Holding

A High Court or Court of Session may grant limited (transit) anticipatory bail for FIRs outside its territorial jurisdiction in exceptional cases, subject to procedural safeguards, and the ordinary place of trial in matrimonial cruelty can be the complainant's parental home.

Summary

The Supreme Court examined applications for anticipatory bail filed by the husband and his family in a matrimonial cruelty case where the FIR was lodged in Rajasthan but the bail applications were made in Karnataka. The Court considered whether a High Court or Court of Session can grant anticipatory bail for an FIR outside its territorial jurisdiction and whether limited "transit" anticipatory bail is permissible. It held that, in exceptional circumstances, courts may grant limited transit anticipatory bail to prevent irreparable prejudice, provided safeguards such as notice to the investigating officer and public prosecutor are observed. The Court also clarified that the ordinary place of inquiry and trial in matrimonial cruelty cases can include the complainant's parental home where the effects of cruelty are felt. Consequently, the Karnataka court's orders granting extra‑territorial anticipatory bail were set aside, and a four‑week transit bail was ordered to allow the accused to approach the jurisdictional court in Rajasthan. The decision emphasizes the balance between personal liberty, access to justice, and the proper administration of criminal law.

Issues considered

Whether the power under Section 438 CrPC to grant anticipatory bail can be exercised by a High Court or Court of Session with respect to an FIR registered outside its territorial jurisdiction.
Whether granting transit anticipatory bail or interim protection is consistent with the administration of criminal justice.
Whether the ordinary place of inquiry and trial under Section 177 CrPC includes the complainant‑wife's parental home in matrimonial cruelty cases.

Legislation cited

Code of Criminal Procedure, 1973s. 14, s. 156, s. 157, s. 167(2), s. 177, s. 178, s. 179, s. 41A, s. 438
Constitution of Indias. Article 14, s. Article 21, s. Article 39A
Indian Penal Code, 1860s. 323, s. 406, s. 498A

Subjects

anticipatory bailextra‑territorial jurisdictiontransit bailSection 438 CrPCaccess to justicepersonal libertymatrimonial crueltyFIR jurisdictionconstitutional lawArticle 21

Judgment

[2023] 15 S.C.R. 525 : 2023 INSC 1008

CASE DETAILS

PRIYA INDORIA
v.
STATE OF KARNATAKA AND ORS. ETC.
(Criminal Appeal No. 003549-003552/2023 of 2023)
NOVEMBER 20, 2023
[B. V. NAGARATHNA AND UJJAL BHUYAN, JJ.]
HEADNOTES
Issue for consideration: Whether the power of the High Court or the
Court of Session to grant anticipatory bail u/s 438 CrPC could be exercised
with respect to an FIR registered outside the territorial jurisdiction of the
said Court; and whether the practice of granting transit anticipatory bail or
interim protection to enable an applicant seeking anticipatory bail to make
an application u/s 438 CrPC before a Court of competent jurisdiction is
consistent with the administration of criminal justice.
Code of Criminal Procedure, 1973 – s. 438 – Extra-territorial
anticipatory bail – Power of the High Court or the Court of Session
to grant u/s 438 CrPC, if could be exercised with respect to an FIR
registered outside the territorial jurisdiction of the said Court:
Held: An interpretation giving rise to an absolute bar on the jurisdiction
of a Court of Session or a High Court to grant interim anticipatory bail
for an oﬀence committed outside the territorial conﬁnes of a High Court
or Court of Session may lead to an anomalous and unjust consequence
for bona ﬁde applicants who may be victims of wrongful, mala ﬁde or
politically motivated prosecution – In such circumstances, the Courts must
balance the interest of the accused in the context of the salutary principle
of access to justice which is a facet of Art. 21 of the Constitution as well as
a Directive Principle of State Policy-Art. 39(A) as also Art. 14 – 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 u/s 438 before a Court of competent jurisdiction would cause
irremediable and irreversible prejudice to the applicant – Having regard
525
526 SUPREME COURT REPORTS [2023] 15 S.C.R.

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 – This may also lead the accused to choose the
Court of his choice for seeking anticipatory bail – Thus, 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
relief. [Paras 26, 34, 37, 39, 40]
Code of Criminal Procedure, 1973 – s. 438 – Direction for grant
of bail to person apprehending arrest – Grant of transit anticipatory
bail or interim protection to enable an applicant seeking anticipatory
bail to make an application u/s 438 CrPC before a Court of competent
jurisdiction, if consistent with the administration of criminal justice:
Held: 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, 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 – Need for such a provision
is to secure the liberty of the individual concerned – Since anticipatory
bail as well as transit anticipatory bail are intrinsically linked to personal
liberty Art. 21 of the Constitution of India and since the concept of access
to justice is extended to such a situation and bearing in mind Art 14 thereof
it would be necessary to give a constitutional imprimatur to the evolving
provision of transit anticipatory bail – Otherwise, in a deserving case,
there is likelihood of denial of personal liberty as well as access to justice
for, by the time the person concerned approaches the Court of competent
jurisdiction to seek anticipatory bail, it may well be too late as he may be
arrested – 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 u/s 438 – This, would
result in miscarriage and travesty of justice, aggravating the adversity of
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 527
ETC.

the accused who is apprehending arrest and would be against the principles
of access to justice. [Para 45, 46]
Code of Criminal Procedure, 1973 – ss. 438, 177 – Ordinary
place of inquiry and trial, if would be inclusive of the place where the
complainant-wife resides after being separated from her husband:
Held: As per s. 177 especially in matrimonial cases alleging cruelty
and domestic violence by the wife, 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 – Adverse eﬀects on mental health of the wife even
while residing in her parental home on account of the acts committed in
the matrimonial home would amount to commission of cruelty within the
meaning of s. 498A at the parental home – At the place where the wife takes
shelter after leaving or being driven away from the matrimonial home on
account of acts of cruelty committed by the husband or his relatives, would,
also have jurisdiction to entertain a complaint – On facts, the complainant-
wife claims to have received death threats and harassment over the phone
even after her return to her parental home in Chirawa, Rajasthan the ordinary
place of trial may be Chirawa – By the impugned orders, the accused-
husband and his family members were granted extra-territorial anticipatory
bail without issuing notice to the investigating oﬃcer and public prosecutor
in Police Station, Rajasthan wherein the complainant had lodged the FIR –
Impugned orders set aside – Accused to approach the jurisdictional Court
in Chirawa for anticipatory bail. [Paras 48, 49]
Code of Criminal Procedure, 1973 – s. 438 – Grant of anticipatory
bail – Salient features – Stated. [Para 9.6]
Code of Criminal Procedure, 1973 – s. 438 – Grant of anticipatory
bail – Expression “the High Court” or “the Court of Session” –
Construction:
Held: On a reading of s. 438 it is not found that the expression “the
High Court” or “the Court of Session” is restricted vis-à-vis the local limits
or any particular territorial jurisdiction – However, this does not mean that
if an FIR is lodged in one State then the accused can approach the Court
in another State for seeking anticipatory bail – He can do so, if at the time
528 SUPREME COURT REPORTS [2023] 15 S.C.R.

of lodging of the FIR in any State, he is residing or is present there for a
legitimate purpose in any other State – It does not emerge that the expression
“the High Court” or “the Court of Session” must have reference only to the
place or territorial jurisdiction within which the FIR is lodged – If that was
the implication, the same would have been expressly evident in the Section
itself or by a necessary implication – Use of the word “the” before “High
Court” and “Court of Session” also does not mean that only the High Court
or the Court of Session, as the case may be, within whose jurisdiction the
FIR is ﬁled, is competent to exercise jurisdiction for the grant of transit
anticipatory bail. [Para 44]
Code of Criminal Procedure, 1973 – s. 438 – Expression ‘transit
anticipatory bail’ – Need and necessity for:
Held: Need and necessity for transit anticipatory bail has occasioned
because the police has been conferred power under the CrPC to pursue
an accused in other jurisdictions – 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 Art. 22 – Primary purpose of
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 – It
appears that from the requirement of transit remand, the necessity of
‘transit anticipatory bail’ has arisen, for aﬀected person cannot be without
a remedy. [Para 35]
Bail – Anticipatory Bail – Evolution of the safeguard – Stated.
[Para 10]
Bail – Pre-arrest bail – Position of law in United States of India,
United Kingdom, Kenya and India – Comparative legal study – Stated.
[Paras 19, 20]
Bail – Limited anticipatory bail – Grant of, by the High Court
or the Court of Session u/s 438 CrPC with respect to FIR registered
outside the territorial jurisdiction of the said Court – Conditions to be
fulﬁlled – Stated. [Para 36]
Constitution of India – Art. 21 – Right to life and liberty under –
Access to justice :
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 529
ETC.

Held: Art. 39A which deals with equal justice and free legal aid can
be construed to be a specie of Art 21 – Citizen must be provided a just
adjudicatory forum to agitate his grievance and seek adjudication of what
he may perceive as a breach of his right to the level of a fundamental right –
Adjudicatory forum supposed to be eﬀective in its functioning and just, fair
and objective in its approach, but it also must be conveniently approachable
and aﬀordable – Access to justice would, thus, be a constitutional value of
any signiﬁcance and utility only if the delivery of justice to the citizen is
speedy. [Para 20, 22, 23]
Interpretation of statutes – Penal statutes – Rule of statutory
interpretation:
Held: Penal statutes are to be construed strictly – When acts are to
be made penal and are to be visited with loss or impairment of life, liberty,
or property, the personal liberty requires clear and exact deﬁnition of the
oﬀence – Appropriate care must be taken to adopt an interpretation which
makes the textual interpretation match the contextual – Fundamental
right to personal liberty and access to justice, which are constitutionally
recognised and statutorily preserved, would be undermined through a
restrictive interpretation – While construing a statute, constitutional Courts
are obliged to render a contextually sensitive construction that preserves
and furthers core constitutional values – Criminal statutes such as the
CrPC are interpreted with rational regard to the aim and intention of the
legislature – Interpretation of all statutes should be favorable to personal
liberty subject to fair and eﬀective administration of criminal justice.
[Paras 25, 27, 30]
Words and phrases – Word ‘transit’ – Meaning of – Stated. [Para
35.1]
LIST OF CITATIONS AND OTHER REFERENCES
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) 6 SCC 64; Navinchandra Majithia vs. State of Maharashtra
[2000] 3 Suppl. SCR 82: (2000) 7 SCC 640; Raghubans Dubey vs. State
of Bihar (1967) 2 SCR 423; Dashrath Rupsingh Rathod vs. State of
Maharashtra [2014] 11 SCR 921: (2014) 9 SCC 129; Balchand Jain vs.
530 SUPREME COURT REPORTS [2023] 15 S.C.R.

State of M.P. [1977] 2 SCR 52: (1976) 4 SCC 572; Sushila Aggarwal vs.
NCT of Delhi [2020] 2 SCR 1: (2020) 5 SCC 1; Shri Gurbaksh Singh Sibbia
vs. State of Punjab [1980] 3 SCR 383: (1980) 2 SCC 565; Jamini Mullick
vs. Emperor (1909) ILR 36 Cal 174, Hidayat Ullah Khan vs. The Crown,
AIR 1949 Lah 77; Gurbaksh Singh Sibia vs. State of Punjab, 1977 SCC
OnLine P&H 157; Teesta Atul Setalvad vs. State of Maharashtra Special
Leave Petition (Criminal) No. 1770 of 2014; Joginder Kumar vs. State of
U.P., [1994] 3 SCR 661: (1994) 4 SCC 260; Anita Kushwaha vs. Pushap
Sudan [2016] 9 SCR 560: (2016) 8 SCC 509; Central Inland Water Transport
Corporation vs. Brojo Nath Ganguly [1986] 2 SCR 278: (1986) 3 SCC 156;
State of Bihar vs. Deokaran Nenshi [1973] 1 SCR 1004: (1972) 2 SCC 890;
Sujata Mukherjee (Smt.) vs. Prashant Kumar Mukherjee [1997] 3 SCR 1127:
(1997) 5 SCC 30; Y. Abraham Ajith vs. Inspector of Police, Chennai [2004]
3 Suppl. SCR 604: (2004) 8 SCC 100; Ramesh vs. State of T.N. [2005] 2
SCR 493: (2005) 3 SCC 507: ; Manish Ratan vs. State of M.P., [2006] 8
Suppl. SCR 226: (2007) 1 SCC 262; Rupali Devi vs. State of U.P., [2019]
6 SCR 577: (2019) 5 SCC 384; Re: Benod Ranjan Sinha 1981 SCC Online
Cal 102; L.R. Naidu (Dr.) vs. State of Karnataka, 1983 SCC OnLine Kar
206; N.K. Nayar vs. State of Maharashtra, 1985 Cri LJ 1887 – referred to.
In re: Sturman, 1984.604 F. Supp. 278. (F. E. Devine (1990); Regina
vs. Secretary of State for the Home Department, Ex Parte LeecH, (1994)
Q.B. 198; Coroline Kuthie Karanja vs. Director Public Prosecutions (2021)
eKLR – referred to.
Anticipatory Bail: An Indian Civil Liberties Innovation, International
Journal of Comparative and Applied Criminal Justice, 14:1-2, 107-114;
Maxwell, Treatise on Interpretation of Statutes (10 edn.), p 284; Concise
Oxford English Dictionary, 10 th Edition, Revised, Black’s Law Dictionary,
11 th Edition – referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos.3549-3552 of 2023.
From the Judgment and Order dated 07.07.2022 of the Court of LXXI
Addl. City Civil & Sessions Judge, Bengaluru City (CCH-72) in CRLM
Nos.3941, 3943, 3944 and 3945 of 2022.
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 531
ETC.

Appearances:
Vikramjit Banerjee, ASG, Tathagat Sharma, Siddhartha Sinha, Nring
Chamwidbo Zeliang, Shivam Singhania, Saransh Kumar, Prashant Rawat,
Advs. for the Amicus Curiae.
Kaustav Paul, Sr. Adv., Rishi Matoliya, H. D. Thanvi, Nikhil Kumar
Singh, Achal Singh Bule, Kshitij Bikaramia, Mahendra Singh Inda, Ms.
Sumati Sharma, Advs. for the Appellant.
Dr. Manish Singhvi, Sr. Adv., V. N. Raghupathy, M Bangaraswamy,
S Shashank Reddy, Ms. Shubhangi Agarwal, Apurv S., Sourav Roy,
Sandeep Kumar Jha, Vasudev Singh, Kaushal Sharma, Attarva Kotwal,
Ms. Anjana Sharma, Sukumar, Deepak Goel, Kumar Kartikay, Advs. for
the Respondents.

JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
NAGARATHNA, J.

Leave granted.

Bird’s Eye View of the Controversy:

2. We begin this Judgment by an illustration:

A person allegedly under intoxication beats another person with an
iron rod in the State of Goa. The victim of the attack is injured. The alleged
assailant travels to Rourkela, Odisha, where he is working in a factory.
Meanwhile, the family of the injured registered a First Information Report
(FIR) for the oﬀence of causing grievous hurt under Section 326 of the
Indian Penal Code (IPC) at the Bicholim Police Station, Goa. On coming
to know about the same and apprehending his arrest, the alleged assailant
ﬁles an application for anticipatory bail before the District and Sessions
Judge, Sundargarh, Odisha, having jurisdiction over Rourkela. Whether the
alleged assailant’s application is maintainable or not? Such a question has
come for consideration before this Court in the present appeal.
532 SUPREME COURT REPORTS [2023] 15 S.C.R.

Facts of the case:
2.1. The present appeals have been ﬁled by the complainant-wife,
against the orders dated 07.07.2022 passed by the learned Additional City
Civil and Sessions Judge Bengaluru City in Criminal Misc. No. 3941/2022,
3943/2022, 3944/2022 and 3945/2022. By the said orders, the learned
Additional City Civil and Sessions Judge Bengaluru City has granted
anticipatory bail to the accused-husband and his family namely, accused
Nos. 2,3 & 4 in FIR No. 43/2022 which alleged commission of oﬀences
under Sections 498A, 406 and 323 of the Indian Penal Code, 1860 (‘IPC’,
for short), registered by the complainant-wife at Chirawa Police Station,
District Jhunjhunu, Rajasthan.
2.2. In view of the above, we take note of the social reality of criminal
complaints relating to dowry harassment, cruelty and domestic violence
arising out of unsuccessful matrimonial relationships. With the increasing
migration of young people for marital and career prospects, supplemented
by the forces of economic liberalization, a signiﬁcant number of couples
hail from two diﬀerent States, with the corollary being that the matrimonial
home of a complainant-wife is located in a diﬀerent State from where her
parental home is located.
3. According to the complainant-wife (appellant herein), the facts
giving rise to the present appeal, in a nutshell as gathered from the material
on record are:
3.1. The complainant-wife got married to the accused-husband on
11.12.2020 and started living in Bengaluru.
3.2. On 09.11.2021, the accused-husband ﬁled a divorce petition M.C.
No. 5786/2021 under Section 13 of the Hindu Marriage Act, 1955 before
the Principal Judge, Family Court, Bengaluru, Karnataka. Notice was issued
in the divorce petition on 15.11.2021.
3.3. On 07.03.2022, the complainant-wife ﬁled Transfer Petition
No.590/22 before this Court to transfer the case from the Principal Judge,
Family Court, Bengaluru to Court of Additional District Judge, Chirawa,
Jhunjhunu, Rajasthan.
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 533
ETC. [B. V. NAGARATHNA, J.]

3.4. 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.
3.5. At the time of marriage, two younger siblings of the complainant-
wife were still unmarried. The father of the complainant-wife, despite being a
heart patient who had undergone Angioplasty, spent about Rs. 46,00,000/- on
the wedding and had met the dowry demands made by the accused-husband
and his family members being his father, mother and younger brother, i.e.,
accused Nos.2, 3 & 4.
3.6. That the complainant-wife was a victim of harassment, torture
and assault for the demand of dowry. The accused-husband and his family
claimed that they had been cheated because the complainant-wife’s father
had promised to spend one crore rupees for the marriage. The harassment
and torture continued from 11.12.2020 until 06.07.2021. For less than a year
of marriage that the couple spent together, the accused-husband perpetrated
cruelty upon her by frequently threatening to divorce her and get married
for the second time.
3.7. The accused-husband started threatening and abusing the
complainant-wife and stated that the complainant-wife was mentally and
physically incapable of intimate relationships. Additionally, he slapped the
complainant-wife about a month after the marriage and said that he was
not inclined for marriage and preferred to live a free life. He threatened the
complainant-wife that if she wanted to stay together, she would have to
fulﬁl the dowry demand.
3.8. The complainant-wife informed her in-laws, being accused Nos.
2, 3 and 4, about the refusal of the accused-husband to consummate the
marriage and the physical assault committed on her. Allegedly, her in-laws
dismissed her by saying that it was not necessary to have a relationship
with the husband and as such, being a husband, he had the right to beat her.
3.9. Deeply agonized by this experience, a demand regarding purchase
of a scooter for the accused-husband was met. Rs.1,01,326/- was to be paid
online from complainant-wife’s mother’s bank account on 12.02.2021.
534 SUPREME COURT REPORTS [2023] 15 S.C.R.

3.10. Thereafter, the accused-husband started demanding a car, but
the demand could not be fulﬁlled. 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 complainant-wife’s father
begged the accused-husband to take back his daughter, but the accused-
husband refused.
3.11. Thereafter, on 11.06.2021, the complainant-wife’s father was
forced to bring the complainant-wife back to Chirawa.
3.12. It was averred that goods and valuables worth Rs. 30,00,000/-
were still in possession of the accused-husband and his family. The
complainant-wife was continuously threatened with death by the accused-
husband and his family even when she was in her paternal home in Chirawa.
When the complainant-wife came to Chirawa, the accused-husband through
internet call and video, threatened to kill her if she came to Bengaluru and
kept saying all the time that if she came to Bengaluru, he would get her
killed by goons and her dead body would also not be known.
3.13. The complainant-wife refused to undergo a medical test and
noted that at the time she was thrown out of the accused-husband’s house,
she had shown light blue marks near the neck and shoulder to her parents
but being hopeful of a change in the attitude of the husband, and aﬀected
by social stigma, she did not ﬁle any report.
3.14. 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.
We reiterate that the aforesaid details are as narrated by the complainant
and are not our inferences of facts of the case.
Impugned Orders:
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) by ﬁling CRL. MISC. No.
3941/2022, CRL.MISC. No. 3943/2022, CRL. MISC. No. 3944/2022 and
CRL. MISC. No. 3945/2022 before the Additional City Civil and Sessions
Judge, Bengaluru City.
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 535
ETC. [B. V. NAGARATHNA, J.]

4. The Additional City Civil and Sessions Judge, Bengaluru City,
on 07.07.2022, allowed the applications of anticipatory bail made by the
accused-husband and his family members, accused Nos. 2, 3 & 4.
4.1. 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.
4.2. The learned Judge noted that the Investigating Officer had
commenced the investigation, conducted mahazar, recorded the statement of
witnesses and completed a major part of the investigation. It was reasoned
that the involvement of the accused-husband and his family members, being
accused Nos. 2, 3 and 4, was yet to be proved. The learned Judge further
reasoned that since the alleged oﬀences were not punishable with death or
imprisonment for life and are to be tried before the Magistrate, there was
absolutely no reason to deny the beneﬁt of anticipatory bail.
4.3. When the police of Chirawa called upon the accused-husband and
his family members, accused Nos. 2, 3 & 4, it was realised that the learned
Sessions Judge, Bengaluru, had granted them anticipatory bail. This was
conﬁrmed by the complainant-wife when she checked the Court’s website.
4.4. On 09.12.2022, this Court allowed complainant-wife’s Transfer
Petition No.590/22 and transferred the M.C. No. 5786/2021 from the
Principal Judge, Family Court, Bengaluru, to the Court of Additional District
Judge, Chirawa, Jhunjhunu, Rajasthan.
5. 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.
6. Thereafter, the present Special Leave to Appeal came to be ﬁled and
notice was issued by this Court on 17.03.2023. On 07.07.2023, this Court
requested learned Additional Solicitor General Sri Vikramjit Banerjee to
assist the Court as an amicus curiae, having regard to the ramiﬁcations that
would arise in the context of Section 438 of CrPC and the jurisdiction of
the concerned Sessions Court or High Court to grant pre-arrest bail, when
536 SUPREME COURT REPORTS [2023] 15 S.C.R.

the FIR is not registered within the territorial jurisdiction of a particular
district or State but in a diﬀerent State.
Submissions:
7. We have heard Sri Vikramjeet Banerjee, Additional Solicitor
General and learned amicus, Sri Kaustav Paul, learned senior counsel for
the complainant-wife, Dr. Manish Singhvi, learned Additional Advocate
General for the State of Rajasthan, Sri V.N. Raghupathy, learned counsel
for the State of Karnataka and Smt. Anjana Sharma, learned counsel for the
accused-husband. We have also perused the material on record.
7.1. Learned senior counsel Sri Banerjee, while assisting this Court
as an amicus, submitted as under:
i. Section 438 of CrPC has only used the term ‘High Court or
the Court of Session’, as the case may be’ but has not speciﬁed
whether such a ‘High Court or the Court of Session’ has to be
the same Court which can take cognizance of the matter or can
be any ‘High Court or Court of Session’ across the country.
Therefore, there exists limited legislative guidance about the
power of a Court to grant anticipatory bail for an oﬀence that
is registered outside its territorial jurisdiction, in other words,
whether ‘extra-territorial anticipatory bail’ can be granted by a
High Court or Court of Session to a person apprehending arrest.
ii. Elaborating on the divergent approaches of various High Courts
in the country regarding the grant of ‘extra-territorial anticipatory
bail’, learned amicus submitted that the Courts have evolved
the ‘transit anticipatory bail’ approach to provide an equitable
and interim relief enabling an accused travelling a residing
in a diﬀerent State to seek anticipatory bail. Learned amicus
clariﬁed that anticipatory bail and ‘transit anticipatory bail’ are
diﬀerent, as the former may or may not be restricted to a time
period, whereas the latter is always granted for a speciﬁc time
period, until an applicant can make an application for anticipatory
bail before a Court that can take ‘cognizance’ of the oﬀence. It
was further submitted that this Court had adopted the ‘transit
anticipatory bail’ approach in State of Assam vs. Brojen Gogol
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 537
ETC. [B. V. NAGARATHNA, J.]

(Dr), (1998) 1 SCC 397 (Brojen Gogol) and Amar Nath Neogi
vs. State of Jharkhand, (2018) 11 SCC 797.
iii. Learned amicus further submitted that this Court in Nathu
Singh vs. State of U.P., (2021) 6 SCC 64 (Nathu Singh) had
emphasized a liberal approach to the grant of anticipatory bail
in view of the serious impact that the unfair denial of the same
can have on the right to life and liberty under Article 21.
iv. Referring to the judgement of this Court in Navinchandra
Majithia vs. State of Maharashtra, (2000) 7 SCC 640, learned
amicus apprised this Court of an alternative approach that is
based on the ‘cause of action’ theory in criminal law. In view of
the facts of the present case, it was submitted 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.
7.2. Learned senior counsel Sri Paul appearing for the complainant-
wife/appellant herein submitted as follows:
i. The right to fair and impartial investigation and trial of an oﬀence
is a fundamental right not only of the accused but also of the
complainant.
ii. 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.
iii. The complainant-wife could not oppose the bail petition and
the jurisdictional prosecutor from Chirawa, Rajasthan was also
absent during the hearing. That only the Public Prosecutor of
Bengaluru was present at the time of the hearing of the bail
petition seeking anticipatory bail. The said prosecutor neither had
the case diary of the investigation with him nor any assistance
from the area police station where the F.I.R had been lodged.
Hence, the impugned orders may be set aside.
538 SUPREME COURT REPORTS [2023] 15 S.C.R.

7.3. Learned senior counsel for the State of Rajasthan Dr. Manish
Singhvi submitted as under:
i. The existence of territorial jurisdiction is the undergrid of
the institution of any case before a Court of law. The concept
of territorial jurisdiction is of cardinal significance to the
administration of justice. More speciﬁcally, both Chapter XIII
of the CrPC and the existing/general criminal jurisprudence
recognize that cognizance of an oﬀence and not the oﬀender
is taken. That this Court in Raghubans Dubey vs. State of
Bihar (1967) 2 SCR 423 (Raghubans Dubey) held that the
Magistrate takes cognizance of an oﬀence and not the oﬀender.
That territorial jurisdiction assumes paramount importance
as the oﬀender, unlike the defendant in a civil suit instituted
as per the Civil Procedure Code, 1908, has no role to play as
far as the conferment of jurisdiction of a Court is concerned.
That, in Dashrath Rupsingh Rathod vs. State of Maharashtra,
(2014) 9 SCC 129, it was observed that Section 177 of the
CrPC postulated that every oﬀence shall ordinarily be inquired
into and tried by a Court within whose local jurisdiction it was
committed.
ii. Elaborating on the scheme of the CrPC, Dr. Singhvi submitted
that Chapter II of the CrPC distributes adjudicatory duties
amongst Magistrates and Courts as per territorial jurisdiction.
Section 14 of the CrPC speciﬁcally determines the jurisdiction
of local Magistrate(s). The provisions granting power to take
cognizance (Section 157) or power to investigate (Section 156),
are in accordance with the concept of ‘ordinary place of inquiry
and trial,’ as stated in Chapter XIII of the CrPC.
iii. Therefore, 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 language of Section 167(2) mandating a judicial
order for the detention of an accused beyond 24 hours, mentions
‘nearest Magistrate’ and not Magistrate of competent jurisdiction.
The nearest Magistrate, while possessing the power to extend
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 539
ETC. [B. V. NAGARATHNA, J.]

custody up to 15 days, does not have the power to grant bail
as the same power is reserved only for the Magistrate who is
competent to commit the case for trial. In this regard, learned
senior counsel submitted 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. It was further contended that a
proper construction of the word ‘the’ preﬁxed to both High Court
and Sessions Court in the text of Section 438 of CrPC would
mean the High Court or the Sessions Court having the competent
jurisdiction. It was contended that the word ‘the’ cannot be given
so liberal a construction that it becomes indistinguishable from
‘any.’
iv. Learned senior counsel apprised this Court 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. It was further pointed out that
practical diﬃculties such as forum shopping may arise from the
treatment of anticipatory bail as analogous to a fundamental
right. 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. This may lead to
a situation where the High Court or the Court of Session would
not have the advantage of the stance of the investigating agency
or the assistance of the public prosecutor while adjudicating
applications for grant of anticipatory bail. In view thereof, it was
submitted that the High Court judgements, InRe: Benod Ranjan
Sinha, 1981 SCC Online Cal 102 (InRe: Benod Ranjan Sinha),
L.R. Naidu (Dr.) vs. State of Karnataka, 1983 SCC OnLine Kar
206 (L.R. Naidu) and N.K. Nayar vs. State of Maharashtra, 1985
Cri LJ 1887 (N.K. Nayar), permitting the grant of anticipatory
bail for an oﬀence committed outside their jurisdiction, should
be set aside. To buttress his contention, learned senior counsel
submitted that the Justice V.S. Malimath Committee Report on
Reforms in Criminal Justice System, in section 7.33, page 121,
had proposed that the provision regarding anticipatory bail may
540 SUPREME COURT REPORTS [2023] 15 S.C.R.

be retained subject to two conditions: that the Court would hear
the Public Prosecutor; and that the petition for anticipatory bail
should be heard only by the Court of competent jurisdiction.
v. As an alternative form of relief to persons resident in a particular
State but apprehending arrest by the police in another State,
learned senior counsel relied upon judgements of this Court in
Balchand Jain vs. State of M.P., (1976) 4 SCC 572 (Balchand
Jain) and Sushila Aggarwal vs. NCT of Delhi, (2020) 5 SCC 1
(Sushila Aggarwal), which enunciated the approach of ‘transit
anticipatory bail’ and ‘interim protection’ that balanced the
right to life and personal liberty enshrined in Article 21 and the
right to freedom of movement under Article 19(1)(d) with the
fundamental scheme of administration of criminal justice, as
prescribed in the CrPC. It was submitted that in an age where
the movement of a citizen is frequent and fast, an oﬀender may
apprehend arrest even with respect to a statement made in a
place of residence in one State, but the oﬀended person may be
residing in another State.
vi. Learned senior counsel further contended 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.
However, in order to prevent forum shopping, certain safeguards
were also suggested for availing grant of interim protection as
follows:
a. The person must show some residence proof to establish
that he/she had been residing in the area in which the interim
protection is sought;
b. If the person is seeking interim protection apart from his/
her normal place of residence, he/she must state the reasons
for doing so and also disclose the nature of apprehension
of arrest in the area wherein he/she does not reside;
c. The interim protection should not exceed a period of
fourteen days under normal circumstances;
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 541
ETC. [B. V. NAGARATHNA, J.]

d. The concerned public prosecutor of the Court wherein
interim application is moved may be informed in advance
about the ﬁling of the interim protection application. The
public prosecutor after looking at the nature of the interim
protection application, may contact the concerned police
station and seek information about the stage and nature of
the investigation of the crime committed;
e. The limited duration of the interim protection to secure the
liberty of the individual from arrest in an alleged frivolous
case would also ensure that the regular anticipatory bail is
only granted by a Court of competent jurisdiction; and
f. Interim protection should not be granted unless the
requirements enumerated under Section 438 of CrPC are
satisﬁed.
7.4. Learned counsel for the State of Karnataka submitted that having
regard to the relevant judicial precedents on Section 438 of CrPC, an
appropriate order may be made in this case.
7.5. Smt. Anjana Sharma, learned counsel for the accused-husband
submitted as under:
i. The complainant-wife had ﬁled a frivolous FIR against him and
his family members based on false allegations and accusations. It
is alleged that the sole objective of complainant-wife is to extort
money as the accused-husband had refused to pay an amount of
Rs. 50,00,000/-.
ii. That the anticipatory bail applications had been ﬁled for securing
protection from immediate arrest as the liberty of the petitioner
was at stake and instant protection was necessary to protect his
fundamental rights.
iii. That the apprehension of arrest was during the subsistence of
the COVID-19 pandemic and he was under continuous pressure
and threat of being arrested. The accused-husband being the
only earning member having a younger brother and an elderly
ailing father, was compelled to seek protection of his life and
542 SUPREME COURT REPORTS [2023] 15 S.C.R.

limb because the complainant-wife’s father had inﬂuential local
contacts in the place where the FIR was registered, i.e., Chirawa,
Rajasthan. There was a reasonable apprehension of his arrest,
which was the guiding factor in ﬁling the application before the
Bengaluru Court.
iv. Learned counsel of the accused-husband also questioned the bona
ﬁdes of the complainant-wife by relying upon the delay in ﬁling
the present petition. It was further contended 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.
Points for Consideration:
8. Having heard learned amicus and senior counsel and counsel for the
respective parties and on perusal of the material on record, the following
points would emerge for our consideration:
i. Whether the power of the High Court or the Court of Session to
grant anticipatory bail under Section 438 of the CrPC could be
exercised with respect to an FIR registered outside the territorial
jurisdiction of the said Court?
ii. 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 of the CrPC
before a Court of competent jurisdiction is consistent with the
administration of criminal justice?
iii. What order?
The aforesaid questions shall be considered together as they are
intertwined.
Legal Framework:
9. Before discussing the points for consideration in the present appeal,
the relevant provisions of the CrPC are exposited as under:
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 543
ETC. [B. V. NAGARATHNA, J.]

9.1. Section 2(e) of the CrPC deﬁnes “High Court” to mean ‘the
High Court for that State,’ in relation to any State. In relation to the Union
Territory, it is deﬁned as that High Court for a State to which the Union
Territory’s jurisdiction has been extended. In case of any other Union
territory, it means the highest Court of criminal appeal for that territory
other than the Supreme Court of India.
9.2. Section 2(j) deﬁnes “local jurisdiction”, in relation to a Court
or Magistrate to mean the local area within which the Court or Magistrate
may exercise its powers under the CrPC. Section 14 of the CrPC states that
the local jurisdiction of a magistrate shall be conﬁned to the limits deﬁned
by the Chief Judicial Magistrate. Section 9 of the CrPC mandates that the
State Government shall establish a Court of Session to be presided over by
a judge appointed by the High Court.
9.3. A Court of competent jurisdiction is referred to in Section 41A
of the CrPC wherein a police oﬃcer is empowered to arrest a person who
fails to comply with a notice for arrest subject to the orders of such Court.
This is a Court that is competent to try the case. Section 167(2) empowers
the nearest Magistrate to authorize the custody of an accused for a period
not exceeding 15 days, once he is produced before him, whether it is a
Court of competent jurisdiction to try the case or not. If the Magistrate has
no jurisdiction to try the case or commit it for trial, and considers further
detention unnecessary, he may order the accused to be forwarded to a
Magistrate having such jurisdiction. Section 156 further postulates that any
oﬃcer in-charge of a police station may investigate any cognizable case
which a Court having jurisdiction over the local area within the limits of
such station would have power to inquire into or try under the provisions
of Chapter XIII.
9.4. Section 177 in Chapter XIII of the CrPC mandates that every
oﬀence shall ordinarily be inquired into and tried by a Court within whose
local jurisdiction it was committed. In case of uncertainty or ambiguity
regarding the local areas where an oﬀence is committed, Section 178
postulates that it may be inquired into or tried by a Court having jurisdiction
over any of such local areas where the oﬀence, or part thereof, may have
been committed. Section 179 states that when the consequence of the
oﬀending act ensues, it may be inquired into or tried by a Court within
544 SUPREME COURT REPORTS [2023] 15 S.C.R.

whose local jurisdiction such thing has been done or such consequence
has ensued.
9.5. Having regard of the aforesaid statutory framework, it would be
apposite to distillate the core aspects of Section 438 of CrPC pertaining to
grant of anticipatory bail which reads as under:
“438. Direction for grant of bail to person apprehending arrest.-
(1) Where any person has reason to believe that he may be arrested
on accusation of having committed a non-bailable oﬀence, he may
apply to the High Court or the Court of Session for a direction under
this section that in the event of such arrest he shall be released on
bail; and that Court may, after taking into consideration, inter-alia,
the following factors, namely:—
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including the fact as to whether
he has previously undergone imprisonment on conviction by a
Court in respect of any cognizable oﬀence;
(iii) the possibility of the applicant to ﬂee from justice; and
(iv) where the accusation has been made with the object of
injuring or humiliating the applicant by having him so arrested,
either reject the application forthwith or issue an interim order for the
grant of anticipatory bail;
Provided that, where the High Court or, as the case may be, the
Court of Session, has not passed any interim order under this sub-
section or has rejected the application for grant of anticipatory bail, it
shall be open to an oﬃcer in-charge of a police station to arrest, without
warrant the applicant on the basis of the accusation apprehended in
such application.
(1A) Where the Court grants an interim order under sub-section
(1), it shall forthwith cause a notice being not less than seven days
notice, together with a copy of such order to be served on the Public
Prosecutor and the Superintendent of Police, with a view to give the
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 545
ETC. [B. V. NAGARATHNA, J.]

Public Prosecutor a reasonable opportunity of being heard when the
application shall be ﬁnally heard by the Court.
(1B) The presence of the applicant seeking anticipatory bail shall be
obligatory at the time of ﬁnal hearing of the application and passing of
ﬁnal order by the Court, if on an application made to it by the Public
Prosecutor, the Court considers such presence necessary in the interest
of justice.
(2) When the High Court or the Court of Session makes a direction
under sub-section (1), it may include such conditions in such directions
in the light of the facts of the particular case, as it may thinks ﬁt,
including—
(i) a condition that the person shall make himself available for
interrogation by a police oﬃcer as and when required;
(ii) a condition that the person shall not, directly or indirectly,
make any inducement, threat or promise to any person acquainted
with the facts of the case so as to dissuade him from disclosing
such facts to the Court or to any police oﬃcer;
(iii) a condition that the person shall not leave India without the
previous permission of the Court;
(iv) such other condition as may be imposed under sub-section
(3) of section 437, as if the bail were granted under that section.
(3) If such person is thereafter arrested without warrant by an oﬃcer
in charge of a police station on such accusation, and is prepared either
at the time of arrest or at any time while in the custody of such oﬃcer
to give bail, he shall be released on bail, and if a Magistrate taking
cognizance of such oﬀence decides that a warrant should issue in the
ﬁrst instance against that person, he shall issue a bailable warrant in
conformity with the direction of the Court under Sub-Section (1).
(4) Nothing in this section shall apply to any case involving the arrest
of any person on accusation of having committed an oﬀence under
sub-section (3) of section 376 or section 376AB or section 376DA or
section 376DB of the Indian Penal Code (45 of 1860).”
546 SUPREME COURT REPORTS [2023] 15 S.C.R.

9.6 The salient features of Section 438 of CrPC can be culled out as
under:
i. It confers a statutory right upon any person who has a reason to
believe that he may be arrested in relation to the commission of
a non-bailable oﬀence.
ii. The statutory right consists of the right to apply before the High
Court or the Court of Session for a direction that in the event of
such arrest, he shall be released on bail.
iii. The Parliament has provided ample legislative guidance on the
factors that may guide the High Court or the Court of Session
while considering the application for grant of an anticipatory
bail.
iv. The substantive factors consist of the nature and gravity of the
accusation, the criminal antecedents of the applicant, the risk
of the applicant absconding from justice or not cooperating
with the criminal justice administration and the possibility of
an accusation made in bad faith with the aim of injuring or
humiliating the applicant.
v. In addition to the aforementioned substantive factors guiding
the exercise of judicial discretion, Section 438 of CrPC engrafts
certain procedural requirements. The High Court or the Court
of Session may grant an interim order under Section 438(1) of
CrPC in case the facts and averments in the application satisfy
the factors laid down. However, the proviso to Section 438(1) of
CrPC provides that if such an interim order is denied, the oﬃcer
in-charge of a police station is at liberty to arrest the applicant
without warrant. Even if the interim order is made in favour of
the applicant, the High Court or the Court of Session is mandated
under Section 438 (1A) of CrPC to cause a notice of not less than
seven days along with a copy of the interim order to be served
on the Public Prosecutor and the Superintendent of Police, with
a view to give the Public Prosecutor a reasonable opportunity of
being heard when the application is ﬁnally heard by the Court.
The Court is also empowered under Section 438 (1B) of CrPC to
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 547
ETC. [B. V. NAGARATHNA, J.]

allow the Public Prosecutor’s application to make the presence
of the applicant seeking anticipatory bail obligatory at the time
of ﬁnal hearing, if the Court deems such presence necessary in
the interest of justice.
vi. The High Court or the Court of Session, under Section 438(2)
of CrPC, is further empowered to pass any such conditions in
light of the facts of a particular case, including
a) A condition that the person shall make himself available
for interrogation by a police oﬃcer as and when required;
b) a condition that the person shall not, directly or indirectly,
make any inducement, threat or promise to any person
acquainted with the facts of the case so as to dissuade him
from disclosing such facts to the Court or to any police
oﬃcer;
c) a condition that the person shall not leave India without the
previous permission of the Court;
d) such other condition as may be imposed under Sub-Section
(3) of section 437, as if the bail is being granted under that
Section.
vii. Section 438(3) states that if such a person is thereafter arrested
without warrant by an oﬃcer in charge of a police station on
an accusation, and is prepared either at the time of arrest or at
any time while in the custody of such oﬃcer to give bail, he is
entitled to be released on bail. If a Magistrate taking cognizance
of an oﬀence decides that a warrant should be issued in the ﬁrst
instance against that person, he is empowered to issue a bailable
warrant in conformity with the direction of the Court under
Section 438(1).
viii. The Parliament has inserted clause (4) to Section 438 of CrPC
vide the Criminal Law (Amendment) Act, 2018, thereby
stipulating that the remedy under Section 438 of CrPC cannot
be resorted to by any person accused of having committed an
oﬀence under Sections 376(3), 376-AB, 376-DA or 376-DB of
the IPC.
548 SUPREME COURT REPORTS [2023] 15 S.C.R.

ix. The State Legislatures of Maharashtra, Odisha, Uttar Pradesh and
West Bengal have enacted State amendments to Section 438 of
CrPC.
Evolution of the Safeguard of Anticipatory Bail:
10. In Shri Gurbaksh Singh Sibbia vs. State of Punjab, (1980) 2
SCC 565 (Gurbaksh Singh Sibbia), a Constitution Bench of this Court
speaking through Chandrachud, C.J., observed that society has a vital stake
in preserving personal liberty as well as investigational powers of the police
and 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 CrPC was the focus of the
said case while dealing with the historical background of the said provision.
10.1. The question of the grant of pre-arrest or anticipatory bail fell
for consideration in the era when the Code of Criminal Procedure, 1898
was in vogue and the grant of such bail was governed by Sections 497
and 498 of the erstwhile Criminal Procedure Code. In Jamini Mullick vs.
Emperor, (1909) ILR 36 Cal 174, the Calcutta High Court considered a
case where the Presidency Magistrate had issued warrants for the arrest
of certain persons as suspects in a murder case. The deceased had been
found lying dead at night on the footpath and while at the inquest certain
unknown persons were suspected, the Magistrate issued warrants when
evidence casting suspicion on four individuals was produced. Therefore,
the suspected individuals petitioned the Calcutta High Court for grant of
bail. The Division Bench of Justices Mitra and Coxe granted pre-arrest bail
to the suspected individuals. The judgment was prefaced by remarking that
ordinarily the Court did not grant bail in cases of that kind, but emphasised
on Section 498 of the erstwhile Criminal Procedure Code to hold that the
High Court could exercise revisionary jurisdiction and grant bail to any
person. It was noted that the yardstick for the grant of relief of bail was
whether there existed reasonable grounds to believe that the accused were
guilty of the oﬀence. It was underlined that it was within the Magistrate’s
jurisdiction to release the accused persons on bail but since the Magistrate
did not consider the inconsistencies in the evidence produced to implicate
four diﬀerent accused for the same crime, the High Court could correct the
Magistrate’s failure to exercise his jurisdiction.
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 549
ETC. [B. V. NAGARATHNA, J.]

10.2. The decision of the Calcutta High Court was followed by the Full
Bench of the Lahore High Court in Hidayat Ullah Khan vs. The Crown,
AIR 1949 Lah 77 wherein the petitioners being apprehensive of institution of
criminal proceedings had outlined reasons for the apprehension and sought
pre-arrest bail till the disposal of the trial. The petitioners had averred that
such arrest would amount to victimization, and would be a cause of disgrace
and dishonour to them. Justice Cornelius underlined that the proposed
prosecution was not in good faith and that one of the petitioners was suﬀering
from certain illnesses. The Crown had challenged the competence of the
High Court to grant bail in anticipation of arrest, and that had occasioned
the reference of the question from the Single Judge to the Full Bench. The
Full Bench framed the question as under:
“Whether the High Court can grant any relief, and if so what, to a
person seeking an order for bail, in anticipation of his arrest for an
oﬀence?”
10.3. The Full Bench held that the High Court had power under
Section 498 of the erstwhile Code of Criminal Procedure Code to make
an order that a person who is suspected of an oﬀence for which he may
he arrested by a police-oﬃcer or a Court, shall be admitted to bail. The
Full Bench laid emphasis on the distinction between the jurisdiction of the
police oﬃcer or Magistrate under Section 497 of the erstwhile Criminal
Procedure Code ‘to release on bail’ and that of the High Court under
Section 498 of the erstwhile Criminal Procedure Code, to ‘direct that any
person be admitted to bail.’ The Full Bench reasoned that the distinct use
of a wide expression signiﬁed that the High Court’s power includes not
merely a power to revise the exercise of discretion by police-oﬃcers and
Courts of ﬁrst instance where bail has been refused, but also include clearly
a power in the High Court to grant bail to persons to whom the police
and the Courts of ﬁrst instance are not permitted by S. 497 to grant bail,
including those persons who are not in custody. The Full Bench struck a
cautious note that ‘such cases would necessarily be extremely rare, and
by its very nature, the power to interfere with the discretion of an oﬃcial
such as a police-oﬃcer exercising statutory powers perhaps at some remote
place, at the very earliest stages of an investigation, would require to be
exercised with the very greatest care.’ The Full Bench held that the Court
550 SUPREME COURT REPORTS [2023] 15 S.C.R.

needs to be satisﬁed that if it stayed its hands until the police-oﬃcer had
himself exercised his discretion in the matter and refused, upon arrest, to
grant bail, a grave or irreparable wrong or injustice might result, while at
the same time preserving the interest of justice in so far as they related to
the charge against such an accused person.
10.4. It is observed that the CrPC, 1898 did not contain any speciﬁc
provision corresponding to the present Section 438 of CrPC. Under the old
Code, there was a sharp diﬀerence of opinion amongst the various High
Courts on the question of whether Courts had the inherent power to pass
an order of bail in anticipation of arrest, the preponderance of view being
that it did not have such power.
10.5. The concept of ‘anticipatory bail’ was clearly explicated vide the
41st Law Commission Report in the year 1969, whereby the Law Commission
observed as such:
“39.9. The suggestion for directing the release of a person on bail prior
to his arrest (commonly known as ‘anticipatory bail’) was carefully
considered by us. Though there is a conﬂict of judicial opinion about
the power of a Court to grant anticipatory bail, the majority view is
that there is no such power under the existing provisions of the Code.
The necessity for granting anticipatory bail arises mainly because
sometimes inﬂuential persons try to implicate their rivals in false
causes for the purpose of disgracing them or for other purposes by
getting them detained in jail for some days. In recent times, with
the accentuation of political rivalry, this tendency is showing signs
of steady increase. Apart from false cases, where there are reasonable
grounds for holding that a person accused of an oﬀence is not likely to
abscond, or otherwise misuse his liberty while on bail, there seems no
justiﬁcation to require him ﬁrst to submit to custody, remain in prison
for some days and then apply for bail.
We recommend the acceptance of this suggestion. We are further
of the view that this special power should be conferred only on the
High Court and the Court of Session, and that the order should take
eﬀect at the time of arrest or thereafter.”
(emphasis added by us)
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 551
ETC. [B. V. NAGARATHNA, J.]

10.6. Thereafter, the 48th Law Commission of India Report, 1972
titled ‘Some questions under the Code of Criminal Procedure Bill, 1970’
discussed the legislative proposal for inclusion of a provision for the grant
of anticipatory bail. The Law Commission termed the same to be a ‘useful
addition’ while adding a caveat that it ought to be exercised only in very
exceptional cases. The Commission opined that the initial order should only
be an interim order. That reasons for grant of the relief must be recorded
and the Court ought to be satisﬁed that the direction is necessary in the
interest of justice. The Law Commission also expressed a view that it was
imperative that the ﬁnal order of grant of anticipatory bail should only be
made after notice to the Public Prosecutor so as to prevent the abuse of the
process of law at the ‘instance of unscrupulous petitioners.’
10.7. Observing that the crimes, the criminals and even the
complainants can occasionally possess extraordinary features, in Gurbaksh
Singh Sibbia, it was stated that “when the even ﬂow of life becomes turbid,
the police can be called upon to inquire into charges arising out of political
antagonism”. The powerful processes of criminal law can then be perverted
for achieving extraneous ends. Attendant upon such investigations, when
the police are not free agents within their sphere of duty, is a great amount
of inconvenience, harassment and humiliation that can even take the form
of the parading of a respectable person in handcuﬀs, apparently on way to
a Court of justice. The foul deed is done when an adversary is exposed to
social ridicule and obloquy, no matter when and whether a conviction is
secured or is at all possible. It is in order to meet such situations, though
not limited to these contingencies, that the power to grant anticipatory bail
was introduced into the Code of 1973.
10.8. Despite the inclusion of the provision for anticipatory bail
in the CrPC after the acceptance of the aforesaid recommendation, the
expression “anticipatory bail” remained undeﬁned in the CrPC. This
Court in Balchand Jain observed that “anticipatory bail” means “bail in
anticipation of arrest.” This Court has exposited that an application for
anticipatory bail could be made by the accused either at a stage before an
FIR is ﬁled or at a stage when an FIR is registered but the charge sheet
has not been ﬁled, and the investigation is underway. Alternatively, it can
be moved after the completion of investigation. The stage of investigation
552 SUPREME COURT REPORTS [2023] 15 S.C.R.

has a bearing on the conditions to be imposed while granting the relief
of anticipatory bail.
10.9. A crucial diﬀerence between the pre-arrest bail order under
Section 438 of CrPC and the bail order under Sections 437 and 439 of CrPC
is the stages at which the bail order is passed.
11. Greater clarity on the contours of judicial discretion in the grant
of pre-arrest bail emerged out of the judgement of the Full Bench of the
Punjab and Haryana High Court in Gurbaksh Singh Sibia vs. State of
Punjab, 1977 SCC OnLine P&H 157. The Full Bench of the Punjab and
Haryana High Court had rejected the application for bail while furnishing
the reasons that the power under Section 438 of CrPC is of an extraordinary
character and must be exercised sparingly in exceptional cases. The said
judgment was carried in appeal before this Court. Thereafter, the law on
anticipatory bail was further crystallized by the Constitution Bench of this
Court in Gurbaksh Singh Sibbia, where it disagreed with the reasoning of
the Full Bench of Punjab and Haryana High Court.
11.1. It was observed that since the denial of bail amounts to
deprivation of personal liberty, the Court should lean against the imposition
of unnecessary restrictions on the scope of Section 438 of CrPC, especially
when not imposed by the legislature in terms of the Section. It was observed
that Section 438 of CrPC is a procedural provision which is concerned with
the personal liberty of the individual, who is entitled to the beneﬁt of the
presumption of innocence since he is not, on the date of his application for
anticipatory bail, convicted of the oﬀence in respect of which he seeks bail.
An over-generous infusion of constraints and conditions which are not to
be found in Section 438 of CrPC can make its provisions constitutionally
vulnerable since the right to personal freedom cannot be made to depend
on compliance with unreasonable restrictions. The beneﬁcent provision
contained in Section 438 of CrPC must be saved, not jettisoned. The
considerations for grant of anticipatory bail were discussed in paragraph
31 of the said judgment which reads as under:
“31. In regard to anticipatory bail, if the proposed accusation appears to
stem not from motives of furthering the ends of justice but from some
ulterior motive, the object being to injure and humiliate the applicant
by having him arrested, a direction for the release of the applicant on
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 553
ETC. [B. V. NAGARATHNA, J.]

bail in the event of his arrest would generally be made. On the other
hand, if it appears likely, considering the antecedents of the applicant,
that taking advantage of the order of anticipatory bail he will ﬂee from
justice, such an order would not be made. But the converse of these
propositions is not necessarily true. That is to say, it cannot be laid
down as an inexorable rule that anticipatory bail cannot be granted
unless the proposed accusation appears to be actuated by mala ﬁdes;
and, equally, that anticipatory bail must be granted if there is no fear
that the applicant will abscond. There are several other considerations,
too numerous to enumerate, the combined eﬀect of which must weigh
with the Court while granting or rejecting anticipatory bail. The nature
and seriousness of the proposed charges, the context of the events
likely to lead to the making of the charges, a reasonable possibility
of the applicant’s presence not being secured at the trial, a reasonable
apprehension that witnesses will be tampered with and “the larger
interests of the public or the State” are some of the considerations
which the Court has to keep in mind while deciding an application
for anticipatory bail.”
11.2. On the question of evaluation of the consideration as to whether
the applicant is likely to abscond, it was observed that there can be no
presumption that the wealthy and the mighty will submit themselves to
trial and the humble and the poor will run away from the course of justice,
any more than there can be a presumption that the former are not likely to
commit a crime and the latter are more likely to commit it. Ultimately, the
Constitution Bench clariﬁed the following points in paragraphs 35 to 39
which are extracted as under:
“35. Section 438(1) of the Code lays down a condition which has
to be satisﬁed before anticipatory bail can be granted. The applicant
must show that he has “reason to believe” that he may be arrested for
a non-bailable oﬀence. The use of the expression “reason to believe”
shows that the belief that the applicant may be so arrested must be
founded on reasonable grounds. Mere ‘fear’ is not ‘belief”, for which
reason it is not enough for the applicant to show that he has some sort
of a vague apprehension that some one is going to make an accusation
against him, in pursuance of which he may be arrested. The grounds
554 SUPREME COURT REPORTS [2023] 15 S.C.R.

on which the belief of the applicant is based that he may be arrested
for a non-bailable oﬀence, must be capable of being examined by the
Court objectively, because it is then alone that the Court can determine
whether the applicant has reason to believe that he may be so arrested.
Section 438(1), therefore, cannot be invoked on the basis of vague
and general allegations, as if to arm oneself in perpetuity against a
possible arrest. Otherwise, the number of applications for anticipatory
bail will be as large as, at any rate, the adult populace. Anticipatory
bail is a device to secure the individuals liberty; it is neither a passport
to the commission of crimes nor a shield against any and all kinds of
accusations, likely or unlikely.
36. Secondly, if an application for anticipatory bail is made to the
High Court or the Court of Session it must apply its own mind to the
question and decide whether a case has been made out for granting such
relief. It cannot leave the question for the decision of the Magistrate
concerned under Section 437 of the Code, as and when an occasion
arises. Such a course will defeat the very object of Section 438.
37. Thirdly, the ﬁling of a ﬁrst information report is not a condition
precedent to the exercise of the power under Section 438. The
imminence of a likely arrest founded on a reasonable belief can be
shown to exist even if an FIR is not yet ﬁled.
38. Fourthly, anticipatory bail can be granted even after an FIR is ﬁled,
so long as the applicant has not been arrested.
39. Fifthly, the provisions of Section 438 cannot be invoked after the
arrest of the accused. The grant of “anticipatory bail” to an accused
who is under arrest involves a contradiction in terms, insofar as the
oﬀence or oﬀences for which he is arrested, are concerned. After arrest,
the accused must seek his remedy under Section 437 or Section 439 of
the Code, if he wants to be released on bail in respect of the oﬀence
or oﬀences for which he is arrested.”
11.3. Cautioning the Courts against granting blanket order of
anticipatory bail so as to cover or protect any and every kind of allegedly
unlawful activity, or eventuality, it was observed that there must be a
genuine apprehension of arrest by the applicant and there must be something
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 555
ETC. [B. V. NAGARATHNA, J.]

tangible to go by on the basis of which it can be said that the applicant’s
apprehension of arrest is genuine. Otherwise, a blanket order of anticipatory
bail is bound to cause serious interference with both the right and the duty
of the police in the matter of investigation because regardless of what kind
of oﬀence is alleged to have been committed by the applicant, when an
order of bail comprehends allegedly unlawful activity of any description
whatsoever, this will prevent the police from arresting the applicant even
if he commits, say, a murder in the presence of the public. Therefore, the
Court which grants anticipatory bail must take care to specify the oﬀence
or oﬀences in respect of which alone the order will be eﬀective. The power
should not be exercised in a vacuum.
12. While adjudicating on a question as to whether the protection
granted under Section 438 of CrPC should be limited to a ﬁxed period
so as to enable the person to surrender before the trial Court or not, a
Constitution Bench of this Court in Sushila Aggarwal took note of later
doctrinal developments as well as reports of the Law Commission of India.
In this case, two questions were considered by the Constitutional Bench:
1. Whether the protection granted to a person under Section 438
of CrPC should be limited to a ﬁxed period so as to enable the
person to surrender before the trial Court and seek regular bail?
2. Whether the life of an anticipatory bail order should end at the
time and stage when the accused is summoned by the Court?
12.1. Regarding the ﬁrst question, this Court held that the protection
granted to a person under Section 438 of 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) of CrPC 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.
12.2. As regards the second question referred to this Court, it was 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
556 SUPREME COURT REPORTS [2023] 15 S.C.R.

are any special or peculiar features necessitating the Court to limit the tenure
of anticipatory bail, it is open for it to do so.
12.3 The following clariﬁcations were also issued which are to be
borne in mind while dealing with an application under Section 438 of CrPC:
“a) When an application is made seeking anticipatory bail, it should
be based on concrete facts (and not vague or general allegations)
relatable to one or other speciﬁc oﬀence. The application should
contain bare essential facts relating to the oﬀence, and why the
applicant reasonably apprehends arrest, as well as his side of
the story. This is necessary in order to evaluate the threat or
apprehension, its gravity or seriousness and the appropriateness
of any condition that may have to be imposed. An application
should be moved prior to the ﬁling of an FIR, so long as the
facts are clear and there is reasonable basis for apprehending
arrest.
b) It is advisable for the Court, to issue notice to the Public
Prosecutor and obtain facts, even while granting limited interim
anticipatory bail.
c) Nothing in Section 438 CrPC, compels or obliges Courts to
impose conditions limiting relief in terms of time, or upon ﬁling
of FIR, or recording of statement of any witness, by the police,
during investigation or inquiry, etc. The Court has to consider
the nature of the oﬀence, the role of the person, the likelihood
of his inﬂuencing the course of investigation, or tampering
with evidence (including intimidating witnesses), likelihood of
ﬂeeing justice (such as leaving the country), etc. By virtue of
Section 438(2), the Courts would be justiﬁed and ought to impose
conditions spelt out in Section 437(3). Conditions which limit
the grant of anticipatory bail may be imposed, depending on the
facts of the case but not be invariably imposed.
d) Courts ought to be generally guided by considerations such as
the nature and gravity of the oﬀences, the role attributed to the
applicant, and the facts of the case. Whether to grant or not is
a matter of discretion and similarly if bail is to be granted, the
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 557
ETC. [B. V. NAGARATHNA, J.]

kind of conditions to be imposed or not to be imposed depends
upon the facts of each case and subject to the discretion of the
Court.
e) Anticipatory bail granted can, depending on the conduct and
behaviour of the accused, continue after ﬁling of the charge-sheet
till the end of trial.
f) An order of anticipatory bail should not be blanket in the sense
that it should not enable the accused to commit further oﬀences
and claim relief of indeﬁnite protection from arrest. It must be
conﬁned to the particular oﬀence or oﬀences relatable to an
incident, for which apprehension of arrest is sought. It cannot
operate in respect of a future incident that involves commission
of an oﬀence.
g) The grant of an anticipatory bail does not in any manner limit or
restrict the rights or duties of the police or investigating agency,
to investigate into the charges against the person who seeks and
is granted pre-arrest bail.
h) The observations in Gurbaksh Singh Sibbia regarding limited
custody or deemed custody in the context of Section 27 of
the Evidence Act, does not require the accused to separately
surrender and seek regular bail.
i) It is open to the police or the investigating agency to move the
Court concerned, which grants anticipatory bail, for a direction
under Section 439(2) to arrest the accused, in the event of
violation of any term, such as absconding, non-cooperating
during investigation, evasion, intimidation or inducement to
witnesses with a view to inﬂuence outcome of the investigation
or trial, etc.
j) The correctness of an order granting bail can be considered
by the appellate or superior Court at the behest of the State or
investigating agency, and set aside the same on the ground that
the Court granting it did not consider material facts or crucial
circumstances. This does not amount to cancellation in terms of
Section 439(2) CrPC.
558 SUPREME COURT REPORTS [2023] 15 S.C.R.

k) In Siddharam Satlingappa Mhetre vs. State of Maharashtra,
(2011) 1 SCC 694 (and other similar judgments), it was held that
no restrictive conditions at all can be imposed, while granting
anticipatory bail are hereby overruled. Likewise, the decision
in Salauddin Abdulsamad Shaikh vs. State of Maharashtra,
(1996) 1 SCC 667 and subsequent decisions which laid down
restrictive conditions, or terms limiting the grant of anticipatory
bail, to a period of time were overruled.”
13. In Nathu Singh, the complainants ﬁled a Special Leave Petition
challenging the order of the High Court of Judicature at Allahabad, which
dismissed the anticipatory bail application ﬁled by the accused and on
granting them 90 days to surrender before the trial Court and to seek regular
bail, granted them protection from coercive action during the said period
of 90 days.
13.1. The Court after referring to the Constitution Bench Judgment in
the case of Sushila Aggarwal considered the proviso to Section 438(1) of
CrPC and observed that the proviso does not create any rights or restrictions.
It is only clariﬁcatory in nature. The Court then considered the question
whether, while dismissing an application seeking anticipatory bail, the plea
made by the applicant seeking protection for some time as he or she is the
primary caregiver or breadwinner of his or her family members and needs
to make arrangements for them and therefore even if a strict case for grant
of anticipatory bail is not made out, and rather, where the investigating
authority has made out a case for custodial investigation, whether the Court
may exercise its discretion to grant protection against arrest for a limited
period. It was observed that if such an order has to be passed, it must be
narrowly tailored to protect the interests of the applicant while taking
into consideration the concerns of the investigating authority and must be
supported by reasons.
13.2. It was held that in the impugned order of the High Court, it had
dismissed the application seeking anticipatory bail on the basis of the nature
and gravity of the oﬀence by not granting protection from arrest without
assigning any reason. Secondly, the granting of the relief for a period of
90 days did not take into consideration the concerns of the investigating
agency, the complainant or the proviso under Section 438(1) of CrPC, which
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 559
ETC. [B. V. NAGARATHNA, J.]

necessitates that the Court pass such an exceptional discretionary protection
order for the shortest duration that is reasonably required. A period of 90
days, or three months, is an unreasonable period. Therefore, the impugned
orders were set aside leaving it open to the investigating agency to proceed
with the matters in accordance with law and complete the investigation. If
the applicants were in the meanwhile in judicial custody, their applications
for regular bail could be considered by the competent Court, uninﬂuenced
by the observations made in the order.
14. After marshalling the entire range of juridical materials on the
subject of anticipatory bail and the perception of its abuse, the Constitution
Bench in Sushila Aggarwal held the judgements of this Court that postulated
greater limitations on the grant of anticipatory bail to be not good law.
15. The upshot of the above discussion is that the march of criminal
law has been towards chiselling an equitous remedy that strikes a delicate
balance between the imperative of personal liberty with that of eﬀective
administration of criminal law.
16. This Court, while being seized of a challenge to grant extra-
territorial anticipatory bail, had kept the question of law open in the following
two cases:
(i) In Brojen Gogol, this Court considered the Assam Police’s
challenge to the Bombay High Court’s grant of anticipatory bail
to an accused who was allegedly involved in oﬀences perpetrated
in Guwahati. Accordingly, it held that the anticipatory bail
application ought to be made before the Gauhati High Court as
the alleged activities had been perpetrated within its territorial
jurisdiction. Consequently, this Court set aside the impugned
order of the Bombay High Court granting anticipatory bail on the
ground that the prosecuting agency was not heard. However, this
Court held that it did not think it necessary to decide whether the
Bombay High Court had jurisdiction to entertain the anticipatory
bail application. It was held that status quo would be maintained
until the High Court of Gauhati passed appropriate order(s) on
the anticipatory bail application.
560 SUPREME COURT REPORTS [2023] 15 S.C.R.

(ii) This Court also had the occasion to adjudicate upon Teesta
Atul Setalvad vs. State of Maharashtra, Special Leave Petition
(Criminal) No. 1770 of 2014, whereby the applicant seeking
extra-territorial anticipatory bail had appealed against the
Bombay High Court’s order. The Bombay High Court had
permitted the applicant for extra-territorial anticipatory bail to
move before the appropriate Court in Gujarat for the said relief
and granted transit bail for four weeks so as to enable the same.
This Court disposed of the Special Leave Petition No. 1770 of
2014 on 24.02.2014 without interfering with the Bombay High
Court’s judgement while observing that the question of law about
the jurisdiction of the High Court was kept open.
(iii) Therefore, the present appeal constitutes the third of the cases
where this crucial question of public importance has been raised
before this Court by the appellant who is the complainant.
Discussion:
17. Before proceeding further, the reasoning and outcome of some of
the High Court judgements on the grant of extra-territorial anticipatory bail
under Section 438 of CrPC are tabulated as under:
Case Name High Court Outcome and Reasoning
1. Pritam Singh vs. Delhi High Court The High Court allowed accused’s plea
State of Punjab, regarding FIR under Section 438 of CrPC and directed
1980 SCC registered in the that the accused be released in the event
OnLine Del 336 State of Punjab of arrest upon furnishing personal bond
and surety. It was reasoned that one need
(Pritam Singh)
not mix up the jurisdiction relating to
cognizance of an offence with that of
granting bail. Bails are against arrest
and detention. Therefore, an appropriate
Court within whose jurisdiction the
arrest takes place or is apprehended or is
contemplated will also have jurisdiction
to grant bail to the person concerned. If
the Court of Session or the High Court has
the jurisdiction to grant interim bail, then
the power to grant full anticipatory bail
will emanate from the same jurisdiction.
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 561
ETC. [B. V. NAGARATHNA, J.]

Case Name High Court Outcome and Reasoning
Concurrent jurisdiction in Courts situated
in diﬀerent States is not outside the scope
of the CrPC. It is not possible to divide the
jurisdiction under S. 438 of CrPC into an
ad interim and ﬁnal, but it is permissible
if it is so expedient or desirable, for any of
the Courts competent to take cognizance
of and to try an oﬀence and the Courts
competent to grant bail can also grant
anticipatory bail for a speciﬁed period
only.h

2. InRe: Benod Calcutta High The High Court granted relief under
Ranjan Sinha, Court regarding Section 438 of the CrPC to the petitioner
1981 SCC FIR registered in therein and reasoned that it has jurisdiction
Online Cal 102 the State of Bihar. to entertain the application for anticipatory
bail of a petitioner who resides within the
(InRe: Benod
jurisdiction of the said Court, though he
Ranjan Sinha)
apprehends arrest in connection with a
case which has been initiated outside the
jurisdiction of this Court.

3. L.R. Naidu Karnataka High The anticipatory bail applicant was
(Dr.) vs. State of Court regarding granted protection from arrest with the
Karnataka, 1983 FIR registered in direction that upon a future arrest, he shall
SCC OnLine Kar the State of Kerala be released on bail on his executing a bond
206 of a sum of Rs. 3,000/- with a surety in
a like sum to the police’s satisfaction. He
(L.R. Naidu)
was directed to approach the appropriate
Court in Kerala State within twenty
days from the date of his arrest by the
Cannanore Police. It was held that in
case he made any such application within
the time referred to above, the order of
anticipatory bail would be in force till
such time as that Court passes an order.
In case the petitioner does not make any
application the order would cease to be
in force thereafter i.e., from the 21st day
of his arrest.
562 SUPREME COURT REPORTS [2023] 15 S.C.R.

Case Name High Court Outcome and Reasoning
4. C.L. Mathew Kerala High Court The High Court granted anticipatory bail.
vs. Govt. of regarding oﬀences It noted that an oﬀence may be committed
India, 1984 SCC committed in in one State and that the applicant may
Online Ker 207 Jamshedpur, reside in another State; or he may have
Bihar. residence in several States. He may be
(C.L. Mathew)
arrested while he is on the move, after
committing the crime, before he reaches
his place of residence in another State. It
cannot be that he can be armed with orders
of anticipatory bail from every High
Court; it cannot also be that conﬂicting
orders are issued by diﬀerent High Courts
in respect of the same offence and in
respect of the same alleged oﬀender. A
balance has therefore to be struck keeping
in view the constitutional guarantee
under Articles 21 and 22, the procedural
safeguards under the Criminal Procedure
Code and the jurisdiction conferred on the
High Courts in India.

It was concluded that the High Court
of the State will have to restrict the
scope of the relief of anticipatory bail to
arrests made within that State. Arrests
made outside the State will thus not be
protected by an order under S. 438 of
CrPC unless the oﬀence itself is alleged
to be committed within the State.

5. N.K. Nayar Bombay High The High Court laid emphasis on the
vs. State of Court with expression ‘apprehension of arrest’
Maharashtra, respect to an and held that if the arrest is likely to be
1985 Cri LJ FIR registered in aﬀected within a jurisdiction beyond that
1887 Haryana. of the High Court, then the concerned
person may apply to the High Court for
(N.K. Nayar)
anticipatory bail even if the oﬀence is
committed in some other State.
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 563
ETC. [B. V. NAGARATHNA, J.]

Case Name High Court Outcome and Reasoning
6. Syed Zafrul Patna Bench of The High Court denied the relief and
Hassan vs. State,the Patna High reasoned that an application under Sec.
1986 Court with respect 438 of CrPC cannot be entertained in
to FIR registered respect of oﬀences committed in another
SCC Online Pat 3
at Jhinkpani territory for want of jurisdiction. The High
(Syed Zafrul police station Court laid emphasis on ‘the deliberate
Hassan) which falls in designed phraseology’ of Section 438
the district of of CrPC and reasoned that “the High
Singhbhum and Court” or “the Court of Session” cannot
comes squarely be conﬂated with “any High Court” or
within the “any Court of Session”. Denying that
jurisdiction of the the word ‘the’ could be substituted with
Ranchi Bench of ‘any’, the High Court reasoned that such
the Patna High a substitution would be doing ‘plain
Court. violence to the specific language’ of
Section 438 of CrPC.

7. Sailesh Jaiswal Calcutta High The Full Bench of Calcutta High Court
vs. State of West Court held that an application under Sec. 438
Bengal, 1998 of CrPC cannot be entertained in respect
SCC Online Cal of oﬀences committed in another State
215 (Sailesh for want of jurisdiction. The High Court
Jaiswal) reasoned that the exercise of jurisdiction
of anticipatory bail by any other Court
namely the High Court or the Court of
Session beyond the local limits of their
jurisdiction is limited to the extent of
consideration of bail for the transitional
period. Accordingly, denied relief of
anticipatory bail but granted transit
anticipatory bail.

8. Sadhan Chandra Calcutta High The Court noted that in view of Article
Kolay vs. State, Court with 214 of the Constitution, the territorial
1998 SCC respect to oﬀence jurisdiction of a particular High Court of
Online Cal committed outside a particular State ordinarily shall not be
382 (Sadhan the State of West extended to the territory of any other State
Chandra Kolay) Bengal. and exercise of any power or jurisdiction
in connection with any matter outside the
State would be in excess of the power
conferred by the law.
564 SUPREME COURT REPORTS [2023] 15 S.C.R.

Case Name High Court Outcome and Reasoning
Section 438 of CrPC confer special
powers only on the Court of Session and
the High Court to grant anticipatory bail
in the event of arrest by the police. The
legislative intention behind this provision
is to prevent undue harassment by the
police of an innocent citizen or class of
citizens. So far as the Sessions Court is
concerned, its power is limited to the
territorial jurisdiction of the Sessions-
Division and it cannot exercise the power
under Section 438 of CrPC outside
its Sessions-Division. Therefore, it is
clear that the Sessions Judge has got
no authority to exercise the power or
jurisdiction under Section 438 of CrPC
beyond the local limits of the territorial
jurisdiction of the Sessions-Division.
The High Court held that the petition for
anticipatory bail under Section 438 of
CrPC in connection with an oﬀence in
any out-station cannot be entertained by
the High Court and as such the petition
was not maintainable.

9. Honey Preet Delhi High Court The High Court noted that the applicant,
Insan vs. State, regarding oﬀence a resident of Sirsa in Haryana, had sought
2017 SCC registered in the anticipatory bail from a Delhi Court by
Online Del State of Haryana. giving a Delhi address in addition to a
10690 (Honey Sirsa address. The High Court emphasized
Preet Insan) that it was duty bound to consider whether
the applicant is a regular or bona ﬁde
resident of a place within the local limits
of that Court and the application is not a
camouﬂage to evade the process of law.
If the Court is not satisﬁed on this aspect,
the application deserves to be rejected
without going into the merits of the case
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 565
ETC. [B. V. NAGARATHNA, J.]

Case Name High Court Outcome and Reasoning
The High Court also denied the plea of
transit anticipatory bail for period of three
weeks to enable the applicant to move
the Punjab and Haryana High Court. The
High Court reasoned that the applicant
was at large and her counsel had refused to
undertake to join investigation upon being
granted interim protection. Therefore, the
High Court concluded that the application
is not bona ﬁde and has been ﬁled with a
view to gain time.

10. Teesta Atul Bombay High The High Court granted transit bail for
Setalvad vs. State Court regarding four weeks and allowed the applicant
of Maharashtra, oﬀence registered to move before the appropriate Court in
ABA No.14/2014 in the State of Gujarat for said relief.
Gujarat
(Teesta Atul
Setalvad)
11. Gameskraft Karnataka High The High Court recognized that it is a
Technologies Court regarding well-settled proposition of law that though
vs. State of oﬀence registered the alleged oﬀence had not taken place
Maharashtra, in the State of within the jurisdiction of the said Court, it
2019 SCC Maharashtra. can grant bail though it has no jurisdiction.
OnLine Kar 520 The High Court allowed the application,
(Gameskraft directing that they must be immediately
Technologies) released if they are arrested, subject to the
condition that the applicant ‘shall appear
before the jurisdictional Court within
15 days or within 15 days from the date
of their arrest by the concerned police
whichever was earlier.

12. Surya Pratap Delhi High The High Court granted two weeks to
Singh vs. State of Court regarding the applicant to make an appropriate
Karnataka, 2019 oﬀence registered application before the concerned Court.
SCC Online Del in the State of Protection was granted for two weeks.
9533 (Surya Karnataka.
Pratap Singh)
566 SUPREME COURT REPORTS [2023] 15 S.C.R.

Case Name High Court Outcome and Reasoning
13. Nikita Jacob Bombay High Reasoned that the imperative of temporary
vs. State of Court regarding relief to protect liberty and to avoid
Maharashtra, oﬀence registered immediate arrest may be relied upon to
2021 SCC in New Delhi. grant interim bail for an oﬀence that was
OnLine Bom allegedly committed outside the Court’s
13919 (Nikita territorial jurisdiction.
Jacob)
14. Ajay Agarwal Allahabad High The High Court noted that transit bail
vs. The State of Court regarding is protection from arrest for a certain
U.P.,2022 SCC oﬀence registered deﬁnite period as granted by the Court
OnLine All 689 in the State of granting such transit bail. Therefore, the
(Ajay Agarwal) Maharashtra. Court granted protection to the accused
for a period of six weeks to enable him to
approach the competent Court for seeking
appropriate relief.

15. Amita Garg Allahabad High The High Court noted that there is no
vs. State of Court regarding legislation or law which deﬁnes “transit
U.P., 2022 SCC oﬀence registered or anticipatory bail’ in definitive or
Online All 463 in the State of speciﬁc terms. The said Court explained
(Amita Garg) Rajasthan. that the transit anticipatory bail precedes
detention of the accused and is eﬀective
immediately at the time of the arrest.
Transit bail is protection from arrest
for a certain deﬁnite period as directed
by the Court granting such transit bail.
Therefore, when an accused is arrested
in accordance with the order of a Court
and whereas the accused needs to be tried
in some other competent Court having
jurisdiction in the aforementioned matter,
the accused is given bail for the transitory
period i.e., the time period required for
the accused to reach that competent Court
from the place he is arrested in.
The regular Court would consider such
anticipatory bail, on its own merits
and shall decide such anticipatory bail
application. Therefore, it could be easily
said that transit bail is a temporary relief
which an accused gets for a certain period
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 567
ETC. [B. V. NAGARATHNA, J.]

Case Name High Court Outcome and Reasoning
of time. The High Court concluded that
there is no fetter on the part of the High
Court in granting a transit anticipatory bail
to enable the applicants to approach the
Courts including the High Court within
whose jurisdiction the oﬀence is alleged
to have been committed and the case is
registered.

16. Manda Suresh Bombay High The High Court granted transit anticipatory
Parulekar Court regarding bail with respect to an FIR registered in
vs. State of oﬀence registered Tardeo, Goa. Without adjudicating the
Goa, 2023 in the State of merits of the case, upon considering the
SCC OnLine Goa. factual aspects of the case, protection
Bom 1568 was granted for a period of four weeks
(Manda Suresh to enable the applicants to approach the
Parulekar) concerned Court for appropriate reliefs.

18. The above table is a testament to the rich jurisprudential discussion
that has arisen out of the limited legislative guidance regarding the
expression ‘the High Court or the Court of Session.’ The analysis of the
above case law is as under:
a. The Patna High Court in Syed Zafrul Hassan stressed on the plain
meaning of Section 438 of CrPC to hold that ‘the High Court’ or
‘the Court of Session’ cannot mean “any” High Court or Court of
Session. Therefore, it held that the application for direction under
Section 438 of CrPC was not maintainable at Patna Bench of the
Patna High Court because the FIR was registered at the Jhinkpani
police station which falls in the district of Singhbhum. The matter
thus came squarely within the jurisdiction of the Bench of the
Patna High Court at Ranchi. The High Court stressed on the
principle that a criminal Court takes cognizance of the oﬀence and
not of individual oﬀenders, vide Raghubans Dubey. Therefore,
the High Court emphasized upon the practical diﬃculties if the
jurisdiction of criminal Court was determined by ‘the shady or
evasive movements of the oﬀender’, there would be ‘judicial
568 SUPREME COURT REPORTS [2023] 15 S.C.R.

chaos and an inherent conﬂict betwixt the comity of Courts.’ The
High Court cautioned that if the application for anticipatory bail
was maintainable outside the territorial jurisdiction of the High
Court, ‘a fugitive oﬀender may well move from Court to Court
ad inﬁnitum and if he fails in one jurisdiction then on to another
until he secures relief in the last.’
b. Calcutta High Court in Sadhan Chandra Kolay relied upon
Article 214 of the Constitution which states that there shall be
a High Court for each State and had categorically held that the
Sessions Judge has got no authority to exercise the power or
jurisdiction under Section 438 of CrPC beyond the local limits
of the territorial jurisdiction of the Sessions-Division.
c. The facts in Honey Preet Insan are peculiar to the extent that
the relief of interim protection was denied because the applicant
was at large and had categorically refused to join investigation.
d. At this juncture it may be noted that the aforementioned approach
was supported by the Justice V.S. Malimath Committee’s Report
on Reforms in Criminal Justice System. In section 7.33, page
121, the Committee had proposed that provision regarding
anticipatory bail may be retained subject to two conditions:
that the Court would hear the Public Prosecutor; and that the
petition for anticipatory bail should be heard only by the Court
of competent jurisdiction.
e. Another set of judgements, such as of the Delhi High Court in
Surya Pratap Singh, Allahabad High Court in Ajay Agarwal,
Amita Garg, Bombay High Court in Teesta Atul Setalvad,
Nikita Jacob and Manda Suresh Parulekar, highlight the
transit anticipatory bail approach. In these cases, the High Court
granted transit bail and ruled that the grant of protection from
arrest beyond the local limits of their jurisdiction is limited to
the extent of consideration of bail for the transitional period.
In other words, the High Courts in their respective judgement
has read the scheme of administration of criminal justice and
the provision for anticipatory bail in a conjoint sense, thereby
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 569
ETC. [B. V. NAGARATHNA, J.]

limiting the relief of extra-territorial anticipatory bail to a
deﬁnite interim period.
f. Another line of judgments namely, by the Delhi High Court in
Pritam Singh; Kerala High Court in C.L. Mathew; Bombay High
Court in N.K. Nayar; Calcutta High Court In Re:Benod Ranjan
Sinha and Karnataka High Court in L.R. Naidu and Gameskraft
Technologies have read the expression ‘the High Court or
the Court of Session’ in Section 438 of CrPC as diﬀerent and
disjoint from the general scheme of criminal procedure, thereby
deciding in favor of grant of protection from arrest to remove
the apprehension of arrest at a particular place, irrespective of
the territorial jurisdiction to take cognizance of the criminal
oﬀence in question. The constitutional imperative of safeguarding
personal liberty was emphasised and it was noted that a person
may apprehend arrest at a place including at a place other than
the one within the jurisdiction in which an alleged oﬀence has
been committed. The High Courts in their respective judgments
adverted to the lack of legislative qualiﬁcation of the expression
‘the High Court or the Court of Session’ to mean that it extends
to any High Court or Court of Session in whose jurisdiction an
arrest is apprehended by a person against whom an FIR has been
ﬁled.
Position of law overseas:
19. Article 9 of the Universal Declaration of Human Rights,
1948 establishes that “no one shall be subjected to arbitrary arrest,
detention or exile.” Article 10 of the International Covenant on Civil
and Political Rights of the United Nations, 1966 establishes that “all
persons deprived of their liberty shall be treated with humanity and with
respect for the inherent dignity of the human person”. These provisions
in the International Human Rights instruments are a necessary safeguard
against the reality of arbitrary and inhumane deprivation of liberty and
the inability of those thus deprived to beneﬁt from legal resources and
constitutional guarantees that they are entitled to for the conduct of their
defence as required by law in any judicial system and by application of
international human rights standards.
570 SUPREME COURT REPORTS [2023] 15 S.C.R.

20. Comparative legal study on law of criminal procedure presents
India as an exemplar with respect to the provision for pre-arrest bail. It would
be useful to consider how other jurisdictions have dealt with the issue of
pre-arrest bail as under:
(a) Possibly, the only known case of an application for a pre-arrest
bail bond in the United States of America is In re: Sturman,
1984.604 F. Supp. 278. (F. E. Devine (1990) Anticipatory
Bail: An Indian Civil Liberties Innovation, International
Journal of Comparative and Applied Criminal Justice, 14:1-2,
107-114). The U.S. District Court for the Northern District of
Ohio presumed that the applicant’s motion was made to spare
himself of the embarrassment of arrest. In denying the motion as
premature, the Chief District Judge commented that the “setting
of a bail bond is to insure the accused’s presence at trial; it is not
designed as a means to avoid arrest.”
(b) In the United Kingdom, the common law of arrest was codiﬁed
in Section 2 of the Criminal Law Act, 1967. The salient facets of
Section 2 are that for an arrest to be lawful, the oﬀence must be
one carrying a penalty of ﬁve years imprisonment (an “arrestable
oﬀence”); and there must, at the minimum, be suspicion on
reasonable grounds that the person to be arrested either has
committed, is committing or is about to commit the oﬀence. It
may be wielded as a tool to prevent the destruction of evidence,
interference with witnesses or warning accomplices who have
yet to be arrested. When there is reason to suspect an oﬀence
may be repeated, especially though not exclusively in the case
of violent oﬀences, it may be used to prevent such repetition.
(c) The United Kingdom’s Royal Commission Report on Criminal
Procedure (Philips Commission)(1981) - cited aﬃrmatively by
this Court in Joginder Kumar vs. State of U.P., (1994) 4 SCC
260, para 17-19 - proposed to restrict the circumstances in
which the police could exercise the power of arrest with warrant
to deprive a person of his liberty to those in which it would
genuinely be necessary to enable them to execute their duties of
preventing the commission of oﬀences, investigating crime, and
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 571
ETC. [B. V. NAGARATHNA, J.]

bringing suspected oﬀenders before the Courts; and to simplify,
clarify and rationalise the existing statutory powers of arrest,
conﬁrming the present rationale for the use of those powers. It
stated as follows:
“In attempting to limit the power of arrest, we have no
intention of inhibiting the police from fulﬁlling their functions
of detecting and preventing crime. But we do seek to alter
the practice whereby the inevitable sequence that would
follow upon the arising of a reasonable suspicion is arrest,
followed by being taken to the station, often to be searched,
ﬁngerprinted and photographed. The evidence submitted to us
supports the view of the Police Complaints Board, expressed
in their triennial report, that police oﬃcers are so involved
with the process of arrest and detention that they fail at times
to understand the sense of alarm and dismay felt by some of
those who suﬀer such treatment. Arrest represents a major
disruption to the suspect’s life…That disruption cannot, in our
view, be justiﬁed if it is not necessary to take him to the station
for one or more of the following reasons: to ﬁnd out his name
and address; to prevent the continuation or repetition of the
oﬀence; to protect persons or property; to preserve evidence
in connection with that oﬀence; to dispel reasonable suspicion
or to turn it into a prima facie case.” (para 3.75)
The Royal Commission underlined the necessity principle to
diminish the possibility of arbitrary arrest, thereby requiring the
police oﬃcer receiving the suspect in his custody to enquire as
to whether it would be essential to keep the arrested person at
the police station on the basis of the following criteria:
(i) the person’s unwillingness to identify himself so that a
summons may be served upon him;
(ii) the need to prevent the continuation or repetition of that
oﬀence;
(iii) the need to protect the arrested person himself, or other
persons or property;
572 SUPREME COURT REPORTS [2023] 15 S.C.R.

(iv) the need to secure or preserve evidence of or relating to
that oﬀence or to obtain such evidence from the suspect by
questioning him; and
(v) the likelihood of the person failing to appear at Court to
answer any charge made against him.
(d) The Queen’s Bench in Regina vs. Secretary of State for the
Home Department, Ex Parte LeecH, (1994) Q.B. 198 held that
it was a principle of fundamental importance that every citizen
had a right of unimpeded access to a Court, and to a solicitor
for the purpose of receiving advice and assistance in connection
therewith.
(e) In Kenya, while there are no speciﬁc provisions on anticipatory
bail, these are instead enshrined in constitutional provisions under
the Bill of Rights. The Constitution of Kenya, 2010 provides for:
(i) Bail of arrested person under Article 49(1)(h)
(ii) Appropriate relief under Article 23(3) for breach of the Bill
of Rights.
Therefore, wherever the remedy has been considered, the
Courts have applied the threshold applicable to an application
ﬁled seeking to prevent the violation or threatened violation of
rights under Articles 23 and 165(3) of the Kenyan Constitution.
(f) The High Court of Kenya in Coroline Kuthie Karanja vs.
Director Public Prosecutions, (2021) eKLR extensively
referred to Section 438 of CrPC and stated that the constitutional
Courts of India had widely construed the fundamental aspects
of anticipatory bail to be of great importance and anchored to
the right to life and liberty of a person. The High Court also
emphatically reiterated its constitutional duty to go to the
length and breadth of the Constitution to protect the rights
and fundamental freedoms of Kenyans where need be, but it
emphasized the need to be alive to its obligation not to curtail the
other organs of the State from carrying out their constitutional
mandate. Accordingly, the High Court granted anticipatory bail
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 573
ETC. [B. V. NAGARATHNA, J.]

on the ground that the applicant therein had been arrested in the
past and was out of custody on bond for a charge that was similar
to the charge that she apprehended the arrest for.
Personal Liberty and Access to Justice:
While we have analysed key judgments of this Court as well as
various High Courts across the country on the pertinent question/issue
raised in this case, we must also look at the same from the angle of
personal liberty and access to justice. Article 39 A of the Constitution of
India deals with equal justice and free legal aid, which can be construed
to be a specie of Article 21 of the Constitution of India, which deals with
right to life and liberty. For sake of immediate reference, Article 39A is
extracted as under:
“39A. Equal justice and free legal aid.- The State shall secure that
the operation of the legal system promotes justice, on a basis of equal
opportunity, and shall, in particular, provide free legal aid, by suitable
legislation or schemes or in any other way, to ensure that opportunities
for securing justice are not denied to any citizen by reason of economic
or other disabilities.”
21. A Constitution Bench of this Court in Anita Kushwaha vs. Pushap
Sudan, (2016) 8 SCC 509 held access to justice to be encompassed within
the right to life under Article 21 and observed as under:
“31. Given the fact that pronouncements mentioned above have
interpreted and understood the word “life” appearing in Article 21 of
the Constitution on a broad spectrum of rights considered incidental
and/or integral to the right to life, there is no real reason why access
to justice should be considered to be falling outside the class and
category of the said rights, which already stands recognised as being
a part and parcel of Article 21 of the Constitution of India. If “life”
implies not only life in the physical sense but a bundle of rights that
makes life worth living, there is no juristic or other basis for holding
that denial of “access to justice” will not aﬀect the quality of human
life so as to take access to justice out of the purview of right to life
guaranteed under Article 21. We have, therefore, no hesitation in
holding that access to justice is indeed a facet of right to life guaranteed
574 SUPREME COURT REPORTS [2023] 15 S.C.R.

under Article 21 of the Constitution. We need only add that access to
justice may as well be the facet of the right guaranteed under Article
14 of the Constitution, which guarantees equality before law and
equal protection of laws to not only citizens but non-citizens also.
We say so because equality before law and equal protection of laws
is not limited in its application to the realm of executive action that
enforces the law. It is as much available in relation to proceedings
before Courts and tribunal and adjudicatory fora where law is applied
and justice administered. The citizen’s inability to access Courts or
any other adjudicatory mechanism provided for determination of rights
and obligations is bound to result in denial of the guarantee contained
in Article 14 both in relation to equality before law as well as equal
protection of laws. Absence of any adjudicatory mechanism or the
inadequacy of such mechanism, needless to say, is bound to prevent
those looking for enforcement of their right to equality before laws and
equal protection of the laws from seeking redress and thereby negate
the guarantee of equality before laws or equal protection of laws and
reduce it to a mere teasing illusion. Article 21 of the Constitution apart,
access to justice can be said to be part of the guarantee contained in
Article 14 as well.”
The Constitution Bench enumerated four facets of access to justice as:
“33. Four main facets that, in our opinion, constitute the essence of
access to justice are:
(i) the State must provide an eﬀective adjudicatory mechanism;
(ii) the mechanism so provided must be reasonably accessible in
terms of distance;
(iii) the process of adjudication must be speedy; and
(iv) the litigant’s access to the adjudicatory process must be
aﬀordable.”
22. Therefore, this Court has elevated the provision of a just adjudicatory
forum for a citizen to agitate his grievance and seek adjudication of what he
may perceive as a breach of his right to the level of a fundamental right. Not
only is the adjudicatory forum supposed to be eﬀective in its functioning
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 575
ETC. [B. V. NAGARATHNA, J.]

and just, fair and objective in its approach, but it also must be conveniently
approachable and aﬀordable by observing as under:
“35. The forum/mechanism so provided must, having regard to the
hierarchy of Courts/tribunals, be reasonably accessible in terms of
distance for access to justice since so much depends upon the ability
of the litigant to place his/her grievance eﬀectively before the Court/
tribunal/Court/competent authority to grant such a relief. (See D.K.
Basu v. State of W.B. [D.K. Basu v. State of W.B., (2015) 8 SCC 744
: (2015) 3 SCC (Cri) 824] )”
23. It was also emphasised that access to justice would, therefore, be
a constitutional value of any signiﬁcance and utility only if the delivery of
justice to the citizen is speedy, for otherwise, the right to access justice is
no more than a hollow slogan of no use or inspiration for the citizen. It was
held as under:
“38. Access to justice will again be no more than an illusion if the
adjudicatory mechanism provided is so expensive as to deter a disputant
from taking resort to the same. Article 39-A of the Constitution
promotes a laudable objective of providing legal aid to needy litigants
and obliges the State to make access to justice aﬀordable for the less
fortunate sections of the society.”
Section 438 CrPC : Interpretation
24. The answer to the points for consideration raised herein would
emerge from the construction that is aﬀorded to the expression ‘the High
Court or the Court of Session’ in Section 438 of CrPC. It was submitted
before us that the use of the deﬁnite article ‘the’ before High Court and
Court of Session must mean that High Court and that Court of Session
which exercises territorial jurisdiction over the area where an oﬀence has
been committed.
25. It indeed is a trite rule of statutory interpretation that penal statutes
are to be construed strictly. When acts are to be made penal and are to be
visited with loss or impairment of life, liberty, or property, it may well be
argued that personal liberty requires clear and exact deﬁnition of the oﬀence.
Furthermore, appropriate care must be taken to adopt an interpretation which
576 SUPREME COURT REPORTS [2023] 15 S.C.R.

makes the textual interpretation match the contextual. In this regard, the
following contextual aspects may be noted:
a. The CrPC explicitly defines the ‘local limits’ and ‘local
jurisdiction’ within which the Magistrate may exercise
jurisdiction.
b. Even though the High Court is deﬁned in CrPC, no provision
explicitly deﬁnes its territorial jurisdiction which has to be
discerned from the Constitution of India.
c. Section 438(1)(iv) of CrPC makes explicit the legislative intent
to prevent humiliation of the persons who apprehend arrest,
especially in politically motivated or malicious prosecutions or
in false cases.
d. The mischief that Section 438 of CrPC seeks to remedy is
apprehension of wrongful arrest.
26. Therefore, we ought to provide sufficient amplitude to the
expression ‘reason to believe that he may be arrested’, and look at the setting
in which the words are used and the circumstances under which the law came
to be passed to decide whether something implicit is behind the words used
which controls the literal meaning of such words. An interpretation giving
rise to an absolute bar on the jurisdiction of a Court of Session or a High
Court to grant interim anticipatory bail for an oﬀence committed outside
the territorial conﬁnes of a High Court or Court of Session may lead to an
anomalous and unjust consequence for bona ﬁde applicants who may be
victims of wrongful, mala ﬁde or politically motivated prosecution.
27. Furthermore, the fundamental right to personal liberty and access
to justice, which are constitutionally recognised and statutorily preserved
through the presence of jurisdiction with superior Courts, would be
undermined through such a restrictive interpretation. While construing a
statute, constitutional Courts are obliged to render a contextually sensitive
construction that preserves and furthers core constitutional values.
28. Reliance in this regard may be placed on the dicta of this Court
in Central Inland Water Transport Corporation vs. Brojo Nath Ganguly,
(1986) 3 SCC 156:
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 577
ETC. [B. V. NAGARATHNA, J.]

“It is thus clear that the principles governing public policy must be
and are capable, on proper occasion, of expansion or modiﬁcation.
Practices which were considered perfectly normal at one time have
today become obnoxious and oppressive to public conscience. If there
is no head of public policy which covers a case, then the Court must
in consonance with public conscience and in keeping with public
good and public interest declare such practice to be opposed to public
policy. Above all, in deciding any case which may not be covered
by authority our Courts have before them the beacon light of the
Preamble to the Constitution. Lacking precedent, the Court can
always be guided by that light and the principles underlying the
Fundamental Rights and the Directive Principles enshrined in
our Constitution.”
(emphasis by us)
29. We are mindful that this Court’s jurisprudence on Section 438
of CrPC, particularly in Gurbaksh Singh Sibbia and Sushila Aggarwal,
has towed the line of wise exercise of judicial discretion while interpreting
the silence of the Parliament to imply an intention to facilitate the grant of
essential procedural relief to secure the right to life and personal liberty under
Article 21. Whilst the Constitution Bench in Gurbaksh Singh Sibbia ruled
against the procedural and substantive restrictions on the grant of relief of
anticipatory bail, the Constitution Bench in Sushila Aggarwal held that the
period of anticipatory bail cannot be limited, and may extend till the end of
trial. The judgement of the Constitution Bench in Gurbaksh Singh Sibbia,
in para 13, emphasises that, ‘the High Court and the Court of Session to
whom the application for anticipatory bail is made ought to be left free in
the exercise of their judicial discretion to grant bail if they consider it ﬁt
so to do on the particular facts and circumstances of the case and on such
conditions as the case may warrant.’
30. Maxwell in his treatise on Interpretation of Statutes (10 edn.),
page 284 states that “the tendency of modern decisions on the whole is to
narrow materially the diﬀerence between strict and beneﬁcial construction”.
It follows that criminal statutes such as the CrPC are interpreted with
rational regard to the aim and intention of the legislature. What has to be
borne in the judicial mind is that the interpretation of all statutes should be
578 SUPREME COURT REPORTS [2023] 15 S.C.R.

favorable to personal liberty subject to fair and eﬀective administration of
criminal justice.
31. A remedy such as anticipatory bail secures citizens aﬄicted in
diﬃcult life circumstances – and such diﬃculties would keep evolving as
our collective lives and legal systems become more complex. We deem it ﬁt
to distinguish between exercise of jurisdiction arising out of apprehension
of arrest and jurisdiction conferred consequent to the “commission and
cognizance of an oﬀence”. If the Parliament intended that the expression
‘the High Court or the Court of Session’, to mean only the Court that
takes cognizance of an oﬀence, then the Parliament would have made this
abundantly clear. The omission of any qualiﬁcation of the expression ‘the
High Court or the Court of Session,’ ought to be constructed in a fashion
that furthers the constitutional ideal of safeguarding personal liberty. It
would be in furtherance of fostering personal liberty enshrined in Article
21 of the Constitution of India in entrusting a wider jurisdiction to the
Court of Session and the High Court in the grant of anticipatory bail, than
in foreclosing the same by restructuring the exercise of jurisdiction in the
matter of grant of anticipatory bail.
32. In the context of the contentions advanced by Dr. Manish Singhvi
that the unbridled power to grant extra-territorial anticipatory bail would
cause inconsistencies because of the varying State amendments to Section
438 of CrPC, we note that the application of the provision for anticipatory
bail in the State of Uttar Pradesh had been omitted vide the enactment of the
Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1976. The
Uttar Pradesh State Legislature applied Section 438 of CrPC vide enactment
of Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 2018,
pursuant to ‘continuous demand for its revival’, writ petitions before the High
courts, and recommendations of the Uttar Pradesh State Law Commission
in its third report in 2009. We also note that the Code of Criminal Procedure
(Uttar Pradesh Amendment) Act, 2022 makes the provision of anticipatory
bail inapplicable (a) in case of oﬀences arising out of,— (i) The Unlawful
Activities (Prevention) Act, 1967; (ii) The Narcotic Drugs and Psychotropic
Substances Act, 1985; (iii) The Oﬃcial Secrets Act, 1923; (iv) The Uttar
Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986; (v)
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 579
ETC. [B. V. NAGARATHNA, J.]

The Protection of Children from Sexual Oﬀences Act, 2012; (b) to those
oﬀences in which the death sentence may be awarded; (c) to the oﬀences
of rape and illegal sexual intercourse enumerated in sections 376, 376-A,
376-AB, 376-B, 376-C, 376-D, 376-DA, 376-DB, 376-E of the Indian
Penal Code, 1860.
33. Considering that the nature of criminal law regime in India,
entwined with State amendments, the exercise of the jurisdiction for grant
of extra-territorial anticipatory bail must be cognizant of the possibility of
forum shopping. We also deem it necessary to take note of the evolution
of the law on inter-state arrests, as this lies at the heart of ‘apprehension
of arrest,’ for which the extraordinary jurisdiction of the High Court and
Court of Session are attracted in case the accused resides in or is located in
a territorial jurisdiction diﬀerent from the jurisdiction in which cognizance
of crime is taken by the Court of competent jurisdiction.
34. Section 48 of CrPC 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. However in
various cases, the police and investigating agencies have failed to exercise
necessary restraint while functioning within their legal remit. It is for the
aforesaid reason that an accused apprehending arrest seeks pre-arrest bail.
The Courts in India have to be vigilant about such applications being ﬁled
particularly when a person alleged to have committed an oﬀence can be
proceeded with by setting the criminal law in motion in a place other than
the place where the oﬀence has actually occurred. In such circumstances
the Courts must balance the interest of the accused in the context of the
salutary principle of access to justice which is a facet of Article 21 of the
Constitution as well as a Directive Principle of State Policy, especially
580 SUPREME COURT REPORTS [2023] 15 S.C.R.

Article 39(A). More importantly, it is a facet of Article 14 of the Constitution
which guarantees to every person in the country, equality before the law
and equal protection of the law.
35. In this case, we are concerned with what is loosely termed as ‘transit
anticipatory bail’. As we have seen, the expression ‘anticipatory bail’ is not
deﬁned in the CrPC though it is traceable to Section 438 of CrPC This Court
in Balchand Jain had deﬁned anticipatory bail to mean bail in anticipation
of arrest. The Constitution Bench in Gurbaksh Singh Sibbia has held that
ﬁling of FIR is not a condition precedent for exercising power under Section
438 of CrPC What is required for invocation of power under Section 438
is that the person seeking anticipatory bail should show reasonable belief
of imminent arrest. If the expression ‘anticipatory bail’ is not a deﬁned
expression, then it is quite but natural that the larger expression ‘transit
anticipatory bail’ would not ﬁnd any exposition in the CrPC. Perhaps the
need and necessity for transit anticipatory bail has occasioned because the
police has been conferred power under the CrPC 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. It appears that from the aforesaid requirement
of transit remand, has arisen the necessity of ‘transit anticipatory bail’ for,
an aﬀected person cannot be without a remedy.
35.1. The word ‘transit’ is derived from the Latin word transitus
which means passage from one place to another. Since the word ‘transit’ is
an undeﬁned expression in CrPC, we may take recourse to the dictionary
meaning of the word ‘transit’. The Concise Oxford English Dictionary,
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 581
ETC. [B. V. NAGARATHNA, J.]

10th Edition, Revised, deﬁnes the word ‘transit’ to mean carrying of people
or things from one place to another; the conveyance of passengers on
public transport; an act of passing through or across a place. ‘Transited’
or ‘transiting’ would mean pass across or through. Similarly, the word
‘transition’ means the process of changing from one state or condition to
another. Likewise, the adjective ‘transitory’ means not permanent; short-
lived. An useful example of the above expression is transit visa which means
a visa allowing its holder to pass through a country only, not to stay there.
The word ‘transit’ has also been deﬁned in the Black’s Law Dictionary,
11th Edition, to mean the transportation of goods or person from one place
to another; passage; the act of passing.
35.2. In Dr. Brojen Gogol, this Court did not decide whether the
Bombay High Court had the jurisdiction to entertain the anticipatory
bail applications of the respondents since the crimes were registered
within the State of Assam. On the short point that the State of Assam or
the Assam police were not heard before granting anticipatory bail to the
respondents, this Court set aside the order of the Bombay High Court but
granted protection from arrest to the respondents for a limited duration to
enable them to approach the Gauhati High Court. While passing such an
order, this Court however made a general observation that the question
of granting anticipatory bail to any person who is allegedly connected
with the oﬀence in question, must for all practical purposes be considered
by the High Court of Gauhati within whose territorial jurisdiction such
activities could have been perpetrated. As we have noted above, this was
a general observation made by this Court and not a declaration of law
after due adjudication.
35.3. The Allahabad High Court in Anita Garg also noted that
there is no legislation or law which deﬁnes transit or anticipatory bail
in deﬁnitive or speciﬁc terms. Thereafter, the High Court proceeded to
explain the term ‘transit’ to mean the act of being moved from one place
to another. Since the expression ‘anticipatory bail’ means granting bail
to an accused person who is anticipating arrest, ‘transit anticipatory bail’
would refer to bail granted to any person who is apprehending arrest by
police of a state other than the state he is presently located in. On that
basis, Allahabad High Court explained ‘transit anticipatory bail’ to mean
582 SUPREME COURT REPORTS [2023] 15 S.C.R.

protection from arrest for a certain deﬁnite period. The mere fact that an
accused has been granted transit anticipatory bail does not mean that the
regular court under whose jurisdiction the case would fall, shall extend
such transit bail and convert the same into anticipatory bail. Therefore, the
Allahabad High Court held that upon the grant of transit anticipatory bail,
the accused person who has been granted such bail has to apply for regular
anticipatory bail before the competent court which would then consider
such a prayer on its own merits. Allahabad High Court has also held that
transit anticipatory bail is a temporary relief which an accused gets for
a certain period of time so that he can apply for anticipatory bail before
the regular court. In this connection, Allahabad High Court heavily relied
upon the decision of the Bombay High Court in Teesta Atul Setalvad.
In that case, Bombay High Court held that High Court of one State can
grant transit bail in respect of a case registered within the jurisdiction of
another High Court in exercise of the power under Section 438 of CrPC.
Bombay High Court was of the view that generally the power of a High
Court to grant anticipatory bail is limited to its territorial jurisdiction
and that the power cannot be usurped by disregarding the principle of
territorial jurisdiction. Having said that, the High Court emphasized that
temporary relief to protect liberty and to avoid immediate arrest can be
given by the Bombay High Court.
36. 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 CrPC 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
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 583
ETC. [B. V. NAGARATHNA, J.]

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 CrPC.
(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.
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 CrPC 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.
38. We therefore set aside the judgement of Patna High Court in Syed
Zafrul Hassan and judgment of Calcutta High Court in Sadhan Chandra
Kolay to the extent that they hold that the High Court does not possess
584 SUPREME COURT REPORTS [2023] 15 S.C.R.

jurisdiction to grant extra-territorial anticipatory bail i.e., even a limited or
transit anticipatory bail.
39. We shall now revert to our illustration given at the beginning of
this judgment. In the illustration, we have stated that if a person commits
an oﬀence in one State and the FIR is lodged within the jurisdiction where
the oﬀence was committed but the accused resides in another State he
can approach the Court in the other State and seek transit anticipatory
bail of limited duration. We have held that the accused could approach
the competent Court in the State where he is residing or is visiting for a
legitimate purpose and seek the relief of limited transit anticipatory bail
although the FIR is not ﬁled in the territorial jurisdiction of the District or
State in which the accused resides, or is present depending upon the facts
and circumstances of each case. 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.
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 CrPC
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
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 585
ETC. [B. V. NAGARATHNA, J.]

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.
42. While we so hold, we are conscious of the fact that the expression
High Court in Section 2(e) of the CrPC reads as follows: (i) in relation to
any State, the High Court for that State; (ii) in relation to a Union Territory
to which the jurisdiction of the High Court for a State has been extended
by law, that High Court; (iii) in relation to any other Union Territory, the
highest Court of criminal appeal for that territory other than the Supreme
Court of India. Section 6 of the CrPC states that besides the High Courts
and the Courts constituted under any law, other than the CrPC, there shall
be, in every State, inter alia, Courts of Session. Section 7 speaks about
territorial divisions. Sub-section (1) of Section 7 states that every State
shall be a sessions division or shall consist of sessions divisions; and every
sessions division shall, for the purposes of CrPC, be a district or consist of
districts. The proviso states that every metropolitan area shall be a separate
session division and district. Sub-section (1) of Section 9 states that the State
Government shall establish a Court of Session for every session division;
every Court of Session shall be presided over by a Judge, to be appointed
by the High Court; the High Court may also appoint Additional Sessions
Judges to exercise jurisdiction in a Court of Session and such Judges may
also sit in another division as may be directed by the High Court.
43. Section 26 of the CrPC deals with the Courts by which oﬀences
are triable which states that subject to the other provisions of the CrPC, any
586 SUPREME COURT REPORTS [2023] 15 S.C.R.

oﬀence under the IPC may be tried by (i) the High Court; (ii) the Court of
Session; or (iii) any other Court by which such oﬀence is shown in the First
Schedule to be triable. In case of oﬀences under any other law when any
Court is mentioned in this behalf in such law, being tried by such Court and
when no Court is mentioned may be tried by (i) the High Court; or (ii) any
other Court by which such oﬀence is shown in the First Schedule to be triable.
44. Further, on a reading of Section 438 of CrPC, we do not ﬁnd that
the expression “the High Court” or “the Court of Session” is restricted
vis-à-vis the local limits or any particular territorial jurisdiction. However,
this does not mean that if an FIR is lodged in one State then the accused
can approach the Court in another State for seeking anticipatory bail. He
can do so, if at the time of lodging of the FIR in any State, he is residing
or is present there for a legitimate purpose in any other State. In fact, on
a reading of Section 438 of CrPC, it does not emerge that the expression
“the High Court” or “the Court of Session” must have reference only to the
place or territorial jurisdiction within which the FIR is lodged. If that was
the implication, the same would have been expressly evident in the Section
itself or by a necessary implication. Further use of the word “the” before the
words “High Court” and “Court of Session” also does not mean that only
the High Court or the Court of Session, as the case may be, within whose
jurisdiction the FIR is ﬁled, is competent to exercise jurisdiction for the
grant of transit anticipatory bail.
45. At the same time, 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.
The need for such a provision is to secure the liberty of the individual
concerned. Since anticipatory bail as well as transit anticipatory bail are
intrinsically linked to personal liberty under Article 21 of the Constitution
of India and since we have extended the concept of access to justice to such
a situation and bearing in mind Article 14 thereof it would be necessary
to give a constitutional imprimatur to the evolving provision of transit
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 587
ETC. [B. V. NAGARATHNA, J.]

anticipatory bail. Otherwise, in a deserving case, there is likelihood of
denial of personal liberty as well as access to justice for, by the time the
person concerned approaches the Court of competent jurisdiction to seek
anticipatory bail, it may well be too late as he may be arrested. Needless to
say, the Court granting transit anticipatory bail would obviously examine
the degree and seriousness of the apprehension expressed by the person
who seeks transit anticipatory bail; while the object underlying exercise
of such jurisdiction is to thwart arbitrary police action and to protect
personal liberty besides providing immediate access to justice though
within a limited conspectus.
46. 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.
47. There can also be a case where the accused is facing multiple FIRs
for the same oﬀence in several States. He may seek an interim protection
from a particular Sessions Court or the High Court in a State. Does he have
to move from State to State for the purpose of seeking anticipatory bail or
seek multiple pre-arrest bails? We would not attempt to give an answer to
such a situation as the facts of the present case do not involve such a situation.
588 SUPREME COURT REPORTS [2023] 15 S.C.R.

48. Another issue that calls for reiteration is, whether, the ordinary
place of inquiry and trial would include the place where the complainant-
wife resides after being separated from her husband. The position of law
regarding the ordinary place of investigation and trial as per Section 177
of the CrPC, especially in matrimonial cases alleging cruelty and domestic
violence, alleged by the wife, has advanced from the view held in the
case of State of Bihar vs. Deokaran Nenshi, (1972) 2 SCC 890; Sujata
Mukherjee (Smt.) vs. Prashant Kumar Mukherjee, (1997) 5 SCC 30;
Y. Abraham Ajith vs. Inspector of Police, Chennai, (2004) 8 SCC 100,
Ramesh vs. State of T.N. (2005) 3 SCC 507; Manish Ratan vs. State of
M.P., (2007) 1 SCC 262 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. A three judge Bench of this Court has however
clariﬁed in Rupali Devi vs. State of U.P., (2019) 5 SCC 384 (Rupali Devi)
that adverse eﬀects on mental health of the wife even while residing in
her parental home on account of the acts committed in the matrimonial
home would amount to commission of cruelty within the meaning of
Section 498A at the parental home. It was held that the Courts at the
place where the wife takes shelter after leaving or being driven away
from the matrimonial home on account of acts of cruelty committed by
the husband or his relatives, would, depending on the factual situation,
also have jurisdiction to entertain a complaint alleging commission of
oﬀences under Section 498-A of the IPC.
49. Applying Rupali Devi, in view of the fact that the complainant-
wife herein claims to have received death threats and harassment over the
phone even after her return to her parental home in Chirawa, Rajasthan
the ordinary place of trial may be Chirawa. But in the present case by
the impugned orders, the accused-husband and his family members were
granted extra-territorial anticipatory bail without issuing notice to the
investigating oﬃcer and public prosecutor in Chirawa Police Station,
Rajasthan wherein the appellant had lodged the FIR. In view of the facts
and circumstances of the present case and the conclusion to the points
considered hereinabove, we allow and dispose of these appeals in the
following terms:
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 589
ETC. [B. V. NAGARATHNA, J.]

a. The impugned orders of the learned Additional City Civil and
Sessions Judge Bengaluru City do not take note of respondent
No.2 at all for allowing Criminal Misc. Nos. 3941/2022,
3943/2022, 3944/2022 and 3945/2022.
b. The impugned orders are hence set aside.
c. 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.
d. It is also directed that in case applications under Section 438 of
CrPC are made before the Court of Session in Chirawa or the
High Court of Rajasthan, the same shall be decided expeditiously
and on their own merits.
We place on record our appreciation for the valuable assistance
rendered by learned senior counsel and learned ASG, Sri Vikramjeet
Banerjee who has advanced submissions as an amicus curiae in this case
as also of other senior counsel and counsel who have appeared in this case.

Headnotes prepared by: Appeals disposed of.
Nidhi Jain