869 November 22 2023

Transit Anticipatory Bail : PRIYA INDORIA V/s STATE OF KARNATAKA AND ORS. 2023

PRIYA INDORIA V/s STATE OF KARNATAKA AND ORS. 
B.V. NAGARATHNA, J. & UJJAL BHUYAN, J.

J U D G M E N T (Summary)

Facts of the case:
The complainant-wife got married to the accused-husband on 11.12.2020 and started living in Bengaluru. On 09.11.2021, the accused-husband filed a divorce petition before Family Court, Bangaluru.

The complainant-wife registered a First Information Report (‘FIR’, for short) being FIR No. 43/2022 for offences under Sections 498A, 406 and 323 of the IPC, at Chirawa Police Station, District Jhunjhunu, Rajasthan, on 25.01.2022 at 06.07 pm.

On 07.03.2022, the complainant-wife filed Transfer Petition No.590/22 before this Court to transfer the case from Bangaluru to Rajasthan. 

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 harassment and torture continued from 11.12.2020 until 06.07.2021.

The Sub-Inspector, Chirawa Police Station, Rajasthan made a note that from the victim’s report, the offences under Sections 498A, 406 and 323 of the IPC were made out and the investigation was initiated.

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) before the Additional City Civil and Sessions Judge, Bengaluru City and on 07.07.2022, allowed the all applications of anticipatory bail.

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.

On 09.12.2022, this Court allowed complainant-wife’s Transfer Petition. Being aggrieved by the grant of anticipatory bail to the accused- husband and accused Nos. 2, 3 and 4, the complainant-wife filed W.P. No.48/2023 before this Court, which came to be dismissed as withdrawn on 17.02.2023 with liberty to pursue her legal remedies. Thereafter, the present Special Leave to Appeal came to be filed.

Arguments/Submissions:

Learned senior counsel Sri Banerjee, while assisting this Court, relied on the following: -
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) 
Navinchandra Majithia vs. State of Maharashtra, (2000) 7 SCC 640, 

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.

Learned senior counsel Sri Paul appearing for the complainant- wife/appellant herein submitted as follows:
Grant of bail by the Court at Bengaluru in an F.I.R which was not lodged within its territorial Jurisdiction, had left the complainant- wife without an opportunity to oppose the same and the jurisdictional prosecutor from Chirawa, Rajasthan was also absent during the hearing. 

Learned senior counsel for the State of Rajasthan Dr. Manish Singhvi submitted as under:
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 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. 

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. The difficulty would arise if a High Court would grant pre-arrest bail for an offence committed in a State where the provision for anticipatory bail does not exist.

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.

Learned counsel for the accused-husband submitted as under: -
That the FIR was filed in Chirawa Police Station with the sole objective of causing harassment to accused-husband and his family as the alleged offences were committed in Bengaluru. That the complainant-wife is familiar with Bengaluru as even earlier, she was working with a Mumbai-based company in Bengaluru.

Court Decision: -
We are also mindful of the fact that the accused cannot seek full-fledged anticipatory bail in a State where he is a resident when the FIR has been registered in a different 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. 

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 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.

That if none of the ingredients constituting the offence can be said to have occurred within the local jurisdiction, that jurisdiction cannot be the ordinary place of investigation and trial of a matrimonial offence.

We allow and dispose of these appeals in the following terms:
Impugned orders of Anticipatory Bails are hence set aside. 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.

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Author

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Adv. ALOK KUMAR
Advocate Serving Delhi NCR
Delhi High Court & District Courts
LL.B.▪︎Faculty of Law▪︎Delhi University


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