Monday, November 20, 2023

High Courts, Session Courts Can Grant Interim/Transit Anticipatory Bail Even When FIR Is Registered In Another State: Supreme Court

The Supreme Court Observed:

"...we hold that the Court of Session or the High Court, as the case may be, can exercise jurisdiction and entertain a plea for limited anticipatory bail even if the FIR has not been filed within its territorial jurisdiction and depending upon the facts and circumstances of the case, if the accused apprehending arrest makes out a case for grant of anticipatory bail but having regard to the fact that the FIR has not been registered within the territorial jurisdiction of the High Court or Court of Session, as the case may, at the least consider the case of the accused for grant of transit anticipatory bail which is an interim protection of limited duration till such accused approaches the competent Sessions Court or the High Court, as the case may be, for seeking full-fledged anticipatory bail".

Two issues had arisen before the court-

  • Whether the power of the HC/Sessions to grant anticipatory under Section 438 of CrPC could be exercised with respect to an FIR registered outside the territorial jurisdiction of the said court?
  • 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 CrPC before a court of competent jurisdiction is consistent with the administration of criminal justice?

The Court began by going to the legal framework, judgments of HC, the evolution of safeguard of anticipatory bail. It quoted Gurbaksh Singh Sibbia v. State of Punjab, a Constitutional bench judgment where the Supreme Court speaking through CJI YV Chandrachud observed “ The society has a vital stake in preserving personal liberty as well as investigational powers of police and their their relative importance at any given time depends upon the complexion and restraints of political conditions. How best to balance these interests while determining the scope of Section 438 of the Code of Criminal Procedure, 1973 was the focus of the said case.”

Then, the court placed the question in the context of personal liberty and access to justice. It held that “we must also look at same from angle of personal liberty and access to justice. Art. 39A deals with- equal justice and free legal aid which can be considered to be a specie of Art 21 which deals with right to life and liberty.”

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