Supreme Court Affirms Limited High Courts’ Authority to Grant Anticipatory Bail Across State Borders


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Published on: November 20, 2023 at 17:59 IST

The Supreme Court declared that High Courts and Sessions Courts possess the authority to grant anticipatory bail even when a First Information Report (FIR) is registered in a different state.

The Court emphasized the need to protect the fundamental right to life and personal liberty, allowing High Courts and Sessions Courts to provide limited anticipatory bail under Section 438 of the Criminal Procedure Code (CrPC) in the interest of justice.

To prevent potential abuse of this provision, the Supreme Court established specific conditions. Prior to granting limited anticipatory bail, the Investigating Officer and Public Prosecutor handling the FIR must be given notice.

The court retains discretion to grant interim anticipatory bail in suitable cases. The court’s order must explicitly state the reasons for anticipating inter-state arrest and the potential impact of interim anticipatory bail on the ongoing investigation.

The judgment clarified that the jurisdiction where the offense is cognized does not exclude the possibility of obtaining anticipatory bail through a state amendment to Section 438 of the CrPC.

The applicant seeking anticipatory bail must demonstrate an inability to seek relief from the court with territorial jurisdiction. Acceptable grounds for such relief include a credible and immediate threat to life, personal liberty, bodily harm, jurisdiction-related apprehensions, or impediments due to arbitrary factors, medical conditions, or disabilities.

The Supreme Court cautioned against widespread use of this power, emphasizing that extraterritorial anticipatory bail should be granted only in exceptional and compelling circumstances.

The court insisted that the denial of transit bail or interim protection, leading to the inability to apply for Section 438 bail, should cause irreparable and irreversible prejudice to the applicant.

Addressing the potential misuse of the legal process, the Supreme Court stressed the necessity of establishing a territorial nexus between the accused and the court’s jurisdiction where anticipatory bail is sought. This linkage could be based on factors such as residence, occupation, work, or profession.

The Court warned against forum shopping, where accused individuals might choose the most convenient court for seeking anticipatory bail, potentially undermining the concept of territorial jurisdiction under the CrPC.

The Supreme Court delivered this ruling in response to a Special Leave Petition challenging the judgment of a Sessions Judge in Bangalore.

The Sessions Judge had granted extraterritorial bail to the accused husband, prompting the petitioner to approach the Apex Court.

The Court concluded by setting aside the impugned order but granted a four-week reprieve, during which no coercive steps could be taken against the accused, allowing them to approach the jurisdictional court in Rajasthan for anticipatory bail.

The Sessions Court or High Court, if approached, was directed to expedite the decision on the application.

Case title: Priya Indoria v. State of Karnataka

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