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2001 DIGILAW 920 (AP)

N. Surya Prakash Rao v. State of Maharashtra

2001-08-21

T.CH.SURYA RAO

body2001
T. SURYA RAO, J. ( 1 ) THE petitioner who is A-1 in the Crime number 95/2001 at Omega Police Station in maharashtra State and the petitioners who are A-2 and A-3 in the Crime Number 827/ 2000 of Tilaknagar Police Station at New delhi in both the above petitions respectively seek anticipatory bail. ( 2 ) NOTWITHSTANDING the cleavage of opinion expressed by various High Courts in the country, conscious of the fact that a division Bench of this Court very recently in mathews Peter v. State of Maharashtra adverted to the same and adjudicated the baffling question that it is the place of offence is the criterion that determines the jurisdiction for moving an anticipatory bail but not the place of residence of the seeker and the said judgment being a binding precedent, the petitioners now limited their prayer to an ad interim anticipatory bail for a limited period so as to enable them to approach the appropriate High Courts. ( 3 ) A short but seminal question that falls for determination is as to whether an interim anticipatory bail can be granted to the petitioners herein for a limited period while directing them to approach the appropriate court seeking anticipatory bail. ( 4 ) NEEDLESS to mention the factual matrix as these petitions can effectively be adjudicated on jurisdictional point without the same. Equally there is no need to have a fresh look at the provisions in the Code of criminal Procedure germane in the context for consideration nor it is advisable to resort to such an exercise in view of the Division bench Judgment of this Court referred to supra. Reliance in this regard has been sought to be placed by Sri D. Hanumanth Rao, learned Counsel for the petitioners upon the judgment of this Court in M. R. Vijaya Kumar v. State of A. P. where in it has been held that no blanket order of anticipatory bail is desirable to be granted and the order in such circumstances may be limited to a reasonable time to enable the party to move an appropriate Court. Reliance has also been placed upon the judgments in Neela J. Shah v. State of Gujarat and in Sachindra Mahawar and others v. State of Madhya Pradesh and another. It is, therefore, appropriate here to except the ratio enunciated in the two decisions referred to supra. Reliance has also been placed upon the judgments in Neela J. Shah v. State of Gujarat and in Sachindra Mahawar and others v. State of Madhya Pradesh and another. It is, therefore, appropriate here to except the ratio enunciated in the two decisions referred to supra. The Madhya Pradesh High Court in Sachindra Mahawar s case held at page 447 thus:- "in view of the foregoing discussion, i am of the considered view that an order can be passed by the Court where arrest is apprehended by the accused to pass an ad interim order with a direction to move the competent Court where the offence has been registered or committed. This appears to be a balanced view and would be within the parameters of law. " the Gujarat High Court in Neela J Shah s case (3 supra) at page 265 held thus:- "in such circumstances, there re chances of misuse of provisions of Sec. 438, there are instances where parties have abused the provisions under Section 438 by obtaining anticipatory bail from the courts within whose territorial jurisdiction the offence has not been committed. However, it cannot be denied that if an urgent order is not immediately passed by the Court, whose territorial jurisdiction within which he apprehends arrest, a citizen may be denied of statutory remedy under Sec. 438. In view of this only balanced view which can be taken is that the Court of Sessions or the High court within whose jurisdiction one ordinarily resides, may apply for anticipatory bail and the same may be entertained by the said Court only with a view to provide an immediate relief so as to enable him to approach the Court of sessions or the High Court within whose territorial jurisdiction the offence alleged to have been committed. Thus, an application under Sec. 438 Cr. P. C. should be finally decided only by the Court within whose territorial jurisdiction the alleged offence has been committed. The court entertaining application for anticipatory bail at the first instance which does not have the territorial jurisdiction can give protection only for a brief period on adequate condition with a view to enable the person apprehending arrest to approach the Court within whose territorial jurisdiction the offence alleged to have been committed. The court entertaining application for anticipatory bail at the first instance which does not have the territorial jurisdiction can give protection only for a brief period on adequate condition with a view to enable the person apprehending arrest to approach the Court within whose territorial jurisdiction the offence alleged to have been committed. " ( 5 ) IT admits of no doubt that the locale or domicile of the accused has no relevance except the place of offence, which gives the necessary jurisdiction. This inherent limitation of territorial jurisdiction cannot be surmounted by any high-flown doctrinaire considerations. When that principle is unassailable, by resorting to a balanced approach, is it permissible to assume jurisdiction keeping aside the accepted principle of territoriality so as to give a respite to the seeker to enable him to approach the appropriate High Court, lest it would tantamount to denial of right conferred under section 438 of the Code of Criminal procedure. Be it a relief to be granted at the end on merits in an application seeking anticipatory bail or be it an interim relief to be granted for a limited period so as to enable the party ultimately to approach the appropriate Court, the basic principle of territoriality remains the same. Such an interim order becomes automatically an order having been passed without the necessary jurisdiction. ( 6 ) THERE can be no gainsaying that an ad interim anticipatory bail can be granted by the Court even without issuing notice to the public Prosecutor pending consideration of the petition on merits in view of a three judge bench of the Apex Court in Balchand v. State of M. P. , and the authoritative pronouncement of the Constitution Bench of the Apex Court in Gurbaksh Singh v. State of punjab. The contention that if the necessary interim relief is not granted to the seeker when he approaches the Court on the premise of urgency, it would amount to denial of his right, cannot be a legitimate answer to the question of territorial jurisdiction. Such an approach, in my considered view, will open the floodgates and on the premise of urgency and to give the necessary respite the seekers should not be encouraged to approach a wrong forum in the first instance. Such an approach, in my considered view, will open the floodgates and on the premise of urgency and to give the necessary respite the seekers should not be encouraged to approach a wrong forum in the first instance. One should not be oblivious of the fact that he is seeking anticipatory bail in apprehension of his arrest and at that moment his liberty is not curtailed nor it is a case where he is already in judicial custody and any delay in approaching the appropriate forum might further detain him in custody, which can otherwise be avoided. ( 7 ) THE principles germane for consideration for granting anticipatory bail are equally relevant even in the cases where interim anticipatory bail is to be granted, in view of the Judgment of the Apex Court in gurbaksh Singh s case (6 supra ). In para 38 (at page 1649 of AIR), it has been held thus: "the ad interim order too must conform to the requirements of the section and suitable conditions may be imposed on the applicant even at that stage. " ( 8 ) THEREFORE, the Sessions Court or the high Court, as the case may be, which lacks territoriality, cannot address itself to such considerations legitimately. Furthermore, it is not permissible to have a glance at the factual matrix to come to a reasonable conclusion that the situation warrants such an interim anticipatory bail to be granted even for a limited period for want of jurisdiction. ( 9 ) FOR the foregoing reasons, with due respects, I am not able to persuade myself to concur with the theory of balanced approach enunciated by Gujarat and Madhya Pradesh high Courts referred to supra. Hence, the request of the petitioners herein for interim anticipatory bail even for a limited period cannot be considered. In the result, both these Criminal Petitions are, therefore, dismissed.