The expression, anticipatory bail is truly speaking a misnomer and the section contemplates not anticipatory bail but merely an order releasing an accused on bail in the event of his arrest. Anticipatory bail is provided under section 438[1] of the Criminal Procedure Code, 1973- “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…..”. It is clear from the word ‘anticipatory’ that the bail application could be moved in case a person anticipates his arrest in near future. The Applicant/Petitioner should have some tangible reason to believe such arrest.
Jurisdiction – Now the question arises, In which High Court or Court of Session the application for anticipatory bail can be moved? Generally, the application for anticipatory bail is moved/filed in the High Court or Court of Session within whose jurisdiction the cause of action arises or the offence has been committed or the case has been instituted. (For ex. P resides in Delhi and has reason to believe that he may be arrested on accusation of having committed a non-bailable offence in Pilibhit, Uttar Pradesh. P can file application for anticipatory bail in Sessions Court, Pilibhit or he can file the same before the Allahabad High Court, as these Courts have the concurrent Jurisdictions). Now, can P approach High Court of Delhi for anticipatory bail in case of some urgency? Yes, in Bail Application no. 547 of 2009, Hon’ble High Court of Delhi has granted ad interim anticipatory bail in the above scenario. There should be some valid reason for not approaching the correct judicial forum i.e. Allahabad High Court. In this case the reason was that the Uttar Pradesh Legislative assembly had omitted the Section 438 by Amendment of 1976. The Applicant was residing in Delhi and he had reason to believe that he may be arrested on the accusation of having committed a non-bailable offence.
The various judgements of various High Courts have held that the place of residence of the Applicant can also be taken into consideration for hearing the application for anticipatory bail. In B. R. Sinha & Ors. V. State (1981 Cal)[2], 2 Judges Bench of High Court of Calcutta held that Calcutta High Court has jurisdiction to entertain application for anticipatory bail of a petitioner who resides within the jurisdiction of that Court, though he apprehends arrest in connection with a case which has been started outside the jurisdiction of that Court. In this case the offence was registered in Jamshedpur, Bihar and the anticipatory bail was sought from High Court of Calcutta. The directions were made in this case that in the event of the petitioner being arrested in connection with the case pending before the Judicial Magistrate, Jamshedpur, Bihar, he will be produced before the learned Magistrate within whose jurisdiction he is arrested and the learned Magistrate will release him on bail on condition that within two weeks of such release, he would surrender himself before the appropriate Court in connection with the aforesaid case.
A bare perusal of the Section reveals that no restrictions for grant of anticipatory bail have been imposed in Section 438(1) for exercise of jurisdiction by that High Court or Court of Sessions within whose territorial jurisdiction a person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence. The words “High Court or Court of Session” nowhere says which High Court or which Court of Session. Analogy could be drawn from section 80 and 81 which confer power on a Court to release on bail an accused who has been arrested in connection with a case outside the jurisdiction of that Court. If such Courts can entertain applications for bail and in proper cases can release an arrested person on bail, there is absolutely no reason why appropriate orders on an application for anticipatory bail cannot be made. In the case of Gurbaksh Singh Sibbia v. State of Punjab (1980 SC)[3] their Lordships have not found any restriction in Section 438 which debars other High Court from entertaining an application for anticipatory bail in connection with a case started in a Court outside the jurisdiction of that High Court. It has been further held that discretion has been left completely with the High Court or the Court of Session as these are superior Courts.
Transit Bail – In Sailesh Jaiswal vs. The State of West Bengal and Ors. (1998 – CAL)[4] the Calcutta High Court observed that where any person has reason to believe that he is likely to be arrested on an accusation of having committed a non-bailable offence, he may either approach the High Court or Court of Sessions for a direction that in the event of arrest he shall be released on bail. Therefore, on a plain reading of the provision, it speaks that the person allegedly accused of an offence must satisfy the court to which he approached that there are strong reasons that he may likely be arrested for non-bailable offences. In support of such belief, he must place sufficient material so that the court would be in a position to form its opinion whether to grant or to refuse anticipatory bail. In case, either the High Court or the Court of Sessions on reference of material produced before it thinks that there is likelihood of a person being arrested in a non-bailable offence, it could grant anticipatory bail directing such person to be released on execution of bond or by imposing any other condition which the arresting officer deems it, just and proper. After such person being released on anticipatory bail by the arresting officer, the accused person within reasonable time but in no case beyond 24 hours of arrest shall appear before the court within the Jurisdiction of which he ordinarily resides. Either the Magistrate, Chief Judicial Magistrate or the Court of Sessions upon consideration of the material placed by the arresting officer and on hearing the Public Prosecutor of the locality in which the offences alleged to have been committed shall pass an appropriate order regarding regular ball under section 81 of the Code of Criminal Procedure. The exercise of Jurisdiction of anticipatory ball by any other court namely the High Court or the Court of Sessions beyond the local limits of the Jurisdiction is limited to the extent of consideration of a bail for the transitional period but it has no jurisdiction to transgress into the limits of the local Jurisdiction of the court within which offence is alleged to have been committed.
The Courts exercising extra-territorial jurisdiction while dealing with the application for anticipatory bail have the power to put any reasonable condition while granting transit bail or bail for transit period. In Bidya Bhusan Mohanty vs. State of Orissa and Ors. (2007 ORI)[5] the Petitioner was residing in Orissa and had allegedly committed offence within the jurisdiction of the Rajasthan. The Petitioner was directed by the High Court of Orissa to surrender before the learned C.J.M., Jaipur City in connection with the case within a period of six weeks from the day of the order and move for appropriate bail. During this transit period if the petitioner is arrested, he shall be released on bail by the arresting officer on furnishing bond of Rs. 10,000/- (Rupees ten thousand) with one surety for the like amount to the satisfaction of the arresting officer.
Jurisdiction has to be seen from the point of cause of action. Earlier, only the place of offence was taken to be the cause of action. But it can be seen from various judgements that place of residence where arrest is anticipated can also be taken to be as occurrence of cause of action. Thus, any person who has a reason to believe that he may be arrested for any accusation of non-bailable offence should approach the High Court or Court of Sessions within whose jurisdiction the offence has been said to be committed. But such person can also approach the High Court or Court of Sessions within whose jurisdiction the person is residing and has a reason to believe that he might be arrested for any accusation. This reason should be tangible and should be proved sufficiently before the concerned Court. The last thing is that the High Court or Court of Session exercising extra-territorial jurisdiction in allowing anticipatory bail could only grant it for a limited purpose and period. It is to be noted that the issue of jurisdiction related to this provision has not yet been settled by the Supreme Court.
