S.P. Shanthi Swaroop vs State of Tamil Nadu

Janarthanam, J.—The petitioners in all these applications filed u/s 438 Crl.P.C., who have been accused of commission of non-bailable

offences committed beyond the territorial limits of the State of Tamil Nadu have come forward with a prayer for grant of either anticipatory bail or

for interim anticipatory bail for a period limited in duration so as to enable them to move the proper High Court for getting bail or for extension of

time of anticipatory bail granted earlier by this Court.

Entertaining a doubt as to whether this Court has any power u/s 438 Crl.P.C. to grant anticipatory bail, irrespective of the locale of the

commission of the offences, all these applications had been pooled together and a date was fixed for advancing arguments on the vital question of

importance, even by inviting Members of the Bar, if any, interested in advancing arguments on this question.

Learned Senior Counsel Thiru N.T. Vanamamalai took great pains and advanced elaborate arguments by expounding and expatiating relevant

provisions of the Code of Criminal Procedure, namely, Sections 177, 178, 181, 437, 438, and 439 of the Code of Criminal Procedure, besides

touching upon the salient provisions of the Constitution adumbrated in Articles 214 and 225 thereof and submitting all the authorities on this point.

In pith and substance, what he would submit is that any Court of Session or any High Court is having the necessary power to grant anticipatory

bail, even in respect of offences committed beyond the territorial jurisdiction of the State, if the offender resides or chooses to reside beyond the

territorial limits of the place where the offence is committed and in case he apprehends arrest, that alone is sufficient for the Court of Session or the

High Court of the State, where he happened to resident that particular point of time to exercise this power. In support of this contention, reliance is

sought to be placed on decisions rendered by galaxy of learned Judges of this Court for well over a decade, getting reflected in various Criminal

Miscellaneous Applications, namely, Crl. M.P. No. 2586 of 1976, Crl. M.P. No. 6670 of 1977, Crl. M.P. No. 2375 of 1978. Crl.M.P. No.

1509 of 1980, Crl. M.P. No. 3168 of 1980, Crl. M.P. No. 5373 of 1980. Crl. M.P. Nos. 6378 and 6379 of 1988. He would further urge that

this sort of consistent practice hitherto followed by this Court in this regard acquires the status of the rule of law to be followed and in support of

this contention, he would place reliance on the following passage contained at page 414 of the book N.S. Bindra''s ""The Interpretation of Statutes

Seventh (1984) Edition:

Statute silent: Where the statute speaking on some points is silent as to others, usage may well supply the defect especially if it is not inconsistent

with the statutory directions, where any are given; or where the statute uses a language of doubtful import, the acting under it for a long course of

years may well give an interpretation to that obscure meaning, and reduce that uncertainty to a fixed rule: optimus legis interpres consuctudo, which

is sometimes termed contemporanea exposition; and where you can carry back the usage for a century and have no proof of a contrary usage

before that time, you fairly reach the period of contemporanea expositio.

Learned Counsel also relied upon the decisions of the various other High Courts, namely Andhra Pradesh, Bambay and Calcutta, which had

taken the view in tune with the view expressed by this Court and they are:

(1) M.R. Vijaya Kumar v. State of Andhra Pradesh 1988 Cri.L.J. 14.

(2) N.K. Nayar and Others etc. Vs. State of Maharashtra and Others, .

(3) B.R. Sinha and Others Vs. The State,

Counsel would also place implicit reliance on the passage contained in paragraphs 11 to 13 of the decision of the Supreme Court in Shri

Gurbaksh Singh Sibbia v. The State of Punjab 1980 L.W. (Crl.) 135 and contended that the untramelled powers of Court of Session and High

Court can by no stretch of imagination be curtailed or restricted by certain dogmatic principles.

Counsel in all fairness had never failed to draw my attention to the contrary view holding this field getting reflected in the following decisions:

(1) Gurbaksh Singh Sibia Vs. State of Punjab, .

(2) Ravinder Mohan Bakhshi and Another Vs. State of Puniab and Others, and

(3) Syed Zafrul Hassan and Another Vs. State, .

The aforesaid arguments of the learned Senior Counsel Thiru N.T. Vanamamalai have been adopted by other Counsel as well as other

Members of the Bar, who were present in Court on that day.

Learned Additional Public Prosecutor would couch his submissions on the following points:

(1) Catena of decisions of this High Court, besides the decisions of the High Courts of Andhra Pradesh, Bombay and Calcutta, as relied upon by

the other side, cannot at all be stated to have Laid down the law on the point by considering various relevant provisions in the Code of Criminal

Procedure as well as other statutes and relevant provisions of the Constitution and those decisions simply assume jurisdiction in respect of offences

committed beyond the fronteers of the geographical limits of a particular State.

(2) The Full Bench decision of the Patna High Court considered the question in all its ramifications by considering the various provisions of the

Code of Criminal Procedure, the provisions under the General Clauses Act and the Constitution of India and Laid down the law on the point;

Though the Supreme Court in Shri Gurbaksh Singh Sibbia''s case 1900 L.W. (Crl.) 135 set aside the judgment of the Full Bench of the High Court

of Punjab and Haryana, which Laid down various propositions as guiding principles for grant of anticipatory bail u/s 438 Crl.P.C. yet it cannot be

taken for granted that the decision can in any way lend credence to the concept of the extra-territorial jurisdiction of the High Court or a Court of

Session for grant of anticipatory bail, in view of the fact that the occurrence in that case took place within the jurisdiction of Punjab and Haryana

High Court.

On the face of the definition contained in Section 2(g) Crl.P.C. regarding ''inquiry'' and the express and explicit provision regarding the place

where the inquiry and trial are to take place as contained in Section 177 Crl.P.C., it goes without saying that the power exercisable by any Court

of Session or High Court u/s 438 Crl.P.C. cannot be extended to a Court of Session or High Court, within whose local jurisdiction, the offence

was not committed;

The consistent practice hitherto adopted by this Court for well over a decade granting anticipatory bail as contended by the other side in respect

of offences committed extra-territorially assuming the jurisdiction in the exercise of such a power to acquire the sanctity of rule of law, signal

absence of provisions in the statute must be there and on the face of the express provisions contained in Sections 2(g) and 177 of the Code of

Criminal Procedure High Court or Court of Session will be having power to entertain an application for anticipatory bail only in respect of offence

committed within the territorial jurisdiction of the State; and

Every litigant is entitled, as of right, to have a Counsel of his choice and the State Government, being also a litigant, is not an exception, in not

having a Counsel of its choice and therefore it is that Section 24 of the Code of Criminal Procedure empowers the State as well as the Central

Government, in accordance with the procedure mentioned therein, to have a Public Prosecutor of their choice in the High Court as well as in the

district headquarters in the Court of Session and in such state of affairs, in respect of the offence committed outside the territorial jurisdiction of the

State, in a bail application filed u/s 438 Crl.P.C. in any High Court or Court of Session, the plausibility of the Public Prosecutor of the State not

appearing before the Court before which such an application came up for inquiry by not having an opportunity of making a representation for and

on behalf of his client, namely, the State is there.

On the face of the rival submissions on the extra-territorial jurisdiction of High Court or Court of Session with regard to the exercise of power

u/s 438 Crl.P.C. and in the absence of an authoritative pronouncement of a Division Bench or by the apex of the judicial administration of this

country, on this vital and important question of law affecting day-to-day life of the citizen of the country, it is better to have an authoritative

pronouncement on this point by a larger Bench of this Court. Therefore it is that the Registry is directed to place these papers before My Lord, the

Honourable the Chief Justice, for referring the matter to a larger Bench for an early decision so as to avoid any inconvenience being caused to the

litigant public as well as the Members of the Bar.

ORDER

K.M. Natarajan, J.

These applications were posted before us on a reference made by Janarthanam, J. The question which was referred to us is, whether this

Court or the Court of Session has got power u/s 438 Cr.P.C. to grant anticipatory bail in respective of the locale of the commission of the offences

and in particular in respect of persons who have been accused of commission of non-bailable offences beyond the territorial limits of the State of

Tamil Nadu. The learned single Judge entertained doubt in view of the rival submissions made by both the parties with regard to the said question

with reference to case-laws and felt that it is better to have an authoritative pronouncement on this point by a larger Bench. Hence this reference

came up before us.

On behalf of the petitioners, the learned Senior Counsel Mr. N.T. Vanamamalai advanced elaborate arguments by inviting our attention to the

relevant provisions of the Code of Criminal Procedure and the Articles of Constitution of India and the Case-laws. According to the learned

counsel, any court of Session or any High Court is having the necessary power to grant anticipatory bail, even in respect of offences committed

beyond the territorial jurisdiction of the State if the offender resides or chooses to reside beyond the territorial limits of the place where the offence

is committed and in case he apprehends arrest, that alone is sufficient for the Court of Session or the High Court of the State, where he happened

to reside at that particular point of time to exercise this power. The learned counsel invited the attention of this court to the relevant provision as

regards bail, namely, Sections 436, 437, 438 and also 439 Cr.P.C. and submitted that in none of the sections anything is mentioned about the

place where the offence is committed. But, the only stipulation is that where the person accused or suspected to have committed the offence,

bailable or non-bailable offence appears or is brought before a court, the Court is empowered to grant bail. It is nowhere stipulated that the

offence must have been committed within the jurisdiction of the said court.

The learned counsel drew the attention of this court to Sections 177 and 178 Cr.P.C. which deal with the jurisdiction of the criminal courts in

enquiries and trials. He submitted that as per Section 177 Cr.P.C. every offence shall ordinarily be enquired into and tried by a Court within whose

local jurisdiction it was committed. The learned counsel also pointed out that it is clear from those provisions that the offence can be enquired into

or tried by a Court having jurisdiction over the place other than the one where the offence was committed and as such, it is not an absolute rule that

in all circumstances, enquiry or trial should be held within the local jurisdiction wherein the offence was committed. The learned counsel also drew

the provisions dealing with arrest of accused, and submitted that as per Section 77 Cr.P.C. a warrant of arrest may be executed at any place in

India Sections 78 and 79 deal with execution of warrant outside jurisdiction. They provide that the Court may forward the warrant to any

Executive Magistrate or District Superintendent of Police or Commissioner of Police within the local limits of whose jurisdiction it is to be executed

and they in turn shall cause it to be executed in the manner provided. When a warrant directed to a police officer is to be executed, he shall

ordinarily take it for endorsement either to an Executive Magistrate or to a police officer not below the rank of an officer in charge of a police

station, within the local limits of whose jurisdiction the warrant is to be executed. As per Section 80 Cr.P.C. the person arrested outside the

jurisdiction shall be taken before such Magistrate or District Superintendent or Commissioner within whose jurisdiction he was arrested. Section

81 deals with power of the said magistrate to release him on bail in case of bailable offence and if bail is offered and in case of non-bailable

offence, the Chief Judicial Magistrate or the Sessions Judge of the district in which the arrest is made is empowered to release such person on bail.

Thus, in case of arrest of an accused outside jurisdiction, the Magistrate who is having jurisdiction over the place is empowered to release him on

bail in bailable cases and in case of non-bailable offence, the Chief Judicial Magistrate or the Sessions Judge is empowered to do so. u/s 167 (2)

Cr.P.C. the magistrate to whom an accused person is forwarded u/s 167 Cr.P.C. for remand, whether he has or has not jurisdiction to try the

case, may authorise the detention of the accused in such custody as such Magistrate thinks fit for a period of fifteen days. In all such cases when

the accused is arrested, in view of provisions of Ss.77 to 81, 167 Cr.P.C. the magistrate in whose jurisdiction the accused is arrested is

empowered to deal with as in the case of the magistrate having jurisdiction for enquiry and trial of the case. As per Article 21 of the Constitution of

India, no person shall be deprived of his life or personal liberty except according to procedure established by law and Article 22(2) every person

who is arrested and detained in custody shall be produced before the nearest magistrate within a period of 24 hours of such arrest excluding the

time necessary for the journey from the place of arrest to the Court of the Magistrate and no such person shall be detained in custody between the

said period without the authority of the magistrate. The personal liberty of the person is the important criterion and it is seen from the Constitution

of India that no person arrested shall be detained for more than 24 hours and irrespective of the jurisdiction of the magistrate to try or enquiry into

the offence, he should be produced before the nearest magistrate within 24 hours, the learned counsel appearing for the petitioner submitted that if

the place where the accused is sought to be arrested or there was a threat of arrest is in a place outside the jurisdiction, unless the Sessions Judge

or the High Court which is having jurisdiction over that place, is empowered to exercise the jurisdiction u/s 438 Cr.P.C. the liberty of the person is

very much affected and even in that view, it has become necessary to those courts to exercise the power u/s 438 Cr.P.C. In this connection the

learned counsel drew the attention of this court to the scope and object of Section 438 Cr.P.C. which has been elaborately dealt with in Shri

Gurbaksh Singh Sibbia and Others Vs. State of Punjab, it was observed:

Any order of bail can, of course, be effective only from the time of arrest because, to gram bail, as stated in Wharton''s Law Lexicon, is to ''set at

liberty a person arrested or imprisoned, on security being taken for his appearance''. Thus, bail is basically release from restraint, more particularly,

release from the custody of the police. The act of arrest directly affects freedom of movement of the person arrested by the police, and speaking

generally, an order of bail gives back to the accused that freedom on condition that he will appear to take his trial.

XX XX XX

The distinction between an ordinary order of bail and an order of anticipatory bail is (sic).

whereas the former is granted after arrest and therefore means release from the custody of police, the latter is granted in anticipation of arrest and

is therefore effective at the very moment of arrest.

XX XX XX

An order of anticipatory bail constitutes, so to say, an insurance against police custody following upon arrest for offence or offences in respect of

which the order is issued. In other words, unlike a post-arrest order of bail, it is a pre-arrest legal process which directs that if the person in whose

favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. S.46(1), Cr.P.C.,

which deals with how arrests are to be made, provides that in making the arrest, the police officer or other person making the arrest ""shall actually

touch or confine the body of the person lobe arrested, unless there be a submission to the custody by word or action."" A direction under S. 438 is

intended to confer conditional immunity from this ''touch'' or confinement.

XX XX XX

It has to be borne in mind that anticipatory bail is sought when there is a mere apprehension of arrest on the accusation that the applicant ""has

committed a non-bailable offence. A person who has yet to lose his freedom by being arrested asks for freedom in the event of arrest. That is the

stage at which it is imperative to protect his freedom, in so far as one may, and to give full play to the presumption that he is innocent.

XX XX XX

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.

It has also been Laid down in the said decision that ""The legislature has conferred a wide discretion on the High Court and the Court of Session to

grant anticipatory bail, because it evidently felt, firstly, that it would be difficult to enumerate the conditions under which anticipatory bail should or

should not be granted and secondly, because the intention was to allow the higher Courts in the echelon a somewhat free hand in the grant of relief

in the nature of anticipatory bail."" It was also observed, ""Anticipatory bail is a device to secure the individual''s liberty; it is neither a passport to the

commission of crimes nor a shield against any and all kinds of accusations likely or unlikely."" The Full Bench decision of the Punjab and Haryana

High Court reported in Gurbaksh Singh Sibia Vs. State of Punjab, was set aside. In this connection, the learned counsel submitted that this Court

uniformly granted anticipatory bail in cases where the commission of offence was outside the jurisdiction and the person sought to be arrested

resides within the jurisdiction of this court and that this procedure is being adopted well over a decade in various cases in Crl.M.P. Nos. 2586 of

1976, 6670 of 1977, 2375 of 1978, 1509 of 1980, 3168 of 1980, 5373 of 1980 and 6378 and 6379 of 1988. It is worthwhile to quote the

decision of Ratnavel Pandian, J. (as he then was) in Crl.M.P.No.5373 of 1980. After referring to the decision of the Supreme Court in Shri

Gurbaksh Singh Sibbia and Others Vs. State of Punjab, , the learned Judge observed:

Having regard to the scope and application of Section 438, Cr.P.C as pointed out by the Supreme Court in the above decision and the

observation made by the Andhra Pradesh High Court in Crl.M.P. No. 559 of 1979 and to the fact that this Court had on many similar occasions

exercised the discretionary powers and granted anticipatory bail relating to the offences registered outside the State of Madras, I feel that the

Petitioners herein are entitled to move this Court for anticipatory bail, they being residents of the Metropolitan City of Madras and entertaining

apprehension that they may be arrested on the accusation of having committed a non-bailable offence.

In the above quoted case, the learned Judge directed that the petitioners, in the event of their arrest or on their appearance before the Chief

Metropolitan Magistrate, Madras, be released on bail on each of the petitioners executing a bond for a sum of Rs. 10,000/- with two sureties for a

like sum each to the satisfaction of the officer or the Court concerned and this anticipatory bail will be in force only for a period of three weeks

from to-day, that is, upto 30th day of October, 1980 subject to a condition that the petitioners surrender their passports, if any, possessed by them

before the Chief Metropolitan Magistrate, Egmore, Madras. The petitioners should also give an undertaking that they will not hamper the

investigation in any manner."" It was further observed that ""It is open to the petitioners to get any further relief in the proper forum, if they are so

advised, within the time granted by this Court."" The same learned Judge has passed similar order and granted anticipatory bail in Crl.M.P. No.

3168 of 1980.

In Sub Inspector of Police v. M.N. Abdul Azeez 1989 L.W.(Crl.) 133 Bhaskaran, J. held

On a consideration of these decisions, it is clear that this Court as well as the Sessions Court has got jurisdiction to grant anticipatory bail if the

threat of arrest is within the jurisdiction of that court, notwithstanding the fact that the alleged offence has taken place within the jurisdiction of

another High Court. Normally when the offence is alleged to have taken place outside the jurisdiction, for proper investigation, this Court ""gives

only interim anticipatory bail directing the parties to move the concerned Court for regular anticipatory bail.

The learned counsel for the petitioner submitted that even after the Reference made to the Bench of this Court, this court is uniformly adopting

and similar procedure and granting anticipatory bail in cases where the offence was committed outside the jurisdiction of this court and when the

accused apprehended arrest at the hands of police. He would further urge that this sort of consistent practice hitherto followed by this court in this

regard acquires the status of the rule of law to be followed and in support of this contention, he would place reliance on the following passage

contained at page 414 of the book N.S. Bindra''s ""The Interpretation of Statutes"", Seventh (1984) Edition:

Statute silent: - Where the statute speaking on some points is silent as to others, usage may well supply the defect especially if it is not inconsistent

with the statutory directions, where any are given; or where the statute uses a language of doubtful import, the acting under it for a long course of

years may well give an interpretation to that obscure meaning, and reduce that uncertainty to a fixed rule: optimus legis interpres consuctudo, which

is sometimes termed contemporanca expositio; and where you can carry back the usage for a century and have no proof of a contrary usage

before that time, you fairly reach the period of contemporanea expositio.

In this connection, the learned counsel for the petitioners relied on the decisions of other High Courts, viz. Andhra Pradesh, Bombay, Calcutta,

Kerala and Karnataka which have also taken the view in tune with the view expressed by this Court. In N.K. Nayar and Others etc. Vs. State of

Maharashtra and Others, the Bombay High Court held as follows:

In view of this position, we intend to exercise our powers u/s 438 of the Code of Criminal Procedure by granting anticipatory bail for a period of

one month i.e. till the end of 12th April 1985 so as to enable the applicants in both the applications to move appropriate Courts for seeking

appropriate orders. It is made specifically clear that this anticipatory bail shall stand automatically vacated and cancelled on 13th April, 1985 in the

intervening period no orders about the grant of bail from the appropriate Courts (i.e. the courts where cases are likely to be filed) are obtained. In

the event of arrest of the applicants in the territory of this State each of the applicants be released on bail upto 12th April, 1985 on each of them

executing a personal recognizance bond of Rs. 2,000/- and a surety in the like amount.

In L.R. Naidu v. State of Karnataka 1984 Cri.L.J. 757, the Karnataka High Court held:

Section 438 provides relief to person apprehending arrest. A beneficial provision like ""S.438, is required to be considered in favour of the citizen.

There is nothing in the provisions of S.438, suggesting that it is only the High Court or the Sessions Court within whose jurisdiction, the case

against the person apprehending arrest is registered that can grant bail. Therefore, the person apprehending arrest can seek bail in the High Court

or the Sessions Court within whose jurisdiction, he ordinarily resides even though the offence in respect of which arrest is apprehended and case

has been started was committed outside the jurisdiction of that Court (in another State).

Reliance was placed on the decisions of Calcutta and Delhi High Courts. In B.R. Sinha and Others Vs. The State, wherein a Division Bench of the

Calcutta High Court held:

Considering the provisions Laid down in S.438 of the Code and the principles of law with regard to anticipatory bail explained by their Lordships

in Shri Gurbaksh Singh Sibbia and Others Vs. State of Punjab, and also considering the view taken by at least three Division benches to the case

referred to above, we are of the opinion that this Court has jurisdiction to entertain application for anticipatory bail of a petitioner who resides

within the jurisdiction of the Court, though he apprehends arrest in connection with a case which has been started outside the jurisdiction of this

Court.

In Pritam Singh v. State of Punjab 4, the petitioner was a resident of and carried on business in Delhi and a first information report was registered

against him in the Punjab. In this connection, the Delhi High Court held:

The petitioner is apprehending arrest at Delhi. Prima facie, therefore, this Court has jurisdiction to grant him not only interim bail but to confirm the

same within the purview of S.438 of the Cr.P.C.

It was also observed:

As noticed above, the business premises of the petitioner are situate A1 Delhi. It is not the case of the prosecution that the petitioner has any other

sub-office in the State of Punjab.

In C.T. Mathew and Another Vs. Govt. of India, Home Dept. (C.I.B.) and Others, the Kerala High Court, in the light of the decision of the

Supreme Court in Shri Gurbaksh Singh Sibbia and Others Vs. State of Punjab, and other decisions held:

The anticipatory bail is a pre-arrest legal process closely linked with an offence or crime. If arrest is sought to be prevented, the place where the

arrest is effected gives reasonable nexus for the exercise of jurisdiction under S.438. The High Court or the Sessions Court within whose

jurisdiction the arrest is sought to be effected can naturally have jurisdiction to decide whether it thinks fit to grant anticipatory bail. The arrest is

made with reference to a crime at the behest of the Police or the Magistrate within whose jurisdiction the offence is alleged to have been

committed. Thus the Court within whose jurisdiction the offence is alleged to have been committed is a Court competent to grant anticipatory bail.

The anticipatory bail granted by the High Court or Sessions Court within whose jurisdiction the offence is committed will enure beyond the

territorial limits of that Court as the arrest sought to be made is with reference to that specific crime or offence and the police can pursue the

offender beyond its jurisdiction to enforce the arrest. In granting anticipatory bail in a State where the applicant is sought to be arrested the High

Court naturally has to restrict the relief and direct that in the event of the applicant''s arrest in that State he will be released on certain conditions but

the High Court will not extend relief to arrests made beyond that State. In this view, residence of the accused may not be relevant factor to fix

jurisdiction for grant of anticipatory bail. When S. 438 postulates freedom from arrest, it is the place of arrest and the commission of offence for

which arrest is made that should provide the answer to identify the Court which can grant relief. Accordingly, the High Court of the State within

which the offence is committed or the arrest is sought to be made can grant anticipatory bail under S.438 but while in the former case the bail will

enure also to arrest ""made beyond the State, the latter case the High Court will have to restrict the relief of anticipatory bail to arrests made within

that State. The mere residence of the offender within the State will not by itself give jurisdiction to the High Court of that State to grant anticipatory

bail under S.438.

In N.K. Nayar and Others etc. Vs. State of Maharashtra and Others, the Bombay High Court held:

The real cause for making an application under S.438 is the contemplated arrest of person. If this arrest is likely to be effected within the

jurisdiction of a particular High Court, the concerned person has the remedy of applying to that High Court for anticipatory bail even if the offence

might have been committed in some other State. B.R. Sinha and Others Vs. The State, Calcutta, relied on.

In M.R. Vijaya Kumar v. State of A.P. 1988 Cri.L.J. 14 the Andhra Pradesh High Court accepted the view taken in N.K. Nayar and Others etc.

Vs. State of Maharashtra and Others, Having regard to the scope of application of Section 438 Cr.P.C. as pointed out by the Supreme Court

supra and the subsequent decisions of the various High Courts including the Madras High Court and the relevant provisions of Cr.P.C., we are of

the view that anticipatory bail can be moved in this court if the threat of arrest is within the jurisdiction of this court, notwithstanding the fact that the

alleged offence has taken place within the jurisdiction of another High Court. But, as rightly observed by the Kerala High Court in C.T. Mathew''s

case quoted supra, in granting anticipatory bail in a State where the applicant is sought to be arrested, the High Court has to restrict the relief and

direct that in the event of the applicant''s arrest in that State, he will be released on certain conditions, so as to enable him to move the concerned

Court and obtain necessary orders and also make the petitioner available for interrogation by the concerned police in the meantime.

The only contra decision brought to our notice is the one reported in Syed Zafrul Hassan and Another Vs. State, where a Full Bench held:

Section 438 of the Code does not permit the grant of anticipatory bail by any High Court or any Court of Session within the country where the

accused may choose to apprehend arrest. Such a power vests only in the Court of Session or the High Court having jurisdiction over the locale of

the commission of the offence, of which the person is accused. Question of residence of accused is irrelevant in such a case.

The first reason given by the Full Bench is that the phraseology employed in Section 438 Cr.P.C. is ""the High Court"" or ""the Court of Session"" and

the Code does not say ""any High Court"" or ""any Court of Session"" and as such the inherent limitations of territorial jurisdiction cannot be

overridden by any highflown and doctrinaire considerations. We are unable to agree with the said reasoning as in Section 436 Cr.P.C. the word

used is ""a Court"". In Section 437 Cr.P.C. the words used are ""a Court other than the High Court or Court of Session"". It is to be noted that it is

not stated that ""the High Court or the Court of Session having jurisdiction"" is empowered to exercise the power of releasing the accused on bail.

As already discussed, it is nowhere provided in any of these sections or there was a stipulation that the offence must have been committed

within the jurisdiction of the concerned High Court or the Court of Session. The word ''any'' occurs in many places and that it has been

indiscriminately used as rightly contended by the learned counsel Mr. Rangavajjulla. For instance, in Section 260 Cr.P.C. which deals with the

power to try summarily certain offences, the word ''any'' is used indiscriminately; similarly in Section 261 Cr.P.C. also. That does not mean that

every magistrate has by virtue of the same is having jurisdiction to try offences committed outside his jurisdiction. We are unable to agree with the

interpretation given by the Full Bench in the said case with regard to the phraseology employed, according to which the term ""the High Court

means the Court having jurisdiction over the area where the accusation of having committed a non-bailable offence is made and ""the Court of

Session"" means the limited geographical area within whose limits such a non-bailable offence may have been committed and the accusation therefor

arises. Similarly, the other reason given by the Full Bench while interpreting the provisions of Sections 78, 81, 76, 167 (2) and 177 Cr.P.C., in our

view, is not proper and correct. As already discussed in the earlier part of this order, there is distinction between the stage of enquiry and the stage

of trial. During the stage of enquiry, if any arrest is made outside the jurisdiction, the magistrate who is having jurisdiction or the Chief Judicial

Magistrate or the Sessions Judge, other than the one having jurisdiction is empowered to grant bail. The constitutional safeguard that no person

shall be detained for more than 24 hours and that he should be produced before the nearest Magistrate also supports the view that the High Court

or the Sessions Court who is having the jurisdiction over the place of arrest is empowered to exercise the power. There is absolutely no difficulty in

extending the said power to a person who is sought to be arrested and there is a threat of arrest and the liberty of the person is at stake so as to

invoke the provision of Section 438 Cr.P.C. which has jurisdiction over that place. It is true that Shri Gurbaksh Singh Sibbia and Others Vs. State

of Punjab, does not specifically deal with the concept of extra territorial jurisdiction of the High Court or the Court of Session for grant of

anticipatory bail. But the ratio is laid down in the said decision in respect of the power of the High Court and the Court of Session in a case where

a person apprehends arrest and detention. Certainly the said decision is helpful for deciding this issue also with regard to the power of granting

anticipatory bail in cases of threat of arrest of a person who moves for anticipatory bail in respect of offences committed outside the jurisdiction of

the said court.

Yet another reason given by the Full Bench is that the High Court or a Sessions Court of one State cannot issue or demand compliance with a

notice against the Public Prosecutor of another far away stale. We do not find any reasoning in the same. This Court gives notice not only to the

Public Prosecutor of this State but also to the Public Prosecutor which of the State which is having jurisdiction over the mailer and no difficulty is

experienced so far. It cannot be said that the High Court or a Court of Session in one State is not empowered to issue notice to the Public

Prosecutor or a Government Advocate of another State. Yet another reasoning given by the Full Bench is that 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. We have not come across any

such incident. In cases where anticipatory bail was moved, the persons are directed to be released on anticipatory bail, with a direction to them to

move before the concerned Court within a limited period and in the meantime they should be available for interrogation by the concerned police

officers and that they should not hamper with the investigation. The question of moving from Court to Court does not arise and even if it arises, that

cannot be a ground for holding that the High Court has no jurisdiction to entertain applications for anticipatory bail in respect of persons who are

sought to be arrested and who apprehend threat of arrest and that they are not entitled to file application. We are of the view that the view taken

by the Full Bench of the Patna High Court is an extreme one and that it is against the very concept of anticipatory bail as provided u/s 438 Cr.P.C.

and also affecting the liberty of the person whose liberty is guaranteed under the Constitution of India providing necessary safeguards against

arrest. The definition of ''High Court'' in Section 2(e) of the Code of Criminal Procedure provides that in relation to any State, High Court means,

the High Court for that State. It has no relevance in this context and it cannot be said that in view of the said definition, the High Court cannot

exercise the power of granting anticipatory bail u/s 438 Cr.P.C. in respect of persons who are sought to be arrested or who face threat of arrest

within the jurisdiction of our High Court. It is to be noted that cognizance of offence by one Court is different from granting bail by another court.

For all these reasons, we are unable to agree with the ratio Laid down by the Patna High Court in Syed Zafrul Hassan and Another Vs. State, .

For the foregoing reasons, we hold that the High Court or the Court of Session has got power u/s 438 Cr.P.C. to grant anticipatory bail

irrespective of the locale of the Commission of the offence. In other words, in respect of persons who have been accused of a non-bailable offence

committed beyond the territorial jurisdiction of the State of Tamil Nadu, if their arrest is sought within the jurisdiction of this Court, irrespective of

the fact that they are residents of the place over which this Court was having jurisdiction, this Court can grant them anticipatory bail. However, we

wish to observe that while granting anticipatory bail, this Court has to restrict the relief for a limited period and to direct the concerned persons to

move the Court which is having jurisdiction over the matter in the meantime and also impose such condition so as to make the petitioners available

for interrogation by the concerned police in the meantime. The reference is answered accordingly.