CRIMINAL APPELLATE JURISDICTION
INTRODUCTION:
Transitory anticipatory bail is incorporated as a safeguard under Section 438 of the Code of Criminal Procedure, 1973, despite the latter’s main focus being centred upon the granting of mere “anticipatory bail,” a rather expansive form of protection. Prior to 1973, courts determined judgments about the granting of anticipatory bail as part of their inherent and discretionary power because it had not been codified at that time. Being “Judge made law,” the concept of transit anticipatory bail was occasionally construed by Indian courts through a combined interpretation of several Code of Criminal Procedure, 1898 clauses, providing structure to an otherwise atypical legal jurisprudential postulation.
This ambiguity was however resolved by the Hon’ble Supreme Court in a landmark decision on November 20, 2023, wherein High Courts and Sessions Courts have the authority to provide Transit Anticipatory Bail when an accused person has been the subject of a First Information Report (“FIR”) in a separate state. By doing this, the Supreme Court reversed the rulings of the High Courts in Calcutta and Patna, which had held that High Courts or Sessions Courts (collectively, “Courts”), whose jurisdiction the FIR was not registered, were not authorized to grant anticipatory bail in the cases of Sadhan Chandra Kolay v. State and Syed Zafrul Hassan and Anr. v. State.
It was henceforth upheld and advised to subordinate courts all across the subcontinent to only seldom and in extraordinary cases grant such a Transit Anticipatory Bail. In furtherance of the same, the apex judicature herein guaranteed the preservation of liberty for those who are unable to approach their respective jurisdictional courts owing to the fear of being arrested. This was overturned in the said case as well to ease the way of justice for which every citizen is entitled to.
BACKGROUND:
1. Factual Matrix-
Priya Indoria herein the complainant-wife had filed the current appeals in opposition to the decisions dated 07.07.2022 issued in Criminal Misc. Nos. 3941/2022, 3943/2022, 3944/2022, and 3945/2022 by the learned Additional City Civil and Sessions Judge Bengaluru City. According to the aforementioned orders, the accused-husband and his family, identified as accused Nos. 2, 3, and 4, in FIR No. 43/2022, with alleged commission of offences under Sections 498A, 406, and 323 of the Indian Penal Code, 1860 (abbreviated “IPC”), were granted anticipatory bail by the learned Additional City Civil and Sessions Judge Bengaluru City. Considering the foregoing, it was acknowledged that the societal fact of criminal accusations concerning cruelty, dowry harassment, and domestic abuse are largely the result of failed marriages. A considerable proportion of couples come from two different states due to the rising migration of young people seeking employment and marriage opportunities, combined with the effects of economic liberalization. This means that the marital residence of a complainant-wife is situated in a different state than her parents’ home.
The complainant-wife wed the accused-husband and shifted to Bengaluru thereafter following the same. The sisters of Priya were unmarried and single at the time of marriage and despite having undergone angioplasty for his heart condition, the complainant-wife’s father spent around Rs. 46,000,000 on the wedding and complied with the dowry demands made in the rituals and wedding ceremony. Depsite all such efforts, she was still subjected to abuse, torture, and harassment lasting from December 11, 2020, until July 6, 2021 wherein the accused-husband often in between threatened to undergo a second marriage and filing for divorce from her during the couple’s less than a year of marriage thereby treating her cruelly. The complainant-wife was verbally and physically abused by the accused-husband, who also claimed that she was not capable of having close connections. An instance of this can be found when a month or so after they were married, he slapped his wife asking her to leave him alone and has to provide him with more dowry if she wished to remain with her husband and maintain the marriage.
She even complained about the same to her in laws who dismissed her by stating that his husband has the ultimate authority over her and they cannot interfere within it which is why it was justified if he physically abused her.
On 12.02.2021, an online payment of Rs. 1,01,326/-was acquired by the husband from his wife’s account for a dowry demand of scooter put forth by him which was fulfilled by her father out of helplessness. He thereafter wanted a car from her in furtherance of the above demand which was however not met following which she was eventually driven out of her marital residence on 02.06.2021 after experiencing harassment even after testing positive for COVID-19.
It was claimed that the accused husband and his family were still in possession of items and jewels valued at Rs. thirty lakhs. Even when the complainant-wife was in her paternal house in Chirawa, she was constantly threatened with murder over a phone and video call every now and then by the accused-husband and his relatives to not return to Bengaluru. The complainant-wife at first declined to have a medical examination and stated that she had shown her parents light blue marks around her neck and shoulder when she was kicked out of the accused-husband’s home, but she chose not to report the incident because she was hoping the husband would change his behaviour and primarily because she was afraid of the social stigma.
Based on the victim’s report, the Sub-Inspector of the Chirawa Police Station in Rajasthan noted that the offenses under Sections 498A, 406, and 323 of the IPC were identified, and an investigation was launched.
2. ISSUES RAISED:
- Is it possible for courts to use Section 438 of the Criminal Procedure Code, 1973 (“CrPC”) to issue anticipatory bail in relation to a formal complaint filed outside of their geographical jurisdiction?
- Is it in line with the criminal court system’s procedures to award Transit Anticipatory Bail or Interim Protection?
3. RATIO DECIDENDI/JUDGEMENT:
The Supreme Court thus upheld the freedom of High courts and Sessions Court to grant anticipatory bail even for the crimes committed outside of their territorial jurisdiction. It set forth requirements for transit anticipatory bail, focusing on jurisdictional issues, notice to the investigating officer, grounds for apprehending an interstate arrest, and the applicant’s incapacity to request bail in the state in which the first complaint is filed.
The degree and gravity of seriousness with respect to the apprehension for granting a transitory anticipatory bail would undergo a thorough evaluation by the judge awarding such release. Although in a restricted setting, the goal of exercising such authority is to stop arbitrary police action, safeguard individual liberties, and offer prompt access to justice. It is however a short-term, temporary safeguard until the accused applies for full-fledged anticipatory bail before the appropriate Sessions Court or the High Court.
The judiciary herein further made it plain that going to another state on bond without a valid reason is not permitted and also stressed upon the significance of protecting citizens’ rights, interpreting cases contextually, and avoiding unfair treatment of legitimate applications.
CRITICAL ANALYSIS:
Justice delayed is Justice denied- as aptly put has witnessed several instances which holds the phrase true of its very being thereby enfeebling our judicial system of what it symbolises. The question which then one ponders upon is ‘What actually is this Justice which aholds us to the society or state in the first place?’ It is a rather subjective term which has no predetermined omnipresent principle defining it because of the differing perspectives which exist in our society distinguishing what may be justice for one might not be true for another being in the similar circumstances. However, a coherent society calls for the same being the cornerstone of the social system which entangles and interwines individuals to each other.
The present case at hand deals with the question of a rather culminating concept of justice via transit anticipatory bail which in turn might call for constitutional endorsement because, as stated in Article 21 of the Constitution, both anticipatory and transit anticipatory bail are inextricably tied and interwined to individual liberty.
A further interpretation by the judiciary herein was with regards to Section 438 of CrPC, stating that an interpretation giving rise to an absolute ban on a Session or High Court’s jurisdiction to grant interim anticipatory bail for an offence committed outside of its territorial jurisdiction may cause an anomalous and unfair outcome for legitimate applicants who might be the victims of wrongful, malicious, or politically motivated prosecution. A claim was thereafter raised that such a narrow reading of the provision would compromise the fundamental rights to justice and personal liberty, which are recognized by the constitution and statutorily protected by the existence of jurisdiction with superior Courts. Constitutional Courts are required to interpret statutes in a way that upholds and advances fundamental constitutional principles while also taking the context into consideration which was seen as rather essential via this case and the same was advised to follow upon as well. This will involve a broader jurisdiction of Sessions Court and High Court to include all those judicatures of justice in the grant of anticipatory bail to lead a better way for promoting the personal liberty as guaranteed by Article 21 of the Indian Constitution than it would be to restrict it by reorganizing the way jurisdiction is exercised in anticipatory bail cases.
The Supreme Court of India overturned the contested orders from the Bengaluru Court, emphasizing that in order to avoid unjustified limitations under section 438, the court must specifically identify the offences covered by the order before granting anticipatory bail. For the next four weeks, the Court ordered that no coercive measures be used against the spouse. In order to make it easier for them to approach the Rajasthani court with the right jurisdiction and request anticipatory bail, a temporary reprieve was also granted to them.
To delve into its jurisprudential aspect, we come across the topsy turvy path treaded upon by judiciary wherein Bail is regarded as no less than a rule and principle inherent to individual autonomy on one hand but has seen considerable dispute with regards to the overall well being of Public and Society at large. This is what makes it rather significant to ensure a balance in the variations of reasoning, rationale and perception of judicial officers when deciding upon a case at hand. It can be termed as Realist School of Thought propounded by Oliver Wendell Holmes in Jurisprudence which later found its way and germinated into the concept of what we look at today as transit anticipatory bail. Realism has always been at war with the Idealist thought which makes it all hunky dori version of reality that fails to capture the intricacies of life and in turn that of law as well. This has gradually paved its way into the legal theories employed in practices to make it a rather beneficial procedural concept as evident from this subject matter wherein a bail plea undergoes a thorough scrutinizing before it actually ripens into an individual right.
What cannot be overlooked herein is that the said interpretation of judiciary in this year may be prone to misuse by individuals seeking this temporary or short term relief and it is still a long way ahead for our justice delivery mechanisms to outgrow such ordeals and strive to work for what it was established and the ideal for which every citizen is entitled to as known via several domains of knowledge every now and then.
CONCLUSION:
The ratio decidendi of the aforementioned case advocates an essential concept of “transit anticipatory bail” as a required legal innovation to handle the complexity arising from cross-jurisdictional arrests. It reached to this stage of judicial interpretation by beginning with the research on the word “transit’s” etymology, discovering that it comes from the Latin word “transitus,” which denotes movement from one location to another. The term “transit anticipatory bail” is not defined under the Code of Criminal Procedure, 1973, or any other Indian law, even though cases of it being granted date back to 1980. The threat of growing legal abuse with respect to this principle was also examined by the court and in response, the court ruled that in order to grant anticipatory bail, there must be a physical link or closeness between the accused and the court’s jurisdiction. In light of this, it was upheld that, the court must be very specific about the charge or offenses for which the order is applicable in case of granting the anticipatory bail. It shields people from unjustified repercussions while investigations are underway and prevents the abuse of the judicial system.
However, the application of Section 438 of the CrPC should not be subject to needless limitations and the court’s ruling in this case aimed at guaranteeing that justice is administered with consideration for the victim’s circumstances and shows a sophisticated knowledge of the dynamics involved in cases of cruelty against married women at the same time.
Author: Vidhi Kawrani (Nirma University)