Anticipatory Bail Under BNSS 2023: Superseding of Maharashtra Amendment

 Current Legal Position on Anticipatory Bail

The legal landscape regarding anticipatory bail has undergone significant changes with the enactment of the Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, which came into effect on July 1, 2024. Here's the current position:

Maharashtra Amendment No Longer Applicable

The Maharashtra amendment to Section 438 CrPC is no longer applicable. Recent judicial decisions have clarified that with the repeal of the CrPC and enactment of BNSS 2023, Section 482 BNSS now uniformly governs anticipatory bail across all states, including Maharashtra.

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Supreme Court: The right of anticipatory bail is not a part of Article 21 of the Constitution of India

 Article 21 of the Constitution of India states that no person shall be deprived of his life or personal liberty except according to procedure prescribed by law. However, the power conferred by Article 21 of the Constitution of India is not unfettered and is qualified by the later part of the Article i.e. "...except according to a procedure prescribed by law". In State of M.P. v. Ram Kishna Balothia [State of M.P. v. Ram Kishna Balothia,   MANU/SC/0239/1995 : 1995:INSC:99 : (1995) 3 SCC 221: 1995 SCC (Cri) 439], the Supreme Court held that the right of anticipatory bail is not a part of Article 21 of the Constitution of India and held as under: (SCC p. 226, para 7) {Para 71}

7. ... We find it difficult to accept the contention that Section 438 of the Code of Criminal Procedure is an integral part of Article 21. In the first place, there was no provision similar to Section 438 in the old Code of Criminal Procedure. The Law Commission in its 41st Report recommended introduction of a provision for grant of anticipatory bail. It observed:

We agree that this would be a useful advantage. Though we must add that it is in very exceptional cases that such power should be exercised.

In the light of this recommendation, Section 438 was incorporated, for the first time, in the Code of Criminal Procedure of 1973. Looking to the cautious recommendation of the Law Commission, the power to grant anticipatory bail is conferred only on a Court of Session or the High Court. Also, anticipatory bail cannot be granted as a matter of right. It is essentially a statutory right conferred long after the coming into force of the Constitution. It cannot be considered as an essential ingredient of Article 21 of the Constitution. And its non-application to a certain special category of offences cannot be considered as violative of Article 21.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1872 of 2025

Decided On: 09.04.2025

Serious Fraud Investigation Office Vs. Aditya Sarda

Hon'ble Judges/Coram:

Bela M. Trivedi and P.B. Varale, JJ.

Author: Bela M. Trivedi, J.

Citation:  MANU/SC/0479/2025.

Read full judgment here: Click here.

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Supreme Court: Anticipatory bail should be granted to absconding accused in exceptional cases

 While called upon to exercise the said power, the Court concerned has to be very cautious as the grant of interim protection or protection to the Accused in serious cases may lead to miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass an interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases. At any rate, when warrant of arrest or proclamation is issued, the applicant is not entitled to invoke the extraordinary power. Certainly, this will not deprive the power of the Court to grant pre-arrest bail in extreme, exceptional cases in the interest of justice. But then, person(s) continuously, defying orders and keep absconding is not entitled to such grant.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1872 of 2025

Decided On: 09.04.2025

Serious Fraud Investigation Office Vs. Aditya Sarda

Hon'ble Judges/Coram:

Bela M. Trivedi and P.B. Varale, JJ.

Author: Bela M. Trivedi, J.

Citation:  MANU/SC/0479/2025.

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Supreme Court: Anticipatory bail should be granted in exceptional circumstances

 It is thus obvious from the catena of decisions dealing with bail that even while clarifying that arrest should be the last option and it should be restricted to cases where arrest is imperative in the facts and circumstances of a case, the consistent view is that the grant of anticipatory bail shall be restricted to exceptional circumstances. In other words, the position is that the power to grant anticipatory bail Under Section 438, Code of Criminal Procedure is an exceptional power and should be exercised only in exceptional cases and not as a matter of course. Its object is to ensure that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. (See the decision of this Court in HDFC Bank Ltd. v. J.J. Mannan and Anr.4). {Para 9}

10. When a Court grants anticipatory bail what it actually does is only to make an order that in the event of arrest, the arrestee shall be released on bail, subject to the terms and conditions. Taking note of the fact the said power is to be exercised in exceptional circumstances and that it may cause some hindrance to the normal flow of investigation method when called upon to exercise the power Under Section 438, Code of Criminal Procedure, courts must keep reminded of the position that law aides only the abiding and certainly not its resistant. 

25. We have already held that the power to grant anticipatory bail is an extraordinary power. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of imagination, be said that anticipatory bail is the rule. It cannot be the Rule and the question of its grant should be left to the cautious and judicious discretion by the Court depending on the facts and circumstances of each case. 

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1872 of 2025

Decided On: 09.04.2025

Serious Fraud Investigation Office Vs. Aditya Sarda

Hon'ble Judges/Coram:

Bela M. Trivedi and P.B. Varale, JJ.

Author: Bela M. Trivedi, J.

Citation:  MANU/SC/0479/2025.

Read full judgment here: Click here.

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Supreme Court: Anticipatory bail should not be granted as a matter of routine particularly in serious economic offences

 In view of the above settled legal position, it is no more res integra that economic offences constitute a class apart, as they have deep rooted conspiracies involving huge loss of public funds, and therefore such offences need to be viewed seriously. They are considered as grave and serious offences affecting the economy of the country as a whole and thereby posing serious threats to the financial health of the country. The law aids only the abiding and certainly not its resistant's. When after the investigation, a chargesheet is submitted in the court, or in a complaint case, summons or warrant is issued to the Accused, he is bound to submit himself to the authority of law. If he is creating hindrances in the execution of warrants or is concealing himself and does not submit to the authority of law, he must not be granted the privilege of anticipatory bail, particularly when the Court taking cognizance has found him prima facie involved in serious economic offences or heinous offences. In such cases when the court has reason to believe that the person against whom the warrant has been issued has absconded or is concealing himself so that warrant could not be executed, the concerned court would be perfectly justified in initiating the proclamation proceedings against him Under Section 82 Code of Criminal Procedure The High Courts should also consider the factum of issuance of non-bailable warrants and initiation of proclamation proceedings seriously and not casually, while considering the anticipatory bail application of such Accused.

{Para 23}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1872 of 2025

Decided On: 09.04.2025

Serious Fraud Investigation Office Vs. Aditya Sarda

Hon'ble Judges/Coram:

Bela M. Trivedi and P.B. Varale, JJ.

Author: Bela M. Trivedi, J.

Citation:  MANU/SC/0479/2025.

Read full judgment here: Click here.

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Supreme Court: Under which circumstances the court should issue non bailable warrant instead of summons for securing presence of accused?

 Just as liberty is precious for an individual so is the interest of the society in maintaining law and order. Both are extremely important for the survival of a civilised society. Sometimes in the larger interest of the public and the State it becomes absolutely imperative to curtail freedom of an individual for a certain period, only then the non-bailable warrants should be issued.

When non-bailable warrants should be issued

53. Non-bailable warrant should be issued to bring a person to court when summons or bailable warrants would be unlikely to have the desired result. This could be when:

• it is reasonable to believe that the person will not voluntarily appear in court; or

• the police authorities are unable to find the person to serve him with a summon; or

• it is considered that the person could harm someone if not placed into custody immediately. {Para 52}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1872 of 2025

Decided On: 09.04.2025

Serious Fraud Investigation Office Vs. Aditya Sarda

Hon'ble Judges/Coram:

Bela M. Trivedi and P.B. Varale, JJ.

Author: Bela M. Trivedi, J.

Citation:  MANU/SC/0479/2025.

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Supreme court: Factors which the High court and Session court must consider while releasing accused on anticipatory bail

23. The principles which can be culled out, for the purposes of the instant case, can be stated as under:

(i) The complaint filed against the accused needs to be thoroughly examined, including the aspect whether the complainant has filed a false or frivolous complaint on earlier occasion. The court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law. If the connivance between the complainant and the investigating officer is established then action be taken against the investigating officer in accordance with law.

(ii) The gravity of charge and the exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases, the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court.

(iii) It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion to grant bail must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined the investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. A great ignominy, humiliation and disgrace is attached to arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage.

(iv) There is no justification for reading into Section 438 Code of Criminal Procedure the limitations mentioned in Section 437 Code of Criminal Procedure. The plentitude of Section 438 must be given its full play. There is no requirement that the accused must make out a "special case" for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by Section 438 Code of Criminal Procedure to a dead letter.

A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by the acceptance of conditions which the court may deem fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.

(v) The proper course of action on an application for anticipatory bail ought to be that after evaluating the averments and accusations available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the Public Prosecutor. After hearing the Public Prosecutor the court may either reject the anticipatory bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of anticipatory bail. The Public Prosecutor or the complainant would be at liberty to move the same court for cancellation or modifying the conditions of anticipatory bail at any time if liberty granted by the court is misused. The anticipatory bail granted by the court should ordinarily be continued till the trial of the case.

(vi) It is a settled legal position that the court which grants the bail also has the power to cancel it. The discretion of grant or cancellation of bail can be exercised either at the instance of the accused, the Public Prosecutor or the complainant, on finding new material or circumstances at any point of time.

(vii) In pursuance of the order of the Court of Session or the High Court, once the accused is released on anticipatory bail by the trial court, then it would be unreasonable to compel the accused to surrender before the trial court and again apply for regular bail.

(viii) Discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court Under Section 438 Code of Criminal Procedure should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations.

(ix) No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with legislative intention, the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case.

(x) We shall also reproduce para 112 of the judgment wherein the Court delineated the following factors and parameters that need to be taken into consideration while dealing with anticipatory bail:

(a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

(b) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;

(c) The possibility of the applicant to flee from justice;

(d) The possibility of the accused's likelihood to repeat similar or other offences;

(e) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;

(f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;

(g) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution, because over implication in the cases is a matter of common knowledge and concern;

(h) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused;

(i) The Court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(j) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused in entitled to an order of bail.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 1134-1135 of 2015.

Decided On: 01.09.2015

Bhadresh Bipinbhai Sheth Vs. State of Gujarat and Ors.

Hon'ble Judges/Coram:

A.K. Sikri and Rohinton Fali Nariman, JJ.

Author: A.K. Sikri, J.

Citation: MANU/SC/0949/2015,AIR 2015 SC 3090,( 2016 ) 1 SCC 152.

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Bombay HC: High court and Session court has inherent power to grant interim anticipatory bail after enactment of BNSS

 Thus, there is absolutely no need of further discussion in

respect of the power of the Session Court or of this Court with

regard to grant of ad interim relief pending application for bail

in anticipation of arrest. Such power clearly exists as inherent

power under the provision of grant of bail. However, it is also

clear that even while granting ad interim relief, there has to be a

subjective satisfaction of the Court and such ad interim relief

should be on certain conditions and not blanket. It is required to

be considered on the premise of Article 21 of the Constitution of

India which is clearly traceable with an intent to protect life and

liberty of a person and more particularly to avoid unnecessary

arrest as well as to avoid any harassment in the hands of

investigating agency. {Para 88}

91. In the case of Shail Kumari Devi (supra) the Apex

Court was dealing with the provisions of Section 125 of the

Cr.P.C. observed that when the Magistrate is having power to

grant maintenance, implied in it power to grant interim

maintenance. The reasons of such power is also discussed by the

Apex Court that if such interim maintenance is not granted, the

wife would not be able to sustain till the main order is passed,

without any financial aid. Such observations apply with full force

to the matter in hand. If in a deserving case, ad interim relief is

not granted and in the meantime the arrest is effected, certainly

the application would become infructuous and the Accused will

have to resort to regular bail procedure. Thus, though such

power exists, the same has to be used by exercising the discretion

on case to case basis.

92. In the case of Bhadresh (supra) the Apex Court

discussed in detail the principles and guidelines regarding grant

of Anticipatory Bail under Section 438 of Cr.P.C which shall

apply with equal force to the provisions of Section 482 of BNSS

since both these provisions are pari materia.

IN THE HIGH COURT OF BOMBAY AT GOA

CRIMINAL WRIT PETITION NO.618 OF 2024(F)

Chowgule and Company Pvt. Ltd. Vs  The Public Prosecutor,

 CORAM: BHARAT P. DESHPANDE, J.

PRONOUNCED ON: 02nd August, 2024.

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Kerala HC: What conditions the court should impose while granting anticipatory bail to accused residing abroad?

 Suffice to say, the courts may have to cautiously and prudently assess the scenario and in such cases, it may be only in the fitness of things and to avoid giving leverage to the accused to abuse or misuse the grant of the bail order to stipulate a condition as per Sec.438(2) to regulate the bail order granted as per Sec.438(1) that the accused should come back to the country and co-operate with the Police investigati0n within a reasonable time limit. So also, the courts could impose conditions in the nature of Clause (iii) of Sec.438(2) that, in such a scenario the accused shall not leave India without the prior permission of the jurisdictional court concerned. In cases of this nature, conditions as per clauses (i) & (iii) of Sec.438(2), would be necessary to effectuate the very purpose of grant of bail, which is to ensure that the accused co-operates with both the investigati0n and the trial. {Para 98}

100. Further, since the conditions, as envisaged in clauses (i) & (iii) of Sec.438(2), form the very bedrock of the purposes and objectives of grant of bail so as to ensure that the accused co-operates with the investigation and trial, etc., the anticipatory bail court will also have jurisdiction to order that if such conditions imposed by the said court that the accused, who is abroad, should come back to India and co-operate with the police investigati0n within a stipulated time limit, etc., is not complied with by the accused, then, the order granting anticipatory bail, under Sec.438(1) could be ordered to be vacated, etc.

101. If the Court is satisfied about the parameters and criteria for grant of bail in a given case, where the accused is abroad, then the court, in its discretion, could consider the grant of interim bail order subject to satisfying the strict requirements of Sec.438. Once the Court grants such bail order, then it shall be the duty of the Police authorities and law enforcement agencies to honour such bail order granted to an accused, who is abroad, so that he can come to the country and execute the bail bonds, etc. Therein, the court can also stipulate that one of the conditions to regulate the grant of interim bail, which is an ancillary power under Sec.438(1), by imposing condition as in clause (i) of Sec.438(2) that, the applicant/accused should come back to India and co-operate with the interrogation process within a specified, reasonable time limit, etc. As and when the court thereafter considers the disposal of the main application, it is found that the accused has not complied with the condition to come to India and to co-operate with the Police investigati0n, etc., within the stipulated time limit, and the court is convinced about the lack of bona fides, etc., then the court will also have the discretion to dismiss the main application and to consequently order that the order granting interim bail will stand vacated and the main application itself could be dismissed. Such approach in appropriate cases would also be conducive of the legislative intention conceived in the engraftment of the discretion granted to the bail court to impose conditions as in Clauses (i) & (iii) of Sec.438(2) to regulate the grant of bail that the accused shall co-operate with the police investigation and shall not leave India without the permission of the jurisdictional court concerned. In other words, this option can be a basis for the court to be assured that the bail granted on interim basis is not abused or misused by the accused and to ensure the effectuation of the condition that the accused should be in India, as envisaged in Clause (iii) of Sec.438(2).

102. The learned Amici Curiae have submitted that in appropriate cases, if the Court finds that the case is free of complications and the case of the accused, who is abroad, fulfils the parameters and factors for grant of bail under Sec.438(1), then the Court will also have the discretion to dispose the main application granting bail, subject to strict condition, including the condition that the accused should come over to the country within a specified reasonable time limit to co-operate with the police investigation and shall not thereafter leave India, without the prior permission of the jurisdictional court, etc. That in such cases, the Court will also have the power to lay down a further condition that if the accused does not come to India, within the above specified time limit, then the bail so granted would stand vacated on expiry of the said time limit. That such a power is ancillary and incidental to the primary objectives of grant of bail which are to ensure the co-operation of the accused with the investigation and trial, etc.

103. It is also pointed out that if the Court can pass interim bail order to an accused who is abroad and can later vacate the interim bail order and dismiss the main bail application, if he does not comply with the condition to come to India within a specified time limit to co-operate with the police investigation, then the aforesaid option of passing a final order granting bail, with the afore conditions is also a lawful option in the exercise of discretion. In this regard, it is to be noted that such an option will also be open to the Court, depending upon the facts and circumstances of the case and if the Court is convinced that such discretion in that regard could be prudently exercised, so as to avoid misuse of the bail orders secured by accused, who is abroad.

104. In this regard, it may be pertinent to note the dictum laid down by the Constitution Bench of the Apex Court in para 92.3 of Sushila Aggarwal's case supra [MANU/SC/1538/2019 : (2020) 5 SCC 1, p. 110] that, wherein it has been inter alia held that, while considering an anticipatory bail application, the court has to consider various parameters like, the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, likelihood of fleeing justice (such as leaving the country), etc., and the courts would be justified and ought to impose conditions spelt out in Sec.437(3) CrPC [by virtue of Section 438(2)]. The need to impose other restrictive conditions, would have to be judged on a case-by-case basis and depending upon the materials produced by the State or the investigating agency. Such special or other restrictive conditions may be imposed if the case or cases warrant, but should not be imposed in a routine manner, in all cases. Likewise, conditions which limit the grant of anticipatory bail may be granted, if they are required in the facts of any case or cases; however, such limiting conditions may not be invariably imposed, etc.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Bail Appl. Nos. 4421 and 4983 of 2022

Decided On: 11.04.2023

Anu Mathew Vs. State of Kerala

Hon'ble Judges/Coram:

Alexander Thomas and C.S. Sudha, JJ.

Author: Alexander Thomas, J.

Citation:  MANU/KE/0926/2023.

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Whether the Court entertaining transit anticipatory bail has duty to ascertain proximity between the Accused and the territorial jurisdiction of the Court?

  Conversely, the offence 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- fledged anticipatory bail could be sought from the competent Court in the State in which the FIR is filed.  {Para 39}

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 Code of Criminal Procedure pale into insignificance. 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 filed 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 offence 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 offence has been committed by a person in a particular State and if the FIR is filed 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.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. ... of 2023 (Arising out of SLP (Crl.) Nos. 11423-11426 of 2023 (Arising out of Diary No. 7943 of 2023))

Decided On: 20.11.2023

Priya Indoria Vs. State of Karnataka and Ors.

Hon'ble Judges/Coram:

B.V. Nagarathna and Ujjal Bhuyan, JJ.

Author: B.V. Nagarathna, J.

Citation:  MANU/SC/1246/2023.

Read full Judgment here: Click here

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Whether Police Must Secure Transit Remand For Arrests Outside State To Safeguard Rights of accused Under Article 22 of constitution?

  Section 48 of Code of Criminal Procedure permits the police to pursue an Accused in other jurisdictions. A police officer, for the purpose of arresting without a warrant, one whom he is allowed to arrest, may pursue an individual anywhere in India. Prior to effecting 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.

{Para 34}

35. Perhaps the need and necessity for transit anticipatory bail has occasioned because the police has been conferred power under the Code of Criminal Procedure to pursue an Accused in other jurisdictions. Immediately upon affecting the arrest of a person outside the jurisdiction where the offence 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 finds 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. 

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. ... of 2023 (Arising out of SLP (Crl.) Nos. 11423-11426 of 2023 (Arising out of Diary No. 7943 of 2023))

Decided On: 20.11.2023

Priya Indoria Vs. State of Karnataka and Ors.

Hon'ble Judges/Coram:

B.V. Nagarathna and Ujjal Bhuyan, JJ.

Author: B.V. Nagarathna, J.

Citation:  MANU/SC/1246/2023.

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Supreme Court lays down conditions for grant of transit anticipatory bail

 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 Code of Criminal Procedure 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 officer and public prosecutor who are seized of the FIR shall be issued notice on the first 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 offence has been taken does not exclude the said offence from the scope of anticipatory bail by way of a State Amendment to Section 438 of Code of Criminal Procedure.

(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 offence. 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.

{Para 36}

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 Code of Criminal Procedure 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 fit may grant interim protection instead for a fixed period and direct the Applicant to make an application before a Court of competent jurisdiction.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. ... of 2023 (Arising out of SLP (Crl.) Nos. 11423-11426 of 2023 (Arising out of Diary No. 7943 of 2023))

Decided On: 20.11.2023

Priya Indoria Vs. State of Karnataka and Ors.

Hon'ble Judges/Coram:

B.V. Nagarathna and Ujjal Bhuyan, JJ.

Author: B.V. Nagarathna, J.

Citation:  MANU/SC/1246/2023.

Read full Judgment here: Click here

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Whether 'transit anticipatory bail' can be granted by a High Court or Court of Session to a person apprehending arrest?

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 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. {Para 46}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. ... of 2023 (Arising out of SLP (Crl.) Nos. 11423-11426 of 2023 (Arising out of Diary No. 7943 of 2023))

Decided On: 20.11.2023

Priya Indoria Vs. State of Karnataka and Ors.

Hon'ble Judges/Coram:

B.V. Nagarathna and Ujjal Bhuyan, JJ.

Author: B.V. Nagarathna, J.

Citation:  MANU/SC/1246/2023.

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Whether an offence Under SC & ST Atrocities Act is made out if abuses are given on Telephone?

 Further, she states that when her husband had given a phone call to landlord Mr. Murlidhar Tantak to apprise him of the behaviour of the tenant, at that time, he had abused as well as in between it is stated that the appellants had also abused. Meaning thereby, those abuses were given on phone. Abuses when given on phone cannot be said to be within the public view or at a public place so as to attract the ingredients of offence punishable under Section 3(1)(r) or 3(1)(s) of the Atrocities Act.

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Appeal No. 858 of 2022

Yogesh Laxman Pandav and Ors. Vs.  The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

Vibha Kankanwadi and Abhay S. Waghwase, JJ.

Author: Vibha Kankanwadi, J.

Decided On: 05.01.2023.

MANU/MH/0129/2023,2023 Lawweb (Bom HC ) 6.

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Whether S 306 of IPC will be applicable if the person committing suicide survives?

Under the general principle of law embodied in Section 511 I.P.C. every offence can be attempted also. In jurisprudential theory intention, preparation, attempt and commission are the four specific stages of commission of every crime, from principle and precedent I am unable to accept the theory that so far as the offence under Section 306 I.P.C. is concerned, this third step/phase must be held to be absent and non-existent in all cases. I take the view that an attempt to commit the offence under Section 306 I.P.C. is certainly possible and there is no warrant for the presumption that there cannot ever be a conviction for an offence under Section 306 r/w. 511 I.P.C. If a person abets the commission of suicide and the abetment does not succeed and fructify into a completed offence under Section 306 I.P.C. it must, according to me certainly, be held to fall within the sweep of Section 306 r/w. 511 I.P.C.{Para 21}

 IN THE HIGH COURT OF KERALA

B.A. No. 7311 of 2007

Decided On: 18.12.2007

 Berin P. Varghese and Ors. Vs. State of Kerala

Hon'ble Judges/Coram:

R. Basant, J.

Citation:  MANU/KE/0590/2007

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Whether the court must release accused on anticipatory bail if his custodial interrogation is not required?

 In many anticipatory bail matters, we have noticed one common argument being canvassed that no custodial interrogation is required and, therefore, anticipatory bail may be granted. There appears to be a serious misconception of law that if no case for custodial interrogation is made out by the prosecution, then that alone would be a good ground to grant anticipatory bail. Custodial interrogation can be one of the relevant aspects to be considered along with other grounds while deciding an application seeking anticipatory bail. There may be many cases in which the custodial interrogation of the accused may not be required, but that does not mean that the prima facie case against the accused should be ignored or overlooked and he should be granted anticipatory bail. The first and foremost thing that the court hearing an anticipatory bail application should consider is the prima facie case put up against the accused. Thereafter, the nature of the offence should be looked into along with the severity of the punishment. Custodial interrogation can be one of the grounds to decline custodial interrogation. However, even if custodial interrogation is not required or necessitated, by itself, cannot be a ground to grant anticipatory bail.

IN THE SUPREME COURT OF INDIA

 CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1834/2022 

 SUMITHA PRADEEP  Vs ARUN KUMAR C.K & ANR.

Coram: SURYA KANT; J., J.B. PARDIWALA; J. 

Dated; 21ST OCTOBER, 2022

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Questions and answers on law (Part 52)

 Q 1:- Whether victim has right to appeal against inadequate sentence to accused?

Ans:- Proviso to Section 372 ofCRPC (vide Act 5 of 2009) does not envisage right of appeal against inadequate sentence.

Q 2:- What is meant by Rule of law?

Ans:- Rule of law is the principle  that all people and institutions are subject to and accountable to law that is fairly applied and enforced; the principle of government by law.

Q 3:- What is retracted confession?

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Can the high court grant anticipatory bail if the offence is registered outside that state even though the accused was residing in its jurisdiction?

 That apart, the High Court of Jammu and Kashmir

not having the appellate powers under Chap. XXXl

nor the revisional powers under Chap, XXXI of the

Code, and nor even the powers of superintendence

and control Under Section 104 of the Constitution of

Jammu and Kashmir in relation to Courts situated

outside the territory of the State, its order will have

no binding force on those Courts. The same will be

true of the Police Stations which are situated outside

the territory of the State. Law will not, therefore,

countenance a situation where an order of the High

Court may be flouted by a Court lower than the High

Court or for that matter by an officer-in-charge of a

police station with impunity. If the interpretation

sought to be placed on Section 497-A by Mr. Singh,

that the High Court and the Court of Session have

powers to grant anticipatory bail to a person, against

whom a case has been registered with a police

station, situated outside the territory of the State is

to be accepted, then a situation is likely to arise

where the High Court of Jammu and Kashmir may

have to watch as a helpless spectator its order

granting anticipatory bail to the accused in that case

being disregarded by the Officer-in-charge of the

police station. Such cannot be the true intent and

scope of Section 497-A. {Para 5}

7. On the basis of the aforequoted reasoning, the

Court came to the conclusion that the High Court has no

jurisdiction to grant anticipatory bail to a person against

whom a case has been registered with a police station

which is situated outside the local limits of its

jurisdiction under the Code.

8. From the aforequoted enunciation of law on the

subject, it is clear that this Court does not have

jurisdiction to entertain and decide the bail application

which relates to an FIR that has been registered beyond

the local limits of this Court even though the

accused/petitioner may be residing within the

jurisdiction of this Court.

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

Bail App. No.65/2022

NASIR AHMAD WANI & ORS Vs  POLICE STATION NEEMUCH & ORS.

CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE

Dated: 03.06.2022.

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Under which circumstances Session court or High court can grant anticipatory bail to accused for limited period of time?

 A recent Constitution Bench judgment of this Court, in Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1 has clarified the extent of power exercisable by

Courts under Section 438, Cr.P.C. The Court ultimately held as follows:

“91.1. Regarding Question 1, this Court holds that the protection granted to a

person under Section 438 CrPC should not invariably be limited to a fixed period; it

should enure in favour of the accused without any restriction on time. Normal

conditions under Section 437(3) read with Section 438(2) should be imposed; if

there are specific facts or features in regard to any offence, it is open for the court

to impose any appropriate condition (including fixed nature of relief, or its being

tied to an event), etc.

91.2. As regards the second question referred to this Court, it is held that the

life or duration of an anticipatory bail order does not end normally at the time and

stage when the accused is summoned by the court, or when charges are framed,

but can continue till the end of the trial. Again, if there are any special or peculiar

features necessitating the court to limit the tenure of anticipatory bail, it is open for

it to do so.”

(emphasis supplied)

14. The Constitution Bench in Sushila Aggarwal (supra) has authoritatively held

that when a Court grants anticipatory bail under Section 438, Cr.P.C., the same is

ordinarily not limited to a fixed period and would subsist till the end of the trial.

However, it was clarified by the Court that if the facts and circumstances so warranted,

the Court could impose special conditions, including limiting the relief to a certain

period.

15. It is therefore clear that a Court, be it a Sessions Court or a High Court, in

certain special facts and circumstances may decide to grant anticipatory bail for a

limited period of time. The Court must indicate its reasons for doing so, which would

be assailable before a superior Court. To do so without giving reasons, would be

contrary to the pronouncement of this Court in Sushila Aggarwal (supra). If the High

Court had therefore decided to allow the anticipatory bail application of the

respondents-accused herein, albeit for a limited period of 90 days, the task before this

Court would have been somewhat easier. We would only have had to assess the

reasons assigned by the Court, if any, for the imposition of such special condition in

terms of the judgment in Sushila Aggarwal (supra).

In the Supreme Court of India

(BEFORE N.V. RAMANA, C.J. AND SURYA KANT AND ANIRUDDHA BOSE, JJ.)

Criminal Appeal No. 522 of 2021

Nathu Singh Vs  State of Uttar Pradesh and Others 

Decided on May 28, 2021

2021 SCC OnLine SC 402

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Whether court can grant Anticipatory bail to accused at post cognizance stage?

 From the perusal of this part of Section, 438 of the Crl. P.C., we find no restriction in regard to exercise of this power in a suitable case either by the Court of Sessions, High Court or this Court even when cognizance is taken or charge sheet is filed. The object of Section 438 is to prevent undue harassment of the accused persons by pre-trial arrest and detention. The fact, that a Court has either taken cognizance of the complaint or the investigating agency has filed a chargesheet, would not by itself, in our opinion, prevent the concerned courts from granting anticipatory bail in appropriate cases. The gravity of the offence is an important factor to be taken into consideration while granting such anticipatory bail so also the need for custodial interrogation, but these are only factors that must be borne in mind by the concerned courts while entertaining a petition for grant of anticipatory bail and the fact of taking cognizance or filing of charge sheet cannot by themselves be construed as a prohibition against the grant of anticipatory bail. In our opinion, the courts i.e. the Court of Sessions, High Court or this Court has the necessary power vested in them to grant anticipatory bail in non-bailable offences under Section 438 of the Crl. P.C. even when cognizance is taken or charge sheet is filed provided the facts of the case require the Court to do so.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1250 of 2003 

Decided On: 08.10.2003

 Bharat Chaudhary   Vs.  State of Bihar 

Hon'ble Judges/Coram:

N. Santosh Hegde and B.P. Singh, JJ.

Citation: MANU/SC/0787/2003,AIR 2003 SC 4662

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