the Patna High Court, Calcutta High Court, and Punjab & Haryana High Court all hold the view that only courts having jurisdiction over the place of alleged offences can entertain anticipatory bail applications.** 

Somewhere in the middle of this spectrum fall the Kerala High Court, Karnataka High Court, Bombay High Court and Gujarat High Court. The Kerala High Court held that an application can be filed where the accused resides. But, the scope of protection is limited to any arrests carried out within the territorial jurisdiction of the state. The other three High Courts don't impose territorial limits on the scope of protection, and instead place a time limit on the duration of protection from arrest, so as to enable to person to subsequently move an application before the other court. Both these views highlight different ways of expressing a judicial compromise between the rule of offence-based jurisdiction, with the other rule of protecting personal liberty from unnecessary restraint.   

Solving the Muddle 

Let me state at the outset that, in my view, the restrictive approach to jurisdiction is incorrect. 

This is because courts have wrongly derived from Chapter XIII that offence-based jurisdiction is an immutable principle in Indian criminal procedure. Chapter XIII applies to "inquiries and trials" in respect of cases. A hearing to decide whether anticipatory bail should be granted is certainly not a trial, but is it an inquiry? A Constitution Bench of the Supreme Court in Hardeep Singh [(2014) 3 SCC 92] said that the "inquiry" stage commences after filing a Charge-sheet. While this decision was in context of explaining the scope of Section 319 of the Code, the views on what is an "inquiry" are not limited to that context, are in fact supported by earlier cases as well.

Anticipatory bail hearings are at the start of the investigation process, very distant from the filing of a charge-sheet. It can be argued, therefore, that the principles of offence-based jurisdiction located in Chapter XIII are thus not applicable to the anticipatory bail context at all. Thus, while the principled opposition to residence-based jurisdiction falls, the support for such jurisdiction definitely remains, as there is nothing contrary to the principle that protecting personal liberty is a paramount consideration in the criminal process. If anything, the legislative history behind Section 438 Cr.P.C. confirms that this protection of personal liberty was the main reason why anticipatory bail was inserted in the new Cr.P.C. of 1973. To adopt a reading of the provision contrary to this express legislative intent is surely to be avoided.  

Therefore, the restrictive approach end of the spectrum is clearly undesirable. For different reasons, the views at the opposite end of the spectrum are equally undesirable — and, frankly, even the Delhi High Court has moved away from this position slowly — and make the middle ground arguably the most viable approach to follow. Even though it involves creating technically incorrect jargon — such as "transit" anticipatory bail, or "interim" anticipatory bail.

These reasons are two sets of practical considerations. The first, is how anticipatory bail orders are treated in practice (discussed a few sections above). Recall that technically anticipatory bail is not a protection from arrest. Thus, technically, the residence-based court would cease to matter after the urgent issue of anticipatory bail is decided. Because if a favourable order is passed, then the police would arrest the person and execute a bail bond, which would cement the offence-based jurisdiction henceforth. Any issues about bail etc. will have to be litigated in the local court now, because in law, that is the forum supervising the liberty of the accused person who is out on bail. 

However, we know that in practice anticipatory bail doesn't work this way. Rather, it becomes a protection from arrest because police refrain from carrying out the formal exercise of arresting the person and consequently releasing her on bail. To allow for an accused to be at liberty on the basis of orders passed by courts in a different state altogether is a problem. For starters, since there is usually no actual arrest, it means that there are, technically, no conditions on the person's liberty yet, which increases the chances of absconding; something already high if the accused lives in another state. Beyond this, I would argue that once we have moved away from the state of urgency that a scenario of anticipatory bail can entail and the principle of personal liberty is duly considered, it makes lesser sense to derogate from the logic of offence-based jurisdiction that the Cr.P.C. does subscribe to.

This is why the middle path makes most sense. It appreciates how anticipatory bail works in practice, and in this practical context gives due consideration to both principles, of protecting personal liberty and also securing local jurisdiction for prosecuting crimes. This view knows that ultimately, an order granting anticipatory bail proper is going to apply for the remainder of the investigation. Which is why it allows residence-based courts to protect against arrest for a sufficiently long period within which a person can approach the offence-based courts for anticipatory bail. One might argue that the view of the Kerala High Court, that protection from arrest cannot go beyond state-boundaries, is one that respects the federal system. But since we don't follow hard-federalism at all, and High Courts are constitutional creatures, one can also argue that the effect of a High Court's orders should certainly be allowed to travel beyond state-boundaries.

Conclusion
The issues regarding anticipatory bail and jurisdiction discussed in this post should not be issues in 2019, when we have had the provision on the statute books for almost half a century. Parliament could solve this muddle with a simple pen-stroke — delete "the" from Section 438(1) Cr.P.C. and it would seriously dilute the force in the restrictive view. But hoping for Parliament to amend criminal procedure is akin to Waiting for  Godot, and so we must wait, for the day when the Supreme Court might change its mind to settle the conflicts.

*Note, that none of these courts clearly tell us whether or not applications can also be filed before a Sessions Court.

**Note, that while the judgments don't say it, this view naturally means that if a case has not yet been filed in a particular place, then a plurality of courts can exist based on the jurisdiction rules of Chapter XIII.

[Post amended on 30.07.2019]