Sailesh Jaiswal Vs. the State of West Bengal and ors. - Court Judgment

B. Panigrahi, J.

1. In this reference, a Division Bench of this court wanted specific observation as to whether section 438 of the Code of Criminal Procedure 1973 (hereinafter referred to as code) empowers to grant anticipatory bail by any High Court or Court of Sessions within the country irrespective of the place of commission of an offence. Subsequently, a batch of application under section 438 of the Code had been filed for grant of anticipatory ball. Therefore, all these matters were taken up together for consideration since they raised a common question of law looking to different views taken by this High Court in two Division Bench Judgments and also by a Full Bench Judgment of the Patna High Court. Therefore, they referred to a larger Bench since the view of the Hon'ble Judges was not uniform.

2. The factual matrix giving rise to the application for anticipatory ball in C.R.M. 152 of 1998 deserves brief narration.

3. The petitioner herein is a business man in an Iron Factory having its branch outside this state and he has been dealing with business as Iron Merchant. On 12th September, 1997 at about 2-30 P.M. In the afternoon, few persons visited the residence of the petitioner while he was away in his business activities, disclosing themselves being Police Official and they required the petitioner's attendance in connection with a Criminal Case. Subsequently, the petitioner ascertained the reasons as to why those persons required his presence. Thereupon the petitioner went to Allahabad and got a copy of FIR lodged by one B.C. Kohli, Senior Manager. Punjab and Slnd Bank, Allahabad Branch with the assistance of a local advocate. it has been, inter alta, stated that a Bank Draft which was presented for encashment at the said branch was forged and that is why, the case being C.R.M. No. 429/97 under sections 420/4G7/468/471/120B of the indian Penal Code was registered in the Civil Line Police Station. Two persons in the said case were taken into custody. From the narration of the FIR, it is somehow not spelt-out that the present petitioner was included in the FIR. Therefore, his presence in the above case seems to be unwarranted, uncalled for and illegal. The petitioner herein has, therefore, prayed for grant of anticipatory ball.

4. The reference made by a Division Bench of this court was however, placed before a Three Judges' Bench but it seems that they were not unanimous in their opinion and they requested the Hon'ble The Chief Justice to be placed before still a larger Bench. That is how, the matter has appeared before this Bench.

5. Mr. Susanta Banerjee with Mr. O.K. Slngh has argued at length on behalf of the petitioner. Since one set of argument will cover the case of other petitioners. it was deemed unnecessary to ask the other learned Advocate appearing for the petitioners to advance their arguments on the same questions. it has been contended with much emphasis by Mr. Banerjee that it shall not be legitimate to place restrictions in so far as the exercise of jurisdiction in the matter of anticipatory bail in connection with a case started in a court outside the jurisdiction of this court is concerned. it has been vehemently argued that sections 70, 78, 80 and 81 of the Code confers the power of a court to release on ball of an accused who has been arrested in connection with a case outside Jurisdiction of this court. if such application could be entertained for ball and in appropriate case, the court can pass an order of release of an arrested person on ball, there is no earthly reason why appropriated orders on an application for anticipatory ball cannot be passed. While granting such ball it is required only to find out whether the applicant has any reason to believe that he is likely to be arrested on an accusation of having committed a non-bailable offence. The ground of apprehension must be based on reasonable and plausible causes. it may be kept in mind that while considering for grant of anticipatory bail, the High Court or the Court of Sessions must apply its mind to the question' and decide whether the case has been made out for grant of such prayer. In previous occasion this court by a Division Bench Judgment reported in 1975 Criminal Law Journal, 1249 in the case of Govlnd Prasad v. State of West Bengal and also in the case of Vtnod Ranjan. Stnha v Gurudev Slngh (1981(II) CHN) 44 held that the court is competent to pass an order of aji anticipatory bail to a person residing within its territorial Jurisdiction in respect of offences alleged to have been committed outside such jurisdiction. Therefore, in view of the above observation, many applications for anticipatory ball have been filed by different petitioners. Therefore, those applications have been placed for consideration and for appropriate orders by this court.

6. Mr. Banerjee has further pointed out that the court should not close its eyes to the reality because in large number of cases, false and vexfous allegations are made only to harass the applicants who reside outside the Jurisdiction of the court within which the alleged offence stated to have taken place. Therefore, keeping in view of the above exigencies in mind, the court should advert to the situation in appropriate case and mitigate the miseries, harassment and torture meted to the applicants.

7. Mr. Salfullah, the learned Public Prosecutor has seriously objected to entertainment of the anticipatory ball application in this court on the mere ground of domicllty or having residence inasmuch as such plea may lead to disastrous results. The learned Public prosecutor has further contended that offences are required to be enquired into and tried in a court having territorial jurisdiction over the locality in which the crime is allegedto have been committed. Even if the accused is far beyond from the place of crime, he has to be brought back before the court having local Jurisdiction to try the same. it is not that the presence of the accused within jurisdiction of a particular court would provide Jurisdiction to any court where he may prefer to be present or deliberately chooses as his place of stay. it seems abanduntly manifest that on a larger principle of criminal administration of Justice the court having Jurisdiction to enquire and try the offence should alone be competent to entertain such application. The Jurisdiction for grant of ball or anticipatory ball is within the periphery of place of investigation unless a statute expressly provides otherwise. Therefore, it is axiomatic that the court having territorial Jurisdiction ordinarily should selge the Jurisdiction to entertain the application for anticipatory bait.

8. Mr. Saifullah has, however, invited our attention that in case of an accused who is alleged to have committed an offence within the State of Bihar would be permitted to file an application and this court or in the court of Sessions on the ground of domlcllty and, such prayer, if granted, the prosecuting agency may not be fettered by such an order as the High Court of Bihar in its Full Bench Judgment, reported in : AIR1986Pat194 in the case of Syect Zajhil Hassan v. State, has significantly held that no anticipatory ball could be granted to a person for an offence committed, other than the court within whose Jurisdiction the offence was allegedly committed. We find there is absolutely no substance in the said contention inasmuch as even if a wrong order was passed, it is open to a person/ authority either to file an application for review or to take steps for getting it reversed by filing appropriate proceedings in the higher courts. Without taking recourse to the above process, no person can be allowed to defy the order passed by the High Court or the Court of Sessions. it is legally impermissible for a court to assume jurisdiction and pass order which lacked such territorial Jurisdiction.

9. We find in some other states, by state amendment, the Jurisdiction of the High Court as well as the Court of Sessions for grant of an anticipatory bail has been taken away. In case, any offence alleged to have been committed in those State, and an anticipatory bail application are entertained in any State other than where the offence was allegedly committed, then. it would lead to a disastrous consequence. Therefore, the court while passing such order should be careful and circumspect in entertaining the application for anticipatory ball on the ground of domlcllty or temporary residence. The concept of territorial or geographical limit are inherent in the justice system, particularly, in the sphere of jurisprudence, these aspects can be noticed from the provision of Article 214.

'There shall be High Court for each State'

10. Therefore, from the above provision it throws abandunt light the High Court of each State shall exercise all its powers within the State without encroaching upon or interfering with the Jurisdiction of the other High Courts.

Section 438 of the Code reads as follows :

'When any person has reason to belief that he may be arrested on an accusation of having committed a non-bailable offence, he may apply tothe court or the Court of Sessions for a direction under this section that in the event of such arrest, he shall be released on ball :

Provided that the mere fact that a person has applied to the High Court or the Court of Session for a direction under this section shall not, in the absence of any order by that court, be a bar to the apprehension of such person in custody, by an officer-in-charge of a police station.

(b) The High Court or the Court of Session, as the case may be, shall dispose of an application for a direction under this sub-section within thirty days of the date of such application.

(c) If any person is arrested and detained in custody by an offlcer-ln-charge of a Police Station before the disposal of the application of such person for a direction under this sub-section, the release of such person on ball by a court having Jurisdiction pending such disposal, shall be subject to the provisions of section 437.

(1A) The provisions of sub-section (1) shall have effect notwithstanding anything to the contrary contained elsewhere in this Act or in any Judgment, decree or order of any court, tribunal or other authority.'

11. It may be noted here that the legislature amended the provision on the ground that as a result of long standing pendency of the anticipatory ball applications in different courts, the investigating agency was neither able to apprehend the persons accused of offence nor proceed to complete the investigation. Therefore, by such legislative mandate, it has asked the courts to conclude the cases where the anticipatory ball has been sought as far as possible within a period of one month. it has to be seriously considered whether the legislature by its amendment could pass such amendment by directing the court to dispose of the cases within one month. Even assuming such amendment is valid then, the courts may be tempted to dispose of the case with all promptitude and expedition. The provision of time limit of one month in the amended provision can only be treated, as directory with a view to conclude the application for anticipatory bail without any unreasonable delay. In the statute, it has been further indicated that even assuming a person submitted an application for anticipatory bail, but by such application it would not detract the investigating officer to apprehend the person so desired or to detain such person in custody by an officer-in-charge of Police Station. Therefore, in our view, when there is a provision. In the section, which does not preclude the offlceMn-charge of the Police Station to proceed with further investigation of the case or to detain a person in Police custody, even after filing of such anticipatory bail application in the court, there appears to have no further necessity of such amendment for concluding the anticipatory ball application within thirty days.

12. Section 438 is placed betweet section 437 and 439 of the Code. Section 437 provides for grant of ball by the Magistrate exercising territorial jurisdiction in non-bailable offence. Similarly, the section 439 empowers the High Court as well as Court of Sessions regarding granting ball in non-bailable offence. As a matter of fact, the High Court and the Court of Sessions having Jurisdiction over the area of commission of the crime are vested with the powers to entertain application for ball under section 439.The manner of exercise of power/under section 438 has to be considered keeping in view of section 437 and 439, there could be no doubt that the word 'High Court' or the 'Court of Sessions' refers only the High Court or the Court of Sessions of the Geographical limits of the courts where the offences is allegedly committed.

13. Section 177 of the Code of Criminal Procedure envisages where the enquiry or the trial shall be held. It is quoted here below :

Section 177 : 'Ordinary place of enquiry and trial of offence ordinarily be enquired into and tried by a court then whose local jurisdiction, it was committed.'

14. Therefore, it can be said with emphasis that the Jurisdiction for trial and enquiry by Criminal Courts should be locale of the Commission of the crime and not the residence of the accused nor the place where he might choose to reside and be found.

15. Section 76 of the Code confers the investigating agencies the power to produce the person arrested before the court without delay or by any other person executing a warrant of arrest (Subject to the provision of section 71 as to security). The Police Officer or any person authorised under the Act bring the persons arrested before the court which he is required by law to produce such person provided such delay shall not in any case, exceed 24 hours excluding the time for journey from the place of arrest to the place of sitting of the Magistrate. On a careful consideration of the provision of sub-section (2) of section 167 of Cr.P.C.. apart from the Magistrate having territorial jurisdiction, any other Magistrate before whom the person arrested is produced could authorise the detention of such person not exceeding fifteen days. The Magistrate having no territorial jurisdiction may order the accused to be produced before the Magistrate having competent Jurisdiction.

'167(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not Jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole ; and if he 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.'

16. The above provision throws sufficient light that offence which is required to be tried in a court having geographical Jurisdiction and not at any other place. Even assuming a person accused of an offence was apprehended at a place away from the place of incident, he should be brought back before the court having Jurisdiction to try the same. Thus, it should be borne in mind that there could be no presumption that the person seeking an anticipatory ball can carry Jurisdiction with him to the place where he preferred to stay. Thus, we are of the firm view that on wider principle that the Criminal Courts having territorial jurisdiction either to hold enquiry or trial of the offence can seige Jurisdiction equally for anticipatory ball. The Public Prosecutor has invited our attention to the second proviso of section 438 of the Code which reads as follows :

'Provided that where the apprehended accusation relates to an offence punishable with death, imprisonment for a term of not less than sevenyears, no final order shall be made on such application without giving the State not less than seven days notice to present Us case.'

17. Therefore, he has indicated in view of the amendment that he may not have any power to ask the investigating agency of the other state to assist nor can he ask the Public Prosecutor of the court where the offence alleged to have been committed for giving useful assistance to the court in which the application for anticipatory ball has been filed. Thus, it should be considered from common parlance that usually the accused person should be directed to file an anticipatory bail application in the court having territorial Jurisdiction within whose Jurisdiction the offence alleged to have been committed. We find sufficient force in the aforesaid submission. From the provision, it appears that no final order can be passed without hearing the Public Prosecutor of a court having competent territorial Jurisdiction. Sometimes it may be Impractical to call for the record from other courts before hearing the Public Prosecutor.

18. Mr. Banerjee, the learned advocate has however, strongly placed reliance in Vtnod Ranjan Stnha's case. On careful consideration of the Judgment, we find that the Division Bench did not consider the application of 178 of the Code, so also the provision of 167(2) and the Division Bench only looking to the facts situation of that case directed to grant anticipatory bail. In Vinod Ranjan Stnha's case no broader principle for grant or refusal of anticipatory bail has been laid down. The learned Advocate appearing for the petitioner has placed reliance in the case of Govind Prosad v. State of West Bengal 1975 Crl.LJ 1249,' which shall be dealt with in course of the discussion later on.

19. The apex court in the case of Balchand v. State of M.P.AIR 1977 Supreme Court 366 has held as follows :

'To begin with section 438 of the Code applies only to non-bailable offences. Secondly, the only authorities which are empowered under this section to grant ball are the Court of Session or the High Court. In view of the fact that an order for anticipatory ball is an extraordinary remedy available in special cases, this power has been conferred on the higher echelons of Judicial service, namely the Court of Session or the High Court. Another Important consideration which follows from the interpretation of section 438 of the Code is that this section does not contain any guidelines for passing an order of anticipatory bail. We might however, mention here that the term 'anticipatory ball' is really a misnomer, because what the section contemplates is not anticipatory ball, but merely an order releasing an accused on bail in the event of his arrest it is manifest that there can be no question of ball, unless a person is under detention or custody. In these circumstances therefore, there can be no question of a person being released on ball if he has not been arrested or places in police custody. Section 438 of the Code expressly prescribes that any order passed under that section would be effective only after the accused has been arrested. The object which is sought to be achieved by section 438 of the Code is that the moment a person is arrested. If he has already obtained an order from the Sessions Judge or the High Court, he would be released immediately without having to undergo the regours of jail even for a few days which would necessarily be taken up if he has to apply for bail after arrest.'

20. In a recent Judgment reported in Judgment Today 1997(7) SC651 in the case of Slate Rep. by the C.B.I- v. Anil Sharma has however held that the underling principle for consideration of application for anticipatory bail is different from regular bail. In some cases, the grant of anticipatory bail unnecessarily intrudes into the sphere of investigation whereby investigating agency is however, being prevented from getting material from the suspected person. In the above judgment, the Supreme Court held as follows :

'We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation orientated than questioning a suspect who is well ensconced with a favourable order under section 438 of the Code. In a case like this effective interrogation of suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insultated by a pre-arrest bail order during the time he is interrogated. Very often interrogated in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third degree methods need not be countenanced, for such an argument can be advanced by all accused in all criminal cases. The court has to presume that responsible Police Officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves a offenders.'

21. In another Judgment reported in AIR 1998 Supreme Court 144 in the case of State of Assam and another v. R.K. Krishna Kumar and others, it has been held as under :

'We do not think it necessary to decide whether Bombay High Court has jurisdiction to entertain the applications filed by the respondents. All the same, the question of granting anticipatory ball to any person who is allegedly connected with the offences in question must for all practical purposes be considered bv the High Court of Guwahati within whose territorial jurisdiction such activities should have been perpetrated. In view of the conceded position that appellants were not heard by the High Court we set aside the Impugned orders on that ground alone. The applications are to be disposed of after hearing the appellants also. For that purpose we order that the applications for anticipatory bail filed by the respondents would stand transferred to the High Court of Guwahati where those applications would be heard by a Division Bench of the High Court and appropriate orders be passed thereon. We request the Chief Justice of High Court of Guwahati to allot these cases to a Division Bench to hear the applications, preferably on 4.11.1997.'

(underline supplied for emphasis)

In order to avoid conflicting decisions and opinions, we think it necessary that all future petitions for anticipatory ball made by any one in common or related matters referring to such activities committed within the territorial limits of Guwahati High Court shall be heard only by the same Division Bench, we further direct that no such application foranticipatory ball shall be entertained by any court other than the Division Bench of the High Court of Guwahati indicated above.'

(underline supplied for emphasis)

22. In Govind Prasad's case the Division Bench of this court has quite reasonably come to the conclusion that the Magistrate before whom the accused is produced after arrest has power either to grant or refuse ball under the new Code as the Magistrate has Jurisdiction over the place of arrest to pass an order for granting or refusing ball. The relevant provisions of the new Code for ball are wide enough and any narrow interpretation thereof would not only be retrograded but also de hors the intention of the legislation. It has been held in the case of Govind Prasad v. State of West Bengal as follows :

'For a proper consideration of the point at issue ascertaining the animus imponentis or the intention of the law maker, we will have to consider the provision of the statute in the first instance. The relevant provisions of the new Code are wide enough pinpointing a marked departure from those of the old Code. Section 48 of the Code of Criminal Procedure 1973 provides for the pursuit of offender into other Jurisdiction and the same corresponds to section 58 of Act N of 1898. The next relevant provision viz. section 50 is a new and material one. Sub-sectlon(l) of section 50 requires a Police Officer or other person arresting any person without warrant to communicate to him forthwith 'full particulars of the offences for which he is arrested on other grounds for such arrest' This section which has a distinct tradition has been inserted on the recommendation of the Joint Committee on the Bill of 1970 and for good reasons viz. to bring the letter in conformity with the provisions of Article 22 of the Constitution of india. Dr. Durgadas Basu in his commentaries on the New Code oj Criminal Procedure has deserved that 'the object of the safeguard is to enable the person arrested to move for habeas corpus to obtain his release.' The provisions of section 56. which are the same as in the old code may next be considered. it is as follows, 'A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to ball, take or send the person arrested before a Magistrate having Jurisdiction in the case, or before the officer in charge of a police station'. The words 'subject to the provisions herein contained as to bail' are significant and proper meaning and effect is to be given to the same. it is pertinent in this context to refer to the observations of S.R. Das, J., delivering the Judgment of the court in the case of the State of Punjab v. Ajaib Singh reported in : 1953CriLJ180 that 'there can be no manner of doubt that arrests without warrants issued by a court call for greater protection than do arrests under such warrants. The provision that the arrested persons should within 24 hours be produced before the nearest Magistrate is particularly desirable in the case of arrest otherwise than under a warrant issued by the court, for it ensures the Immediate application of a Judicial mind to the legal authority of the person making the arrest and the regularity of the procedure adopted by him.' We respectfully agree and apply the same to the facts of the present case. The position is only made clearer bythe provisions relating to arrest without warrant. A reference fn this context may also be made to the case of Nagendra, ILR 51 Cat 402 = (25 Cri LJ 732) which is a case under the old Act and also the relevant provisions of sections 436(1) and 437(1) corresponding to sections 496 and 497 of the old Code Dr. Durgadas Basu in his commentaries on the New Code of Criminal Procedure has observed that 'the safeguard embodied in sections 56-57 was embodied by the makers of our Constitution in Article 22(2) in order to guarantee it against legislative encroachment with liberalisation on Important points.' We agree with the same and we hold that the words 'subject to the provisions herein contained as to ball' clearly make the provision of Chapter XXXIII of Act 2 of 1974 applicable to such cases and bring the position on a par with that enjoined under section 81 of the said Code. The other relevant provision in this connection is that in section 57 which provides that the person arrested is not to be detained for more than 24 hours in the absence of a special order of a Magistrate under section 167. it is pertinent now to refer to the provisions of Chapter VI. The provision relating to arrest without warrant may now be considered and the same lifts the cloud, if any, and makes the position clearer. A reference may also be made to the provisions of sub-sectlon(2) to section 78 which was engrafted at the instance of the Joint Committee on the Bill of 1970 and was consequential upon the insertion of the second proviso to section 81(1) of the Code, lays down that 'The court issuing a warrant under sub-sectlon(l) shall forward, along with the warrant, the substance of the information against the person to enable the court acting under section 81 to decide whether ball should or should not be granted to the person.' The power to grant ball therefore is unequivocally envisaged in the provisions of section 78 read with section 81 of the new Code of Criminal Procedure.

It is pertinent in this context to refer to the second proviso to section 81 which is as follows : 'Provided further that if the offence is a non-ballabie one, it shall be lawful for the Chief Judicial Magistrate (subject to the provisions) of section 437) or the Sessions Judge, of the District in which the arrest is made on consideration of the information and the documents referred to in sub-sectlon(2) of section 78, to release such person on ball.' The only bar therefore is under section 437(1) which, however, does not apply to the present case involving offences under sections 406/408/468/471 of the indian Penal Code and the same also does not apply to the High Court. The obvementloned provisions therefore is a marked departure from that contained in section 86 of the old Code (Act v of 1898). The relevant recommendation of the Joint Committee in this context are pertinent being a proper interpretation and are as follows : 'Under the present provision (old section 86) where a warrant of arrest is sent to a place outside the local Jurisdiction of Magistrate, for execution, the arrested person has necessarily to be transported in custody to the Magistrate issuing the warrant before he can claim to be released on ball... this results in considerable hardship and inconvenience to persons arrested far away from court issuing the warrant of arrest. To remove such hardship and inconvenience, the Committee has amended these clauses conferring power on the Magistrate having Jurisdiction over the place of arrest to release the person on ball (new 2nd proviso to section 81(1), subject to the other provisions of the Code relating to ball (section 437). To enable such Magistrate to consider whether ball should be granted. it has further been provided (section 76(2) ... that the Magistrate issuing a warrant a should also forward along with the warrant the substance of the information together with relevant documents'. Even under the old Code where the relevant provisions are prlma facie more circumscribed, the courts interpreted the words 'appear to be the person intended by the court' more expansively and a reference in this context may be made to the case of in Re: Sagarmal Khemraj, AIR 1940 Bom 397 (42 Crl LJ 205) and Kham Chand Tarachand Samtani v. The State, (1970} 74 Cal WN 753 = (1971 Crl LJ 149). In the Bombay case, the warrant issued having been found to be not sufficiently definite the accused was directed to be released and in the Calcutta case it was observed that 'While the executing Magistrate is not certainly a rubber stamp, bound to execute any and every warrant coming from outside the local limits of his jurisdiction, he is nonetheless bound by the condition as Imposed in the said section.' The new provisions engrafted in Act 2 of 1974 have, however; thrown the flood-gates open and made the position distinctly wider.

The imprimatur of judicial decision may now be considered. The learned Deputy Legal Remembrancer, appearing on behalf of the State of West Bengal referred to two cases in support of his contention. He referred in the first instance to an unreported decision dated the 13-7-1973 by S. P. Mitra, C. J. and A. K. De, J, in the case of Madanlol v. The State, Criminal Misc. Case No. 957 of 1973 (Cal). The said decision, however, does not lend assurance to the contention of the learned Deputy Legal Remembrancer in this behalf. In the first place the decision is in July, 1973, under the old Code viz., the Code of Criminal Procedure, 1898. the provisions whereof are markedly different from those of the new Code of Criminal Procedure, 1973: and secondly the point now raised by the learned Deputy Legal Remembrancer does not appear to have been even raised and considered in the said judgment. The Division Bench proceeded apparently on merits and ultimately disposed of the Rule with the following observations. 'We see no reason to interfere with the order passed by the learned Chief Presidency Magistrate, Calcutta, on the 7th July, 1973, directing that the accused be sent to court lock-up and the A. C. R. F. is to arrange escort party and cause production of the accused before the Betlah Court nor we do find any reason for granting him ball.' Their Lordships thereafter proceeded to modify the order of the court below by some directions as prayed for on behalf of the petitioner but there is no reference to the point at issue in this case. The other case referred to by Mr. Rajesh Chandra Ghosh is the case of State v. Sajjan Singh, reported in 1953 Crl LJ 1525 = (A!R 1953 Pepsu 146) Chief Justice Teja Slngh while observing that there is no provision in the Code for anticipatory bail further held that the word 'court' appearing in section 497 of the Code of Criminal Procedure, 1898 means the court which has jurisdiction to try the cases for the offence alleged to have been committed by him. Apart from the fact that the context is different, it should not be overlooked that the observations are made on the basisof the provisions of the old Code and the same is markedly different from the wider provisions of the new Code of 1973. Mr. Prasun Chandra Ghosh, Advocate, appearing on behalf of the accused-petitioner, however, referred to the case of State of Punjab v. AJatb Slngh. reported in : 1953CriLJ180 and relied on the observations made by Mr. Justice S. R. Das at p. 15 that 'there can be no manner of doubt that arrests without warrants issued by a court call for greater protection than do arrests under such warrants. The provisions that the arrests persons should within 24 hours be produced before the nearest Magistrate is particularly desirable in the case of arrest otherwise than under a warrant issued by the court, for it ensures the immediate application of a judicial mind to the legal authority of the person making the arrest and the regularity of the procedure adopted by him.' We respectfully agree with the same. Mr. Ghosh next referred to the fact that earlier, in the case instituted by Sri Paul Oswal, Director of the company against the present accused-petitioner, substantially on the same facts, when a warrant of arrest was issued by the Ludhtana Court, the then Chief Presidency Magistrate of Calcutta, by hfs order dated the 25th April, 1973. had granted ball to the accused in that case directing him to appear before the Ludhiana Court in due course. The Rule obtained from the High Court for a cancellation of the bail so granted by the learned Chief Presidency Magistrate, Calcutta, was ultimately discharged by Mr. Justice A. K. Basu and Mr. Justice N. C. Mukherjee on the 14th June, 1973. Mr. Prasun Chandra Ghosh accordingly submitted that this is a precedent pat on the point in support of his submissions. There are several decisions both reported and unreported on the point in favour of granting bail even under the old Code and without multiplying such cases, a reference may be made to the case of Gufom Mohammod Azfmuddfn v. State, reported in : AIR1959MP147 wherein the indore Bench observed at page 149 that-

'But though the Magistrate had no power to grant ball to the petitioner, the Sessions Judge could and this court can release the petitioners on bail to appear before the City Magistrate of Ujjain and in the meantime direct the Madras Police Officer to produce warrants of the Trivellore Court, Madras State, for the arrest of the petitioners.' it was further observed by Mr. Justice P. V. Dixit at page 150 that-

'It is now well settled that the powers of the High Court and the Sessions Court under section 498 are in no way controlled by section 497, Criminal Procedure Code, and it is open both to the High Court or to the Court of Sessions to Admit a person to ball on good and sufficient cause in any case.'

The relevant provisions in the new Code are much wider bringing clearly to light the right to grant ball in such cases. The imprimatur of Judicial decisions therefore, lends assurance to the findings arrived at by us based on the provisions of the statute. On an anxious consideration ultimately of the provisions of the statute and of the decision on the point, we hold that the preliminary objection raised by the learned Deputy Legal Remembrancer, relating to the absence of Jurisdiction of the Calcutta Court to grant ball, is not sustalnable and the same accordingly fails.'

23. Mr. Banerjee has placed reliance on the Judgment reported in 1992 Crl. LJ p. 3442 in the case of T. Madhusudan v. Superintendent of Police and another which has been held as under by Kerala High Court :

'As regards grant of anticipatory bail the place where a person apprehends arrest is a sure test for determining jurisdiction of 'the' High Court or 'the' Court of Session as they case may be. if the applicant can satisfy the court that his apprehension (that he would be arrested at a place within the territorial limits of a particular court) is based on reasonable grounds, the High Court of the Sessions Court having Jurisdiction over that place has authority to exercise powers under section 438 of Cr. PC A person can be arrested at any place whether that a place is within or outside the place where the offence has been committed. if release from arrest is necessary, the place where arrest is made has some significance for such release.'

24. But the reasonings of the Full Bench decision of the Patna High Court in the case of Syed Zafrul Hassan v. State appears to be more reasonable and convincing and therefore, we hereby agree to the views of the Full Bench decision in Syed Zafrul Hassan case rather than the views taken in the case of T. Madhusudan v. Superintendent of Police and anr. similarly, we are unable to agree with the view of the Division Bench Delhi High Court reported in AIR 1991 Crl. LJ p. 950 in the case of Capt. Satish Kr. Sharma v. Delhi Administration.

25. In a single Bench decision of Rajasthan High Court reported in Crimes 1983(3) in the case of Bimal Kr. Jain v. State held that when an accused is required in a police Station, the High Court of the Court of Sessions of any other state cannot grant blanket anticipatory bail but the production of the accused could be deferred till he presents himself before the investing officer who may pass a suitable direction. In another Kerala case reported in AIR 1995 Crl. LJ 1316 in the case of C.T. Mathewv. Gout of India. Home dept. It has been held as follows :

'The anticipatory ball 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 given reasons nexus for the exercise of jurisdiction under section 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 get anticipatory ball. The arrest is made 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 in court competent to grant anticipatory bail. The anticipatory ball granted by the High Court or Sessions Court within whose Jurisdiction the offence is committed will ensure beyond the territorial limits of the 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 madebeyond that State. In this view, residence of the accused may not be a relevant factor to fix Jurisdiction for grant of anticipatory ball. When section 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 ball under section 438 but while in the former case the ball will ensure also to arrest made beyond the State, in the latter case the High Court will have to restrict the relief of anticipatory ball 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 ball under section 438.'

26. In Karnataka High Court by a single Bench decision reported in 1984 Crl.LJ 757 in the case of L. R. Naidu v. State of Karnataka has no doubt held that place of offence is not material while considering the prayer for ball and he can move before the court where he ordinarily resides even though the offence was committed outside the Jurisdiction of that court but we are unable to agree with the views of the learned single Judge inasmuch as we are inclined more to accept the views of the Full Bench decision of the Patna High Court.

27. The concept of the anticipatory ball had however been crept in the new code of Criminal Procedure of 1973 prior to it, there was no provision for anticipatory ball, while considering the scope and ambit of section 438 of the Code, it seems that the provision empowers to grant anticipatory ball . with the Court of Session or the High Court. The expression, anticipatory bail is truly speaking a misnomer and the section contemplated is not anticipatory bail but merely an order releasing an accused on ball in the event of his arrest. But in view of the discussion made above, we are of the view 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 to the High Court or Court of Sessions for a direction that in the event of arrest he shall be released on ball. 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 reason that he may likely be arrested in 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 refuse anticipatory bail. In case, either the High Court or the Court of Sessions on reference of material produced before it that there is likelihood of a person being arrested in a non-bailable offence, it could grant anticipatory ball directing such person to be released on execution of bond or by Imposing any other condition which the arresting officer deemed (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 shallpass 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 ball 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. With the above observation, the reference of the Division Bench has been answered.

28. We carefully consider the merit of the application filed by the applicant Sallesh Jalswal. It is true that in the Charge-sheet the name of the applicant does not find place. But we are not in a position to know as to the contents of the FIR lodged by B. C. Kohll, The applicant was said to have obtained information through an advocate from Allahabad. We failed to understand as to why he did not prefer to file an application for grant of bail within the jurisdiction of Allahabad Court where the offence was allegedly committed. Therefore, in the above situation, we carefully considered the merit of the application filed by the appellant Sailesh Jalswal. it is true that in the Charge-Sheet the name of the applicant does not find place. But we are not aware as to the contents of the FIR lodged by B.C.Kohll. Therefore, in the above situation we are not inclined to exercise our Jurisdiction under section 438.

29. Accordingly, the application has been rejected.

V. K. Gupta. J.

I agree.

N. A. Chowdhury, J.

I agree.

P.S. Mishra, C.J.

I have perused the Judgment of B. Panlgrahl, J.

30. I am in respectful agreement with the view that the exercise of jurisdiction of anticipatory ball by High Court or the Court of Sessions beyond the local limits of the Jurisdiction is limited to the extent of a ball for the transitional period and it cannot have Jurisdiction to transgress into the limits of the local jurisdiction of any other High Court or the Court of Sessions which is not under its superintendence and control, within whose Jurisdiction alleged offence has been committed.

31. B. Panigrahi, J. has taken all legitimate aspects into account for the above conclusion. When read in isolation section 438 of the Code of Criminal Procedure which reads as follows :

(1) When any person has reason to believe that he may be arrested on an 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; and that court may, if it thinks fit, direct that in the event of such arrest, he shall be released on ball.

(2) When the High Court or the Court 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 think fit, 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 ball were granted under that section.

(3) if such person is thereafter arrested without warrant by an Offlcer- in-Charge of a police station on such accusation and is prepared either at the time of arrest or at any time while in custody of such officer to give ball, he shall be released on ball; 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).' -- gives Impression that a resident within the territorial Jurisdiction of any Court of Sessions and of the High Court apprehending arrest can make application for anticipatory ball. That, however, does not appear to be the intention of the legislature. A mentioning of the Court of Sessions and the High Court in section 438 of the Code cannot be read as any Court of Sessions or any High Court whether having Jurisdiction or not having Jurisdiction.

32. An application for ball in anticipation of arrest can be sought for only in non-bailable offences. Accusation of non-bailable offence must then be found in a case that is registered for investigation by the Officer-in-charge of a police station or under the orders of any superior officer by the Offlcer- in-charge of a police station having territorial jurisdiction. No case can be registered by the police as contemplated under section 156 of the Code of Criminal Procedure unless the same is in respect of an offence in respect of which the police station concerned has jurisdiction.

33. Section 2 of the Criminal Procedure Code, 1973 which contains the provision for application for ball by the person who believes that he may be arrested on an accusation of having committed a non-bailable offence has defined 'High Court' to mean 'In relation to any State, the High Court for that State; 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; and in relation to any other Union territory, the highest court of criminal appeal for that territory, other than the Supreme Court of india and 'police station' to mean any post or place declared generally or specially be the State Government, to be a Police Station, and includes any local area specified by the State Government in this behalf.

Dealing with the Jurisdiction, the Code has elaborately provided all classes of Criminal Courts besides High Court and the courts constituted under any law and territorial divisions. Even coursory glance to such provision in Chapter II of the Code makes it abundantly clear that a Judicial Magistrate's Jurisdiction extends to the local area of a Police Station or more than one Police Stations so determined in accordance with the provisions therein: that of the sessions divisions over that of the Judicial Magistrate and that of the High Cour of the State or States upon all courts in the Stateor States. Ordinary criminal jurisdiction of the Calcutta High Court is described in Clause 22 of the Letters Patent of 1865 as the local limits of its ordinary original civil Jurisdiction and also in respect of such persons both within the limits of Bengal Division of Port William - (now the State of West Bengal) and beyond such limits as the Andaman and Nicobar islands and 'not within the limits of the Criminal Jurisdiction of any other High Court or Court established by competent legislative authority for india.'

34. Examined in the light of the above provisions, observation in the judgment of the Supreme Court in the Case of Balchand v. state of M.P. (AIR 1977 SC 366) gives clear indication that the High Court, for the purpose of section 438 of the Code, must mean the High Court having jurisdiction over the Sessions Judge. Judicial Magistrate within whose Jurisdiction the Police Station at which the case is registered for investigation falls.

35. B. Panigrahi. J. has taken pains to examine various aspects of the matter and he is not off the mark when he says that the order to release on ball under section 438 of the Code would be effective when the person who is granted such ball, is arrested. A person who is arrested in connection with a case within the local Jurisdiction of a Magistrate, the Sessions Court and the High Court of some other State, that is at a place outside the territorial jurisdiction of the Calcutta High Court, at some place within the territory of the State of West Bengal and or Andaman and Ntcobar islands, he, under the scheme of law, shall be produced before the nearest competent Magistrate who shall order for either ball on conditions as contemplated under various provisions of the Code an on the condition that he shall appear before the Magistrate having jurisdiction over the Police Station at which the case, in connection with which he has been arrested, is registered or accept custody and continue the same for the purpose of production of the person who is arrested, before the Judicial Magistrate having Jurisdiction in the other State or Onion territory. Any order under section 438 of the Code by this court, other than the limited Jurisdiction for the transitional period, that is arrest and released on ball by the arresting authority or the Magistrate on whose orders the person arrested is required to be produced before the Judicial Magistrate having Jurisdiction in the other State or union territory, shall be in excess of jurisdiction.

36. It is not Just the threat of arrest or residence of the person sought to be arrested which is only to give jurisdiction for bail under section 438 of the Code. It is the information that he is sought to be arrested in connection with a non-bailable offence that the Jurisdiction to grant anticipatory ball is exercised. Such positive information shall leave no room to think of any course other than the person apprehending arrest moving the High Court of the State or union territory within whose Jurisdiction the Police Station, at which the case is registered, falls.

37. I concur with the view expressed by Panigrahi, J.

G.R. Bhattacharjee, J.

The question that has to be considered and decided in this Reference is whether the High Court or the Court of Session has any power or Jurisdiction to entertain and allow an application for anticipatory ball filed by any person under section 438 of the Code ofCriminal Procedure apprehending arrest in connection with any criminal case registered at a place outside the territorial Jurlsdlclon of that High Court or the Court of Session, as the case may be, for investigation in connection with the commission of a non-bailable offence. There has been no decision of the apex court as yet on this point, but the High Courts are divided in opinion. One view is that where a first information repor (FIR) in respect of an offence has been registered at a place outside the terrotorial Jurisdiction of the High Court in which the application for anticipatory ball has been made such court has no Jurisdiction to entertain the same or to grant anticipatory ball in such a case, and it is the High Court or the Court of Session within the territorial Jurisdiction of which the FIR has been lodged has the power to grant anticipatory bail. The other view is that the High Court within the territorial jurisdiction of which a person has reason to believe that he may be arrested in connection with a non-bailable offence may grant anticipatory ball although the FIR might have been registered at a place outside the territorial Jurisdiction of such High Court.

38. Section 438 Cr.PC as tt now sands amended by the West Bengal Amendment Act, 1990 runs thus:

'438, (1)(a) When any person who has reason to believe that he may be arrested on an 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 :

Provided that the mere fact that a person has applied to the High Court or the Court of Session for a direction under this section shall not, in the absence of any order by that court, be a bar to the apprehension of such person, or the detention of such person in custody, by an officer- in-charge of a Police Station.

(b) The High Court or the Court of Session, as the case may be, shall dispose of an application for a direction under this sub-section within thirty days of the date of such application :

provided that where the apprehended accusation relates to an offence punishable with death, improsonment for life or imprisonment for a term of not less than seven years, no final order shall be made on such application without giving the State not less than seven days notice to present its case.

(c) if any person is arrested and detained in custody by an offlcer-in-charge of a Police Station before the disposal of the application of such person for a direction under this sub-section, the release of such person on ball by a court having jurisdiction, pending such disposal, shall be subject to the provisions of section 437.

(1A) The provisions of sub-section (1) shall have effect notwithstanding anything to the contrary contained elsewhere in this Act or in any judgment, decree or order of any court, Tribunal or other authority.

(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 think 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 theprevious permission of the court;

(iv) Such other condition as may be imposed under sub-section (3) ofsection 437, as if the ball were granted under that section.

(3) if such person is thereafter arrested without warrant by an offlcer- 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 ball, he shall be released on ball; 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).

It may be noted here that the content of sub-section (l)(a) of section 438 as it stands after the West Bengal Amendment minus the proviso thereto, is the content of the sub-section (1) of section 438 of the Code in the Central enactment and there has not been also any amendment in West Bengal to the original provisions of the Central enactment in sub-section (2) and sub-section (3).

39. As regards the desirability of introducing a provision in the Code for anticipatory ball the Law Commission in its 41st Report observed :

'39.9. The suggestion for directing the release of a person on ball prior to his arrest (commonly known as anticipatory ball) was carefully considered by us. Though, there is 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 ball arises mainly because sometimes influential persons try to Implicate their rivals in false cases 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.'

40. The broad purpose of section 438 is to make provision so that a person accused of the commission of a non-bailable offence and facing the possibility of arrest in that connection may get an opportunity to approach a senior court or a superior court for appropriate order of bail before actual arrest for the purpose of avoiding the ignominy and harssment of arrest and custody is connection with a proceeding set in motion by some person or by some quarters with a male fide intention or motive to harass him. In terms of the section itself a person can approach court for anticipatory bail in connection with a non-bailable offence if 'he has reason to believethat he may be arrested on an accusation of having committed a non-bailable offence'. In the perspective of the language used therein and the purpose for which the section has been enacted we will have to consider whether the expression 'the High Court' as referred to in section 438 only refers to the High Court within the territorial jurisdiction of which the FIR has been lodged. There may be instances where by manipulation or distertion of facts, some interested quarters may motlvatedly lodge FIR against a person at a place in a State different from the State where the person against whom the FIR is lodged ordinarily resides, with the mala fide intention of putting such person into harassment The question in this context arises as to whether in such a case the accused against whom the FIR has been lodged should run the risk of being arrested at the place of his residence in connection with the criminal case registered at a distant place in another state and should be denied the opportunity of approaching the local High Court, namely, the High Court having Jurisdiction over his residence or place of stay for the relief of anticipatory ball under section 438 Cr.PC simply because the concerned criminal case has been registered elsewhere within the Jurisdiction of a different High Court. if the answer is to be given in the affirmative, that will definitely be unfortunate for the accused because from the place where he resides or stays it may not readily possible for him to approach the High Court of a different State for anticipatory ball and at any rate the purpose of taking recourse to section 438 Cr.PC itself may be frustrated in such a case by reason of difficulties and delay necessarily involved in making approach to a different High Court from the place or State of his stay or residence. In my considered view the right and the opportunity to approach court for obtaining the benefit of section 438 should not be confined only within the territorial Jurisdiction of the High Court or the court of session covering the place where the criminal case has been started, firstly because the language of section 438 does not at all warrant any such restrictive interpretation and secondly because that will partially run counter to the purpose for which the said section has been enacted. The following observation of the Supreme Court in Gurbaksh Singh v. State of Punjab, : 1980CriLJ1125 deserves attention in this connection :--

'26. We find a great deal of substance in Mr. Tarkunde's submission that since denial of ball amounts to deprivation of personal liberty, the court should lean against the Imposition of unnecessary restrictions on the scope of section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 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 ball. An overgenerous infusion of constraints and conditions which are not to be found in section 438 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 must be saved, not jettisoned. ****.*

40. The clue to the invocation of section 438 is a reasonable apprehension on the part of the person concerned that he may be arrested inconnection with a non-bailable offence. The section does not say that it must be in connection with a criminal case registered within the territorial jurisdiction of the particular court in which the application for anticipatory ball has been filed. The High Court referred to in section 438 can also be the High Court within whose territorial Jurisdiction the concerned person ordinarily resides or stays and therefore apprehends that he may be arrested at that place although the case might have been registered elsewhere at a distant place within the territorial Jurisdiction of another High Court. There is no doubt that the High Court within whose territorial jurisdiction a criminal case is registered has the jurisdiction to entertain an application under section 438 Cr.PC in connection with that case, but at the same time if a person normally resides at a distant place in a different state within the territorial Jurisdiction of another High Court and has been named in the aforementioned criminal case as an accused and therefore naturally entertains a bona flde and reasonable apprehension of being arrested at the place or locality of his residence in connection with that case he should, in all fairness and consistent with the object of section 438, have the opportunity to approach the local High Court for anticipatory ball, else for practical reasons, it may not be possible for him at all to approach a distant High Court in time for this purpose before he is actually arrested either at the place or locality of his residence or while in transit for going to the High Court in a different State for the purpose of moving an application for anticipatory ball there. That is definitely not a desirable consequence, if the existence of section 438 in the stature-book is considered Justified and desirable. The question whether anticipatory ball should be at all granted in a particular case is however entirely a different matter, and that aspect of the matter should not be mixed up with the matter now under our consideration regarding in jurisdiction of the court to entertain an application for anticipatory bail.

41. One of the two factors which, when combined together, entitle a person to seek shelter under section 438 is that he must be under a reasonable apprehension of being arrested. The other factor is that such reasonable apprehension of arrest must arise on an accusation of having committed a non-bailable offence. There two factors combined together give rise to an occasion for the person concerned to lake recourse to section 438. At the individual level section 438 thus comes into play when (1) there is an accusation of the commission of a non-bailable offence, and (2) there is a reasonable apprehension of arrest in that connection. Section 438 can be pressed into service by a person only when these two factors combine. Both these factors are also jurlsdtctlonal factors in the sense that they determine the court in which an application under section 438 can be filed. Ordinarily the place where the accusation of the commission of an offence is made, that is the FIR is lodged and the place where the person concerned apprehends arrest in that connection-(and generally that is the place where the accused ordinarily resides or stays)-both fall within the territorial jurisdiction of the same court and therefore an application for anticipatory ball filed in such court is entertained without any scrutiny of the jurlsdlctional aspect of the matter. Scrutiny however becomes necessary in a case where the FIR is lodged in one jurisdiction and the accused has to be arrested within another Jurisdiction where he ordinarily resides or stays and therefore apprehends arrest at that place. In other words, he apprehends arrest at the place of his residence or stay which ts different from the place where the FIR has been lodged,-the two places being within the territorial Jurisdictions of two different courts. In such a situation there is no dispute that the court having territorial jurisdiction over the place where the FIR has been lodged can entertain an application for anticipatory ball. it will appear from a little analysis, as done earlier, that this is because one of the two factors constituting the sine qua non for the application of section 438 being the accusation, that is, lodging of FIR. the court having territorial jurisdiction over the place where the FIR is lodged has the Jurisdiction to entertain an application for anticipatory bail. For the same reason the court having jurisdiction over the place where the other factor, which is also a sine qua non for the application of section 438, comes into play by reason of the concerned person entertaining a reasonable apprehension of being arrested at that place, gets jurisdiction to entertain an application for anticipatory bail from that person although the FIR might not have been lodged within its territorial Jurisdiction. This is a legal conclusion based on parity of logic. We thus find that from whatever angle of view the matter is examined, whether from the perspective of the object which section 438 is intended to serve or from the view point of purely analytical logic, we can not,--In the matter of anticipatory bail--deny Jurisdiction to the court within the territorial jurisdiction of which the accused is haunted by a reasonable apprehension of suffering arrest within that jurisdiction.

42. In order to get the true perspective of the matter on the anvil of which the question may have to be tested we may take notice of certain provisions of law having some bearing on the question. At the very outset we may refer to Article 22(2) of the Constitution which runs thus :--

'22(2). Every person who is arrested and detained is custody shall be produced before the nearest Magistrate within a period of twenty-four 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 beyond the said period without the authority of a Magistrate.'

43. Here the requirement of the Article 22(2) that the person arrested must be produced before the nearest Magistrate within a particular time is definitely not tethered to the test of terrltoriallty with reference to the place of commission of the offence or the place where the connected criminal case might have been registered. The mandate of the constitution is that the person arrested and detained in custody in connection with any offence or criminal case that might have been committed or registered even elsewhere will have to be produced before the nearest Magistrate, that is, the Magistrate nearest to the place of arrest and detention Irrespective of the question that the offence might have been committed or the criminal case might have been registered at a different and far away place within the territorial jurisdiction of another Magistrate or court. it may also be noted here that at the time when the Constitution case into force there was only one type of Magistrate and not the two types, namely, the Executive Magistrate and the Judicial Magistrate as they now exist since the coming into force of the Criminal Procedure Code, 1973. The very purpose of production before the nearest Magistrate after arrest is to give the arrested person an opportunity to place himself at the disposal of an independentand responsible authority, namely, the Magistrate so that the Magistrate can examine the matter and pass such order as may be considered necessary or warranted in accordance with law regarding detention, custody, production or release of the arrested person on ball or otherwise. A person who is arrested and produced or brought before a Magistrate in connection with a non-bailable offence may pray for ball under section 437 Cr.P.C and it wlli be for the Magistrate concerned to consider the prayer for ball in accordance with law. The Magistrate may also reject the prayer for ball and order detention of the arrested person in proper custody in accordance with law. Section 3(4) of the Criminal Procedure Code, 1973 makes it clear that where under any law other than the Code of Criminal Procedure, 1973 the functions exerclsable by a Magistrate relate to matters which involve the appreciation or sifting of evidence or the formulation of any decision which exposes any person to any punishment or penalty or detention in custody pending investigation, enquiry or trial or would have the effect of sending him for trial before any court, they shall, subject to the provisions of the Code, be exerclsable by a Judicial Magistrate or, if the functions exerclsable by a Magistrate related to matters which are administrative or executive in nature, such as, the granting of a licence, the suspension or cancellation of a licence, sanctioning a prosecution or withdrawing from a prosecution, they shall, subject as aforesaid, be exerclsable by an Executive Magistrate. Since the very purpose of production of an arrested person before a Magistrate in compliance with the Article 22(2) is to place the arrested person at the disposal of the Magistrate requiring the Magistrate to consider and decide whether he should be directed to be detained in custody and if so, in whose custody or to be produced before any other court or whether he should be released on bail or otherwise, the requirement of the said Article 22(2) can be satisfied by producing him before a Judicial Magistrate and not an Executive Magistrate unless statutorily empowered. Section 167 Cr.PC also contemplates and requires production of the arrested person (whether arrested with warrant or without warrant) before the nearest Judicial Magistrate and empowers such Judicial Magistrate, whether he has or has not Jurisdiction to try the case, to authorise the detention of the accused in proper custody for a term not exceeding fifteen days in the whole, and if such Magistrate has no jurisdiction to try the case or commit it for trial, he may order the accused to be forwarded before a Magistrate having such jurisdiction. This provision also clearly shows that the nearest Magistrate before whom an arrested person has to be produced in compliance with the mandate of Article 22(2} as well as of the requirement of section 167 Cr.PC need not necessarily be the Magistrate having Jurisdiction to try the case or commit it for trial. All these aspects are pointed out by me to show that in dealing with the matter of detention and custody of an arrested person the law including the Constitution has not excluded the role of a Magistrate in certain circumstances even if he may not have jurisdiction to try or inquire into the case in connection with which the accused has been arrested. Section 41 Cr.PC relates to the power of a police officer to make arrest of a person without warrant in the circumstance mentioned therein including the power to arrest a person who has been concerned in any cognizable offence or against whom a reasonable compliant has been made or credible information has been received or a reasonable suspicion exists of his having been so concerned. In view of section 48 Cr.PC a police officer may pursue any suchperson into any place in India for the purpose of arresting him without warrant See the extra-territoriallty of these provisions, if one chooses to use that expression. A police officer has the power to arrest without warrant an offender whom he finds present at the place of arrest within his territorial jurisdiction although the offence might have been committed elsewhere outside the territorial limits of the Jurisdiction of such officer. This power is therefore also extra-territorial in its operation. Again although an offence might have been committed within the territorial limits of his Jurisdiction, yet the police officer may pursue the offender any where the India outside his jurisdiction for the purpose of arresting him there without warrant. This power is also therefore clearly extra-territorial in operation. Section 57 Cr.PC prohibits detention of a person arrested withoutwarrant in custody for more than twenty-four hours in the absence of a special order of a Magistrate under section 167. And section 167(2)(b) specifically provides that no Magistrate shall authorise detention in any custody under the said section unless the accused is produced before him. Therefore a police officer has the power to pursue an offender even outside his territorial Jurisdiction and arrest him there without warrant. He is then required by section 57 Cr.PC as well as by Article 22(2) to produce the arrested person before the nearest Magistrate under section 167 and if further detention of the arrested person beyond 24 hours excluding Journey time is necessary such detention must be authorised by the order of the Magistrate under section 167, no matter whether such nearest Magistrate has the territorial jurisdiction to try the case or not. Evidently all these provisions are infested with the insignia of slackening of the rigours of the theory of terrltortality. Extraterritoriality is therefore not an unknown or unusual phenomenon in the realm of the procedure of criminal justice.

Similarly a warrant of arrest Issued by a court may. In view of section77 Cr.PC also be executed at any place in India, that is, even outside the territorial Jurisdiction of the court issuing the warrant Section 76 provides that a police officer arresting a person in execution of a warrant shall produce the arrested person within 24 hours, excluding journey time, before the court before which he is required by law to produce such person.' Therefore the person arrested will have to be produced before the nearest Magistrate as required by Article 22(2) of the Constitution, irrespective of the question that the warrant of arrest was Issued by a distant court, (may be in a different State), far away from the court of the Magistrate nearest to the place of arrest where the person concerned is required to be produced after arrest in view of the constitutional mandate of Article 22(2). Section78 Cr.PC requires that a court Issuing a warrant of arrest for executing it outsider its local Jurisdiction shall forward along with the warrant, the substance of the information against the person to be arrested with necessary documents sufficient to enable the court acting under section 81 to decide whether ball should or should not be granted to the person arrested under the warrant Section 79 provides the procedure as to how warrant of arrest can be executed outside the local jurisdiction of the court Issuing the warrant and the police officer to whom such warrant is directed for execution may execute the same outsider the local Jurisdiction of the court issuing the warrant even without the intervention or Involvement of the local police in case of emergency. When a person is arrested on the basis of a warrant, outside the local jurisdiction of the court issuing the warrantsuch arrested person can under section 81 Cr.PC obtain bail in a fit case from the Chief Judicial Magistrate or the Sessions Judge having territorial jurisdiction over the place of arrest although the warrant of arrest might have been Issued by a different court outside such territorial jurisdiction. This is also therefore an exercise in extra-territoriality. Now visualise the position. Even when an accused resides or stays outside the local limits of the jurisdiction of a court, such court may Issue a warrant of arrest against him and he may be arrested in execution of such warrant outside the local Jurisdiction of the court Issuing the warrant, but in that case also Immediately after his arrest he may get bail from the Chief Judicial Magistrate or the Sessions Judge under section 81 Cr.PC although such Magistrate on Judge does not have territorial Jurisdiction over the place of Issuance of the warrant and is not in seisin of the case in connection with which the warrant was issued by a different court exercising territorial Jurisdiction elsewhere and having seisin over the case. Again a police officer, as we have seen, may arrest an accused anywhere in India without warrant in which case also he has to produce the arrested person before the nearest Magistrate although the concerned case might have been pending elsewhere outside the territorial Jurisdiction of such 'nearest Magistrate' and in that case it will be then for the 'nearest Magistrate' to pass order authorising or disallowing further detention or for release on bail or otherwise or for production before the appropriate court. Extra-terrltorlallty writ large and galore thus. Now see, a person is apprehending arrest at the place of his normal stay in connection with a criminal investigation started on the basis of FIR lodged elsewhere in a different state. Suppose he is not allowed in the circumstances to move the local High Court for anticipatory ball under section 438 on the ground that the case in connection with which he is being sought to be arrested has been registered at a place outside the territorial jurisdiction of the local High Court. The outside Police Investigating Agency with or without the collaboration of the local police, may however insplte of lack of territorial jurisdiction lawfully come to arrest the accused within the local Jurisdiction of another High Court but such High Court will have to keep its door closed and tell the person apprehending arrest, even if he approaches, that it is powerless to entertain from him an application for anticipatory ball because the agency coming to arrest him here belongs to a different State. The local High Court in its helplessness in the situation may even offer consolatory advice to the person apprehending arrest within its Jurisdiction that let him be arrested first when he will have to be produced before the nearest Magistrate within the Jurisdiction of the local High Court and at that time he may apply for postarrest ball before such Magistrate and try his luck there before he is physically dragged from here to be produced before a distant court within a different territorial Jurisdiction. I shudder to think that section 438 Cr.PC should be so interpreted as to relegate the local High Court to such a pitiable position, perhaps worse than the position of a helpless onlooker, because while an onlooker can at least ask the chasing police party as to why they were chasing the frightened person the local High Court cannot even ask that and has to keep its eyes shout to the developing drama. If the objection to the jurisdiction of the local High Court in the matter is based on the question of territoriality, such objection, I must say. is ill-founded because the local High Court gets Jurisdiction to intervene in the matter as the person normally residing or staying within its territorial jurisdiction isapprehending arrest here within its territorial jurisdiction. This clearly satisfies the demand of territortality. That apart, if the outside police agency can come and try to arrest a person outside Us territorial Jurisdiction and Inside the territorial Jurisdiction of another High Court, certainly that High Court must respond to the demand of reciprocity to meet the situation so that Justice Itself may not be a captive in the hands of the visiting police party beyond the reach of the local High Court although the Incident of arrest is going to take place within its territorial Jurisdiction. Outside threat of arrest cannot be allowed to have a unilateral play under the nose of the local High Court within whose Jurisdiction the threat is going to be translated into reality. In such circumstance the exercise of Jurisdiction under section 438 by the local High Court,--no matter whether by granting or by rejecting the application for anticipatory ball on merits--is rather an exercise in territoriality, and such exercise of Jurisdiction is certainly not dehors the coverage of territoriality, because the applicant's apprehension effacing arrest in that locality takes place within the territorial jurisdiction of the local High Court although the threat of arrest might have originated elsewhere outside. For reasons discussed above it would further appear that the expression 'the High Court' in section 438 Indeed does not mean 'any High' Court' but obviously it includes within its fold not only the High Court having territorial Jurisdiction over the place in which the offence was committed and the FIR was lodged but also the High Court having local jurisdiction over the place where arrest in that connection is reasonably apprehended. In the Full Bench decision of the Patna High Court is Syed. Zafrul Hussan v. The Slate : AIR1983Pat194 all those aspects as discussed above elaborately did not receive necessary attention and consideration and it was held that the power to grant anticipatory ball under section 438 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 and in no other court. For reasons elaborately discussed above, with great respect I am unable to persuade myself to subscribe to the above-noted view of the Patna High Court. For reasons elaborately discussed I am of the opinion that not only the High Court within whose territorial Jurisdiction the offence has been committed and the FIR has been lodged but also the High Court within whose territorial Jurisdiction a person entertains a reasonable apprehension of being arrested within that Jurisdiction in connection with that offence also will have the jurisdiction to entertain an application for anticipatory bail from such person. The question of territortality in this context will have to be considered in the perspective of the provisions of section 438 and the purpose behind it, free from any unnecessarily Imported domination of any other provisions which may be relevant in other context The overriding effect which is Implicit in the section (that is, section 438) Itself has been only made explicit, by the West Bengal Amendment, in sub-section(IA) which says inter alia that the provisions of sub-section(1) shall have effect notwithstanding anything to the contrary contained in the Act.

44. Normally an apprehension of arrest will be entertained by a person at the place where he resides or stays. It is needless to mention that the question whether an application for anticipatory bail under section 438 Cr.PC is to be granted or not will be a matter of Judicial discretion for the court and such Judicial discretion will have to be exercised on circumspec-tion. That being so the court will have to be satisfied, Inter afta, not only that the petitioner has a reasonable apprehension (as distinct from mere speculative apprehension) of being arrested at a place within the Jurisdiction of the court in which the application is moved, but also that the application has been made bona fide in the sense that there has not been any manipulation or manoeuvring on the part of the petitioner, either evert or covert, for the purpose of artificially creating Jurisdiction for a court. Whenever an application for anticipatory ball is made before a court in the back-drop of an FIR lodged elsewhere outside the territorial jurisdiction of that court, definitely the court will have to consider whether the petitioner is a regular or bona fide resident of a place within the local limits of that court and really stays within its territorial jurisdiction or whether his claimed stay within that Jurisdiction is merely transitory, if not Illusory or is a camouflage or is merely a fugitive's exercise to evade the process of law. If the court is not satisfied in favour of the petitioner on those aspects of the matter or if it finds or it appears to the court that the application filed before it is not a bona fide application, it will reject the same on that ground without going into the merits of the matter.

45. I have already mentioned that the apex court has no decision on the point which we are now called upon to decide. In State of Assam v. R.K. Krishna Kumar, AIR 1988 SC 144 the question wa however raised before the apex court whether the Bombay High Court had jurisdiction to entertain an application for anticipatory ball because the alleged crimes were committed within the territorial limits of the State of Assam under the Jurisdiction of Cauhati High Court and it was contended that only the courts of session in Assam and the Gauhati High Court had Jurisdiction to entertain such application. The Supreme Court however did not decide that question and rather observed 'we do not think it necessary to decide whether Bombay High Court has jurisdiction to entertain the applications*. In the facts of the case the Supreme Court however directed for transfer of the applications from the Bombay High Court to the Gauhati High Court for being heard by a Division Bench there, alter setting aside the order of the Bombay High Court granting anticipatory ball of unrestricted duration passed without affording an opportunity of hearing to the State of Assam or the police authority of that State. Whatever might have been the direction of the Supreme Court given in the facts of that case, the Supreme Court however did not decide the Jurisdictional question and in express words left the question open. The High Courts are however deVlded in opinion on the question as to whether a court has Jurisdiction to entertain an application for anticipatory ball from a person who is suffering a reasonable apprehension of arrest within the territorial Jurisdiction of such court although the FIR was lodged elsewhere outside. To mention some, the single Bench decisions of the Jammu and Kashmir High Court in Mohan S(ngh v. Commr. of Police. 1983 Cr.LJ 1182, Punjab and Harlyana High Court in Ravlndra Mohan Bakshi 1984 Cr.LJ 714 and the Full Bench decision of the Patna High Court in Syed Zafrul Hassan v. State 1986 Cr.LJ 605 are against such Jurisdiction while the Division Bench decision of this court in Binod Ranjan Sinha v. State. 1982 Cr.LJ 61 = 1981 (II) CHN 44, the single Bench decisions of Karnataka High Court in Dr. L.R. Naidu v. State of Karnataka, 1984 Cr.LJ 757, Rajasthan High Court in Jodh Ram v. State of Rajasthan 1994 Cr.LJ 1962, Kerala High Court in C.T. Mathew v. Gout. of India 1985 Cr.LJ 1316. the Devlslon Bench decisions of the Bombay High Court in N.K. Nayar v.State of Maharastra 1985 Cr.LJ V887, Kerala High Court in T. Madhusoodan v. Supdt. of Police 1992 Cr.LJ 3442 and Delhi High Court in Capt Satish Kr. Sharma v. Delhi Administration 1991 Cr.LJ 950 are all in favour of such jurisdiction. In the last mentioned decision in Copt. Satish Sharma v. Delhi Administration (supra) the Division Bench of the Delhi High Court has also, after elaborate decision, recorded its inability to agree with the contrary view of the Patna High Court as expressed in its Full Bench decision in Syed Zafrul Hassan v. State (supra). I have also, for reasons already recorded, found myself unable to accept the said Patna view.

There is no doubt that in such case in addition to the State in which the application for anticipatory ball has been filed the State in which the FIR has been lodged and its concerned authorities should also be made party in the application and ordinarily notice will have to be given to all such parties. But if any difficulty is faced by the court in the matter of obtaining necessary response from the other state regarding production of case diary or other papers it may ensure receipt of such response from the machinery of the other state through the instrumentality of the local State Government in this State which must also extend necessary assistance and cooperation to the court in such matter in the interests of justice. However in view of the Supreme Court decision in Salaaddin Abdulsamad Shaikh v. State of Maharashtra, 1996 C.Cr.LR(SC) 130 1996(1)Sec 667-IT 1995(9) SC 165 an order of anticipatory ball ts now required to be of limited duration. Even apart from that decision it la also highly desirable in the interest of justice that a court granting anticipatory ball must make it conditional in term of duration, in a case where the criminal case has been registered elsewhere beyond its territorial Jurisdiction. The power to circumbscribe an order of anticipatory ball with suitable condition has been expressly conferred on the court by sub-sectlon(2) of section 438 itself. Therefore, and also in view of the Supreme Court decision in Sufauddln Abdulsamad v. State of Maharastra (supra), the court, if it at all grants anticipatory bail in favour of any person in respect of a case registered outside its territorial Jurisdiction, should expressly make the order of. anticipatory ball operative for a limited period requiring the petitioner to surrender before the appropriate court in the meantime whereupon it will be for that court to deal with the matter thereafter in accordance with law. During the hearing of this reference a question was discussed as to whether the High Court while disposing of an application for anticipatory bail in the back-drop of a case registered outside its territorial Jurisdiction, should direct the person praying for anticipatory bail to surrender before a local Magistrate within its jurisdiction so that the local Magistrate can thereafter consider whether the person concerned should be taken into custody and directed to be produced before the appropriate court in a different location outside the territorial jurisdiction of the local High Court cr should be enlarged on ball by such Magistrate with a direction to surrender before such appropriate court. In my considered view this will be an entirely redundant and meaningless exercise lacking any legal sanction. Any such procedure will not only be outside the provisions of law applicable to the matter, but will also create unnecessary and rather undesirable complications not warranted by law. A person is coming before the High Court for anticipatory ball. It is for this court either to reject or grant anticipatory ball. It cannot delegate this power to any local Magistrate. That is not permissible under law. Moreover if the High Court cannot decide whethertn a particular situation anticipatory ball should or should not be granted to a person, the local Magistrate certainly will not be in better position to decide the matter virtually contemporaneously more or less on the same materials. Therefore I am of the clear opinion that if a person approaches the High Court for anticipatory ball in connection with a case registered elsewhere outside its jurisdiction, the High Court will have to take a decision in the matter either rejecting or allowing anticipatory ball. If the High Court rejects anticipatory ball the matter ends there and law will take its own course thereafter. On the other hand if the High Court thinks that it should grant anticipatory ball it shall grant it for a limited duration with a direction to the person concerned to surrender in the meantime before the appropriate court located elsewhere outside its territorial Jurisdiction without Involving the court of any local Magistrate. If the person concerned accordingly surrenders before the appropriate outside court within the specified period it will be thereafter for that court to deal with the matter in accordance with law, and it will be then for that court to decide whether the person concerned should or should not be granted regular ball. If however the person concerned is arrested in connection with that case before the expiry of the life of the order of anticipatory ball of limited duration and before he surrenders in compliance therewith, in that event he will have to be released on bail in terms of the order of anticipatory bail by the arresting agency and the person concerned will yet have to surrender before the appropriate court within the specified time and in that case it will be then for that court to deal with the matter in accordance with law. Even if the person concerned does not surrender in terms of the order of anticipatory ball, the order will lose its force on the expiry of the period limiting its duration and law will take its own course thereafter. The reference is answered accordingly.

The law having been thus settled by this Bench, the application for anticipatory ball upon which this reference on a point of law has been made before this Full Bench as well as other such applications referred to this Bench be now sent back to the appropriate Bench for disposal in accordance with law.

13.7.98 : in view of the majority of the Special Bench consisting of Chief Justice, V. K. Gupta J'; N.A. Chowdhury J. and Panlgrahl J. the application of Sallesh Jaiswal (C.R.M. 152/98) has to be ordered in accordance with the Judgment of Panlgrahl J. All other applications seeking ball in anticipation of arrest in respect of cases which have been registered or arisen at places outside the territorial Jurisdiction of this court have to be considered in the light of the Judgment of Panlgrahl J. The judgment by Bhattacharjee J. being the minority view shall not operate until the majority view exists. All applications accordingly shall be placed before the appropriate Bench for orders as Indicated above.

P.S. Mishra, C.J.

46. I agree.

V.K. Gupta, J.

47. I agree.

N.A. Chowdhury, J.

48. I agree.

B. Panigrahl, J.

49. I agree.

G.R. Bhattacharjee, J.

50. The above observations, with due respect are not warranted as my Judgment may be operative on points not covered by or dealt with in the majority Judgment.