A long time ago, this Blog discussed some issues arising in the law under Section 438 of the Criminal Procedure Code 1973 [Cr.P.C.], the provision which confers a right to seek bail in a case involving allegations of non-bailable offences prior to the police actually carrying out an arrest. This is more popularly referred to as 'anticipatory bail'. The issue that had been discussed was one of territorial jurisdiction — suppose you are in one State, say Maharashtra, and learn that a case has been registered against you in Delhi alleging commission of non-bailable offences. Can you file for anticipatory bail before the Maharashtra courts, or must you travel to Delhi?
While this issue has not received the legislative scrutiny that it deserved either in terms of the existing Cr.P.C. or the law that might replace it, the Supreme Court weighed in on the issue in Priya Indoria v. State of Karnataka & Ors. [SLP (Crl) No. 11423-26 of 2023, Decided on 20.11.2023 ("Priya Indoria")]. A case was registered in Chirawa, Rajasthan, and the accused persons sought and obtained anticipatory bail in Bengaluru, Karnataka. The validity of these orders was sought to be challenged by the victim, as well as the counsel for the State of Rajasthan, on grounds that the Bengaluru courts lacked jurisdiction to grant anticipatory bail. Priya Indoria noted the absence of any clear precedent on the issue and took this opportunity to fill the gap.
Three options were possible for the Court: (i) to hold there is no jurisdiction on courts other than the place where the case is registered; (ii) to hold that there are no fetters on jurisdiction of courts other than the place where a case is registered, such as the place where the accused is ordinarily residing, or; (iii) to hold that courts at places other than where the case is registered can grant limited reliefs in the interests of justice. It held in favour of the third view, which according to the bench struck a balance between the interests of the investigation while safeguarding personal liberty.
The judgment discusses some of the existing judgments on the issue delivered by High Courts [Paras 17-18], besides also citing foreign law [Paras 19-20], to conclude that an interpretation totally excluding all courts outside the jurisdiction of the state where the case is registered "may lead to an anomalous and unjus consequence for bona fide applicants who may be victims of wrongful, mala fide or politically motivated prosecution." [Para 26] This is not only in light of the constitutional promise, but also because the text of Section 438 militates against the restrictive view [Paras 25, 31 to 35, 37, 42, 43, 44]. Importantly, it clarified that applications for anticipatory bail could be filed even before the concerned Sessions Court as opposed to being restricted only to High Courts which is what the existing orders had suggested.
However, to ensure that the balance is properly struck, the Court supported only a "limited anticipatory bail in the form of an interim protection" be granted in "exceptional and compelling circumstances" where refusal to grant relief would cause "irremediable and irreversible prejudice", and set out various conditions for the same [Para 36] and reiterated that the Court must satisfy itself as to the territorial proximity of the accused with the jurisdiction where the petition is being filed [Para 40].
The 'middle path' approach enabling other courts to grant some protection to aggrieved persons was the view favoured in the earlier post on the Blog too. Nevertheless, it must be said that while Priya Indoria does arrive at this conclusion, it places a much higher burden upon litigants seeking relief than what was the existing position emerging from the judgments of various High Courts. One can reasonably wonder whether the onerous language of Priya Indoria will do more harm than good by condemning many genuine petitions by the wayside simply because the highly subjective, and also highly arbitrary, standards could not be met. One can also reasonably wonder what was the need for such high thresholds when all that the Court endorsed was limited interim reliefs to enable a person to appear before the other courts.
The need for placing such a high threshold is seemingly justified in the mind of the Court because it wanted to discourage forum shopping [Paras 35, 36]. This point proceeds upon an assumption that while Section 438 Cr.P.C. does not place territorial fetters, there is still a proper forum for granting the relief of anticipatory bail, and it is the courts where the case is registered. This assumption is never really explored or explained at any place in the judgment, which is unfortunate given how it is central to the operative portions of the judgment.
For now, the judgment in Priya Indoria will at least ensure that those jurisdictions which, wrongly, stuck to a rigid territorial view of Section 438 Cr.P.C. can no longer deny applications only on such grounds.
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