PRIYA INDORIA versus STATE OF KARNATAKA AND ORS. ETC.
[2023] 15 S.C.R. 525, Supreme Court of India, 2023
Outcome: Disposed off
Segment: Issues
[2023] 15 S.C.R. 525 : 2023 INSC 1008
525
CASE DETAILS
PRIYA INDORIA
v.
STATE OF KARNATAKA AND ORS. ETC.
(Criminal Appeal No. 003549-003552/2023 of 2023)
NOVEMBER 20, 2023
[B. V. NAGARATHNA AND UJJAL BHUYAN, JJ.]
HEADNOTES
Issue for consideration: Whether the power of the High Court or the 
Court of Session to grant anticipatory bail u/s 438 CrPC could be exercised 
with respect to an FIR registered outside the territorial jurisdiction of the 
said Court; and whether the practice of granting transit anticipatory bail or 
interim protection to enable an applicant seeking anticipatory bail to make 
an application u/s 438 CrPC before a Court of competent jurisdiction is 
consistent with the administration of criminal justice.
Code of Criminal Procedure, 1973 – s. 438 – Extra-territorial 
anticipatory bail – Power of the High Court or the Court of Session 
to grant u/s 438 CrPC, if could be exercised with respect to an FIR 
registered outside the territorial jurisdiction of the said Court:
Held: An interpretation giving rise to an absolute bar on the jurisdiction 
of a Court of Session or a High Court to grant interim anticipatory bail 
for an oﬀ ence committed outside the territorial conﬁ nes of a High Court 
or Court of Session may lead to an anomalous and unjust consequence 
for bona ﬁ de applicants who may be victims of wrongful, mala ﬁ de or 
politically motivated prosecution – In such circumstances, the Courts must 
balance the interest of the accused in the context of the
salutary principle 
of access to justice which is a facet of Art. 21 of the Constitution as well as 
a Directive Principle of State Policy-Art. 39(A) as also Art. 14 – Power to 
grant extra-territorial anticipatory bail should be exercised in exceptional 
and compelling circumstances only which means where, denying transit 
anticipatory bail or interim protection to enable the applicant to make an 
application u/s 438 before a Court of competent jurisdiction would cause 
irremediable and irreversible prejudice to the applicant – Having regard
526 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
to the salutary concept of access to justice, the accused can seek limited 
transit anticipatory bail or limited interim protection from the Court in the 
State in which he resides but in such an event, a ‘regular’ or full-ﬂ edged 
anticipatory bail could be sought from the competent Court in the State 
in which the FIR is ﬁ led – This may also lead the accused to choose the 
Court of his choice for seeking anticipatory bail – Thus, in order to avoid 
the abuse of the process of the Court as well as the law by the accused, it is 
necessary for the Court before which the plea for anticipatory bail is made, 
to ascertain the territorial connection or proximity between the accused and 
the territorial jurisdiction of the Court which is approached for seeking such 
relief. [Paras 26, 34, 37, 39, 40]
Code of Criminal Procedure, 1973 – s. 438 – Direction for grant 
of bail to person apprehending arrest – Grant of transit anticipatory 
bail or interim protection to enable an applicant seeking anticipatory 
bail to make an application u/s 438 CrPC before a Court of competent 
jurisdiction, if consistent with the administration of criminal justice:
Held: Accused cannot seek full-ﬂ edged anticipatory bail in a State 
where he is a resident when the FIR has been registered in a diﬀ erent State 
– However, he would be entitled to seek a transit anticipatory bail from the 
Court of Session or High Court in the State where he is a resident
which 
necessarily has to be of a limited duration so as to seek regular anticipatory 
bail from the Court of competent jurisdiction – Need for such a provision 
is to secure the liberty of the individual concerned – Since anticipatory 
bail as well as transit anticipatory bail are intrinsically linked to personal 
liberty Art. 21 of the Constitution of India and since the concept of access 
to justice is extended to such a situation and bearing in mind Art 14 thereof 
it would be necessary to give a constitutional imprimatur to the evolving 
provision of transit anticipatory bail – Otherwise, in a deserving case, 
there is likelihood of denial of personal liberty as well as access to justice 
for, by the time the person concerned approaches the Court of competent 
jurisdiction to seek anticipatory bail, it may well be too late as he may be 
arrested – If a rejection of the plea for limited/transitory anticipatory bail is 
made solely with reference to the concept of territorial jurisdiction it would 
be adding a restriction to the exercise of powers u/s 438 – This, would 
result in miscarriage and travesty of justice, aggravating the adversity of
527
the accused who is apprehending arrest and would be against the principles 
of access to justice. [Para 45, 46]
Code of Criminal Procedure, 1973 – ss. 438, 177 – Ordinary 
place of inquiry and trial, if would be inclusive of the place where the 
complainant-wife resides after being separated from her husband:
Held: As per s. 177 especially in matrimonial cases alleging cruelty 
and domestic violence by the wife, if none of the ingredients constituting 
the oﬀ ence can be said to have occurred within the local jurisdiction, that 
jurisdiction cannot be the ordinary place of investigation and trial of a 
matrimonial oﬀ ence – Adverse eﬀ ects on mental health of the wife even 
while residing in her parental home on account of the acts committed in 
the matrimonial home would amount to commission of cruelty within the 
meaning of s. 498A at the parental home – At the place where the wife takes 
shelter after leaving or being driven away from the matrimonial home on 
account of acts of cruelty committed by the husband or his relatives, would, 
also have jurisdiction to entertain a complaint – On facts, the complainant-
wife claims to have received death threats and harassment over the phone 
even after her return to her parental home in Chirawa, Rajasthan the ordinary 
place of trial may be Chirawa – By the impugned orders, the accused-
husband and his family members were granted extra-territorial anticipatory 
bail without issuing notice to the investigating oﬃ  cer and
public prosecutor 
in Police Station, Rajasthan wherein the complainant had lodged the FIR – 
Impugned orders set aside – Accused to approach the jurisdictional Court 
in Chirawa for anticipatory bail. [Paras 48, 49]
Code of Criminal Procedure, 1973 – s. 438 – Grant of anticipatory 
bail – Salient features – Stated. [Para 9.6]
Code of Criminal Procedure, 1973 – s. 438 – Grant of anticipatory 
bail – Expression “the High Court” or “the Court of Session” – 
Construction: 
Held: On a reading of s. 438 it is not found that the expression “the 
High Court” or “the Court of Session” is restricted vis-à-vis the local limits 
or any particular territorial jurisdiction – However, this does not mean that 
if an FIR is lodged in one State then the accused can approach the Court 
in another State for seeking anticipatory bail – He can do so, if at the time 
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 
ETC.
528 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
of lodging of the FIR in any State, he is residing or is present there for a 
legitimate purpose in any other State – It does not emerge that the expression 
“the High Court” or “the Court of Session” must have reference only to the 
place or territorial jurisdiction within which the FIR is lodged – If that was 
the implication, the same would have been expressly evident in the Section 
itself or by a necessary implication – Use of the word “the” before “High 
Court” and “Court of Session” also does not mean that only the High Court 
or the Court of Session, as the case may be, within whose jurisdiction the 
FIR is ﬁ led, is competent to exercise jurisdiction for the grant of transit 
anticipatory bail. [Para 44]
Code of Criminal Procedure, 1973 – s. 438 – Expression ‘transit 
anticipatory bail’ – Need and necessity for:
Held: Need and necessity for transit anticipatory bail has occasioned 
because the police has been conferred power under the CrPC to pursue 
an accused in other jurisdictions – Police is obligated to secure a transit 
remand of the accused for taking him from the place where he is arrested to 
the place where the crime is registered, for production before the competent 
magistrate in terms of the requirement of Art. 22 – Primary purpose of 
transit remand is to enable the police to shift the person in custody from 
the place of arrest to the place where the matter can be investigated – It 
appears that from the
requirement of transit remand, the necessity of 
‘transit anticipatory bail’ has arisen, for aﬀ ected person cannot be without 
a remedy. [Para 35]
Bail – Anticipatory Bail – Evolution of the safeguard – Stated. 
[Para 10]
Bail – Pre-arrest bail – Position of law in United States of India, 
United Kingdom, Kenya and India – Comparative legal study – Stated. 
[Paras 19, 20]
Bail – Limited anticipatory bail – Grant of, by the High Court 
or the Court of Session u/s 438 CrPC with respect to FIR registered 
outside the territorial jurisdiction of the said Court – Conditions to be 
fulﬁ lled – Stated. [Para 36]
Constitution of India – Art. 21 – Right to life and liberty under – 
Access to justice :
529
Held: Art. 39A which deals with equal justice and free legal aid can 
be construed to be a specie of Art 21 – Citizen must be provided a just 
adjudicatory forum to agitate his grievance and seek adjudication of what 
he may perceive as a breach of his right to the level of a fundamental right – 
Adjudicatory forum supposed to be eﬀ ective in its functioning and just, fair 
and objective in its approach, but it also must be conveniently approachable 
and aﬀ ordable – Access to justice would, thus, be a constitutional value of 
any signiﬁ cance and utility only if the delivery of justice to the citizen is 
speedy. [Para 20, 22, 23]
Interpretation of statutes – Penal statutes – Rule of statutory 
interpretation:
Held: Penal statutes are to be construed strictly – When acts are to 
be made penal and are to be visited with loss or impairment of life, liberty, 
or property, the personal liberty requires clear and exact deﬁ nition of the 
oﬀ ence – Appropriate care must be taken to adopt an interpretation which 
makes the textual interpretation match the contextual – Fundamental 
right to personal liberty and access to justice, which are constitutionally 
recognised and statutorily preserved, would be undermined through a 
restrictive interpretation – While construing a statute, constitutional Courts 
are obliged to render a contextually sensitive construction that preserves 
and furthers core constitutional values – Criminal statutes such as the 
CrPC are interpreted with
rational regard to the aim and intention of the 
legislature – Interpretation of all statutes should be favorable to personal 
liberty subject to fair and eﬀ ective administration of criminal justice. 
[Paras 25, 27, 30]
Words and phrases – Word ‘transit’ – Meaning of – Stated. [Para 
35.1]
LIST OF CITATIONS AND OTHER REFERENCES
State of Assam vs. Brojen Gogol (Dr), (1998) 1 SCC 397; Amar Nath 
Neogi vs. State of Jharkhand (2018) 11 SCC 797; Nathu Singh vs. State of 
U.P., (2021) 6 SCC 64; Navinchandra Majithia vs. State of Maharashtra 
[2000] 3 Suppl. SCR 82: (2000) 7 SCC 640; Raghubans Dubey vs. State 
of Bihar (1967) 2 SCR 423; Dashrath Rupsingh Rathod vs. State of 
Maharashtra [2014] 11 SCR 921: (2014) 9 SCC 129; Balchand Jain vs. 
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 
ETC.
530 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
State of M.P. [1977] 2 SCR 52: (1976) 4 SCC 572; Sushila Aggarwal vs. 
NCT of Delhi [2020] 2 SCR 1: (2020) 5 SCC 1; Shri Gurbaksh Singh Sibbia 
vs. State of Punjab [1980] 3 SCR 383: (1980) 2 SCC 565; Jamini Mullick 
vs. Emperor (1909) ILR 36 Cal 174, Hidayat Ullah Khan vs. The Crown, 
AIR 1949 Lah 77; Gurbaksh Singh Sibia vs. State of Punjab, 1977 SCC 
OnLine P&H 157; Teesta Atul Setalvad vs. State of Maharashtra Special 
Leave Petition (Criminal) No. 1770 of 2014; Joginder Kumar vs. State of 
U.P., [1994] 3 SCR 661: (1994) 4 SCC 260; Anita Kushwaha vs. Pushap 
Sudan [2016] 9 SCR 560: (2016) 8 SCC 509; Central Inland Water Transport 
Corporation vs. Brojo Nath Ganguly [1986] 2 SCR 278: (1986) 3 SCC 156; 
State of Bihar vs. Deokaran Nenshi [1973] 1 SCR 1004: (1972) 2 SCC 890; 
Sujata Mukherjee (Smt.) vs. Prashant Kumar Mukherjee [1997] 3 SCR 1127: 
(1997) 5 SCC 30; Y. Abraham Ajith vs. Inspector of Police, Chennai [2004] 
3 Suppl. SCR 604: (2004) 8 SCC 100; Ramesh vs. State of T.N. [2005] 2 
SCR 493: (2005) 3 SCC 507: ; Manish Ratan vs. State of M.P., [2006] 8 
Suppl. SCR 226: (2007) 1 SCC 262; Rupali Devi vs. State of U.P., [2019] 
6 SCR 577: (2019) 5 SCC 384; Re: Benod Ranjan Sinha 1981 SCC Online 
Cal 102; L.R. Naidu (Dr.) vs. State of Karnataka, 1983 SCC OnLine Kar 
206; N.K. Nayar vs. State of Maharashtra, 1985 Cri LJ 1887 – referred to.
In re: Sturman, 1984.604 F. Supp. 278. (F. E. Devine (1990); Regina 
vs. Secretary of
State for the Home Department, Ex Parte LeecH, (1994) 
Q.B. 198; Coroline Kuthie Karanja vs. Director Public Prosecutions (2021) 
eKLR – referred to.
Anticipatory Bail: An Indian Civil Liberties Innovation, International 
Journal of Comparative and Applied Criminal Justice, 14:1-2, 107-114; 
Maxwell, Treatise on Interpretation of Statutes (10 edn.), p 284; Concise 
Oxford English Dictionary, 10 th Edition, Revised, Black’s Law Dictionary, 
11 th Edition – referred to. 
OTHER CASE DETAILS INCLUDING IMPUGNED 
ORDER AND APPEARANCES
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal 
Nos.3549-3552 of 2023.
From the Judgment and Order dated 07.07.2022 of the Court of LXXI 
Addl. City Civil & Sessions Judge, Bengaluru City (CCH-72) in CRLM 
Nos.3941, 3943, 3944 and 3945 of 2022.
531
Appearances:
Vikramjit Banerjee, ASG, Tathagat Sharma, Siddhartha Sinha, Nring 
Chamwidbo Zeliang, Shivam Singhania, Saransh Kumar, Prashant Rawat, 
Advs. for the Amicus Curiae.
Kaustav Paul, Sr. Adv., Rishi Matoliya, H. D. Thanvi, Nikhil Kumar 
Singh, Achal Singh Bule, Kshitij Bikaramia, Mahendra Singh Inda, Ms. 
Sumati Sharma, Advs. for the Appellant.
Dr. Manish Singhvi, Sr. Adv., V. N. Raghupathy, M Bangaraswamy, 
S Shashank Reddy, Ms. Shubhangi Agarwal, Apurv S., Sourav Roy, 
Sandeep Kumar Jha, Vasudev Singh, Kaushal Sharma, Attarva Kotwal, 
Ms. Anjana Sharma, Sukumar, Deepak Goel, Kumar Kartikay, Advs. for 
the Respondents.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
NAGARATHNA, J.
Leave granted.
Bird’s Eye View of the Controversy:
2. We begin this Judgment by an illustration:
A person allegedly under intoxication beats another person with an 
iron rod in the State of Goa. The victim of the attack is injured. The alleged 
assailant travels to Rourkela, Odisha, where he is working in a factory. 
Meanwhile, the family of the injured registered a First Information Report 
(FIR) for the oﬀ ence of causing grievous hurt under Section 326 of the 
Indian Penal Code (IPC) at the Bicholim Police Station, Goa. On coming 
to know about the same and apprehending his arrest, the alleged assailant 
ﬁ les an application for anticipatory bail before the District and Sessions 
Judge, Sundargarh, Odisha, having jurisdiction over Rourkela. Whether the 
alleged assailant’s
application is maintainable or not? Such a question has 
come for consideration before this Court in the present appeal.
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 
ETC.
532 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
Facts of the case:
2.1. The present appeals have been ﬁ led by the complainant-wife, 
against the orders dated 07.07.2022 passed by the learned Additional City 
Civil and Sessions Judge Bengaluru City in Criminal Misc. No. 3941/2022, 
3943/2022, 3944/2022 and 3945/2022. By the said orders, the learned 
Additional City Civil and Sessions Judge Bengaluru City has granted 
anticipatory bail to the accused-husband and his family namely, accused 
Nos. 2,3 & 4 in FIR No. 43/2022 which alleged commission of oﬀ ences 
under Sections 498A, 406 and 323 of the Indian Penal Code, 1860 (‘IPC’, 
for short), registered by the complainant-wife at Chirawa Police Station, 
District Jhunjhunu, Rajasthan.
2.2. In view of the above, we take note of the social reality of criminal 
complaints relating to dowry harassment, cruelty and domestic violence 
arising out of unsuccessful matrimonial relationships. With the increasing 
migration of young people for marital and career prospects, supplemented 
by the forces of economic liberalization, a signiﬁ cant number of couples 
hail from two diﬀ erent States, with the corollary being that the matrimonial 
home of a complainant-wife is located in a diﬀ erent State from where her 
parental home is located.
3. According to the complainant-wife (appellant herein), the facts 
giving rise to the present appeal, in a nutshell as gathered from the material 
on record are:
3.1. The complainant-wife got married to the
accused-husband on 
11.12.2020 and started living in Bengaluru. 
3.2. On 09.11.2021, the accused-husband ﬁ led a divorce petition M.C. 
No. 5786/2021 under Section 13 of the Hindu Marriage Act, 1955 before 
the Principal Judge, Family Court, Bengaluru, Karnataka. Notice was issued 
in the divorce petition on 15.11.2021.
3.3. On 07.03.2022, the complainant-wife ﬁ led Transfer Petition 
No.590/22 before this Court to transfer the case from the Principal Judge, 
Family Court, Bengaluru to Court of Additional District Judge, Chirawa, 
Jhunjhunu, Rajasthan.
533
3.4. The complainant-wife registered a First Information Report (‘FIR’, 
for short) being FIR No. 43/2022 for oﬀ ences under Sections 498A, 406 and 
323 of the IPC, at Chirawa Police Station, District Jhunjhunu, Rajasthan, 
on 25.01.2022 at 06.07 pm.
3.5. At the time of marriage, two younger siblings of the complainant-
wife were still unmarried. The father of the complainant-wife, despite being a 
heart patient who had undergone Angioplasty, spent about Rs. 46,00,000/- on 
the wedding and had met the dowry demands made by the accused-husband 
and his family members being his father, mother and younger brother, i.e., 
accused Nos.2, 3 & 4. 
3.6. That the complainant-wife was a victim of harassment, torture 
and assault for the demand of dowry. The accused-husband and his family 
claimed that they had been cheated because the complainant-wife’s father 
had promised to spend one crore rupees for the marriage. The harassment 
and torture continued from 11.12.2020 until 06.07.2021. For less than a year 
of marriage that the couple spent together, the accused-husband perpetrated 
cruelty upon her by frequently threatening to divorce her and get married 
for the second time.
3.7. The accused-husband started threatening and abusing the 
complainant-wife and stated that the complainant-wife was mentally and 
physically incapable of intimate relationships. Additionally, he slapped the 
complainant-wife about a month after the marriage and said that he was 
not inclined for
marriage and preferred to live a free life. He threatened the 
complainant-wife that if she wanted to stay together, she would have to 
fulﬁ l the dowry demand.
3.8. The complainant-wife informed her in-laws, being accused Nos. 
2, 3 and 4, about the refusal of the accused-husband to consummate the 
marriage and the physical assault committed on her. Allegedly, her in-laws 
dismissed her by saying that it was not necessary to have a relationship 
with the husband and as such, being a husband, he had the right to beat her.
3.9. Deeply agonized by this experience, a demand regarding purchase 
of a scooter for the accused-husband was met. Rs.1,01,326/- was to be paid 
online from complainant-wife’s mother’s bank account on 12.02.2021.
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 
ETC. [B. V. NAGARATHNA, J.]
534 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
3.10. Thereafter, the accused-husband started demanding a car, but 
the demand could not be fulﬁ lled. The complainant-wife was harassed 
even when she was COVID-19 positive, and eventually, she was driven 
out of the matrimonial house on 02.06.2021. The complainant-wife’s father 
begged the accused-husband to take back his daughter, but the accused-
husband refused. 
3.11. Thereafter, on 11.06.2021, the complainant-wife’s father was 
forced to bring the complainant-wife back to Chirawa.
3.12. It was averred that goods and valuables worth Rs. 30,00,000/- 
were still in possession of the accused-husband and his family. The 
complainant-wife was continuously threatened with death by the accused-
husband and his family even when she was in her paternal home in Chirawa. 
When the complainant-wife came to Chirawa, the accused-husband through 
internet call and video, threatened to kill her if she came to Bengaluru and 
kept saying all the time that if she came to Bengaluru, he would get her 
killed by goons and her dead body would also not be known. 
3.13. The complainant-wife refused to undergo a medical test and 
noted that at the time she was thrown out of the accused-husband’s house, 
she had shown light blue marks near the neck and shoulder to her parents 
but being hopeful of a change in the attitude of the husband, and aﬀ ected 
by social stigma, she did not ﬁ le any report.
3.14. The Sub-Inspector, Chirawa Police Station,
Rajasthan made a 
note that from the victim’s report, the oﬀ ences under Sections 498A, 406 
and 323 of the IPC were made out and the investigation was initiated.
We reiterate that the aforesaid details are as narrated by the complainant 
and are not our inferences of facts of the case.
Impugned Orders:
The accused-husband and his family members, accused Nos. 2, 3 and 
4, sought the relief of anticipatory bail under Section 438 of the Code of 
Criminal Procedure, 1973 (‘CrPC’, for short) by ﬁ ling CRL. MISC. No. 
3941/2022, CRL.MISC. No. 3943/2022, CRL. MISC. No. 3944/2022 and 
CRL. MISC. No. 3945/2022 before the Additional City Civil and Sessions 
Judge, Bengaluru City.
535
4. The Additional City Civil and Sessions Judge, Bengaluru City, 
on 07.07.2022, allowed the applications of anticipatory bail made by the 
accused-husband and his family members, accused Nos. 2, 3 & 4. 
4.1. It is clear from a reading of the impugned orders that both 
Bagalkunte Police Station, Bengaluru and Chirawa Police Station, Rajasthan, 
were Respondents in the Bail Application. Both police stations were 
represented by the same Public Prosecutor before the Additional City Civil 
and Sessions Judge, Bengaluru City.
4.2. The learned Judge noted that the Investigating Officer had 
commenced the investigation, conducted mahazar, recorded the statement of 
witnesses and completed a major part of the investigation. It was reasoned 
that the involvement of the accused-husband and his family members, being 
accused Nos. 2, 3 and 4, was yet to be proved. The learned Judge further 
reasoned that since the alleged oﬀ ences were not punishable with death or 
imprisonment for life and are to be tried before the Magistrate, there was 
absolutely no reason to deny the beneﬁ t of anticipatory bail.
4.3. When the police of Chirawa called upon the accused-husband and 
his family members, accused Nos. 2, 3 & 4, it was realised that the learned 
Sessions Judge, Bengaluru, had granted them anticipatory bail. This was 
conﬁ rmed by the complainant-wife when she checked the Court’s website.
4.4. On 09.12.2022, this Court allowed complainant-wife’s Transfer 
Petition No.590/22 and
transferred the M.C. No. 5786/2021 from the 
Principal Judge, Family Court, Bengaluru, to the Court of Additional District 
Judge, Chirawa, Jhunjhunu, Rajasthan.
5. Being aggrieved by the grant of anticipatory bail to the accused-
husband and accused Nos. 2, 3 and 4, the complainant-wife ﬁ led W.P. 
No.48/2023 before this Court, which came to be dismissed as withdrawn 
on 17.02.2023 with liberty to pursue her legal remedies.
6. Thereafter, the present Special Leave to Appeal came to be ﬁ led and 
notice was issued by this Court on 17.03.2023. On 07.07.2023, this Court 
requested learned Additional Solicitor General Sri Vikramjit Banerjee to 
assist the Court as an amicus curiae, having regard to the ramiﬁ cations that 
would arise in the context of Section 438 of CrPC and the jurisdiction of 
the concerned Sessions Court or High Court to grant pre-arrest bail, when 
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 
ETC. [B. V. NAGARATHNA, J.]
536 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
the FIR is not registered within the territorial jurisdiction of a particular 
district or State but in a diﬀ erent State.
Submissions:
7. We have heard Sri Vikramjeet Banerjee, Additional Solicitor 
General and learned amicus, Sri Kaustav Paul, learned senior counsel for 
the complainant-wife, Dr. Manish Singhvi, learned Additional Advocate 
General for the State of Rajasthan, Sri V.N. Raghupathy, learned counsel 
for the State of Karnataka and Smt. Anjana Sharma, learned counsel for the 
accused-husband. We have also perused the material on record.
7.1. Learned senior counsel Sri Banerjee, while assisting this Court 
as an amicus, submitted as under:
i. 
Section 438 of CrPC has only used the term ‘High Court or 
the Court of Session’, as the case may be’ but has not speciﬁ ed 
whether such a ‘High Court or the Court of Session’ has to be 
the same Court which can take cognizance of the matter or can 
be any ‘High Court or Court of Session’ across the country. 
Therefore, there exists limited legislative guidance about the 
power of a Court to grant anticipatory bail for an oﬀ ence that 
is registered outside its territorial jurisdiction, in other words, 
whether ‘extra-territorial anticipatory bail’ can be granted by a 
High Court or Court of Session to a person apprehending arrest.
ii. 
Elaborating on the divergent approaches of various High Courts 
in the country regarding the grant of ‘extra-territorial anticipatory 
bail’,
learned amicus submitted that the Courts have evolved 
the ‘transit anticipatory bail’ approach to provide an equitable 
and interim relief enabling an accused travelling a residing 
in a diﬀ erent State to seek anticipatory bail. Learned amicus 
clariﬁ ed that anticipatory bail and ‘transit anticipatory bail’ are 
diﬀ erent, as the former may or may not be restricted to a time 
period, whereas the latter is always granted for a speciﬁ c time 
period, until an applicant can make an application for anticipatory 
bail before a Court that can take ‘cognizance’ of the oﬀ ence. It 
was further submitted that this Court had adopted the ‘transit 
anticipatory bail’ approach in State of Assam vs. Brojen Gogol
537
(Dr), (1998) 1 SCC 397 (Brojen Gogol) and Amar Nath Neogi 
vs. State of Jharkhand, (2018) 11 SCC 797.
iii. 
Learned amicus further submitted that this Court in Nathu 
Singh vs. State of U.P., (2021) 6 SCC 64 (Nathu Singh) had 
emphasized a liberal approach to the grant of anticipatory bail 
in view of the serious impact that the unfair denial of the same 
can have on the right to life and liberty under Article 21.
iv. 
Referring to the judgement of this Court in Navinchandra 
Majithia vs. State of Maharashtra, (2000) 7 SCC 640, learned 
amicus apprised this Court of an alternative approach that is 
based on the ‘cause of action’ theory in criminal law. In view of 
the facts of the present case, it was submitted that the cause of 
action essentially arose in the matrimonial home of the parties in 
Bengaluru, Karnataka and continued in the complainant-wife’s 
paternal home in Chirawa, Rajasthan. Therefore, Courts at either 
of these places may exercise their jurisdiction.
7.2. Learned senior counsel Sri Paul appearing for the complainant-
wife/appellant herein submitted as follows:
i. 
The right to fair and impartial investigation and trial of an oﬀ ence 
is a fundamental right not only of the accused but also of the 
complainant.
ii. 
Grant of bail by the Court at Bengaluru in an F.I.R which was not 
lodged within its territorial Jurisdiction, had left the complainant-
wife without an opportunity to oppose the same. 
iii. 
The complainant-wife could not oppose the bail
petition and 
the jurisdictional prosecutor from Chirawa, Rajasthan was also 
absent during the hearing. That only the Public Prosecutor of 
Bengaluru was present at the time of the hearing of the bail 
petition seeking anticipatory bail. The said prosecutor neither had 
the case diary of the investigation with him nor any assistance 
from the area police station where the F.I.R had been lodged. 
Hence, the impugned orders may be set aside.
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 
ETC. [B. V. NAGARATHNA, J.]
538 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
7.3. Learned senior counsel for the State of Rajasthan Dr. Manish 
Singhvi submitted as under:
i. 
The existence of territorial jurisdiction is the undergrid of 
the institution of any case before a Court of law. The concept 
of territorial jurisdiction is of cardinal significance to the 
administration of justice. More speciﬁ cally, both Chapter XIII 
of the CrPC and the existing/general criminal jurisprudence 
recognize that cognizance of an oﬀ ence and not the oﬀ ender 
is taken. That this Court in Raghubans Dubey vs. State of 
Bihar (1967) 2 SCR 423 (Raghubans Dubey) held that the 
Magistrate takes cognizance of an oﬀ ence and not the oﬀ ender. 
That territorial jurisdiction assumes paramount importance 
as the oﬀ ender, unlike the defendant in a civil suit instituted 
as per the Civil Procedure Code, 1908, has no role to play as 
far as the conferment of jurisdiction of a Court is concerned. 
That, in Dashrath Rupsingh Rathod vs. State of Maharashtra, 
(2014) 9 SCC 129, it was observed that Section 177 of the 
CrPC postulated that every oﬀ ence shall ordinarily be inquired 
into and tried by a Court within whose local jurisdiction it was 
committed.
ii. 
Elaborating on the scheme of the CrPC, Dr. Singhvi submitted 
that Chapter II of the CrPC distributes adjudicatory duties 
amongst Magistrates and Courts as per territorial jurisdiction. 
Section 14 of the CrPC speciﬁ cally determines the jurisdiction 
of local Magistrate(s).
The provisions granting power to take 
cognizance (Section 157) or power to investigate (Section 156), 
are in accordance with the concept of ‘ordinary place of inquiry 
and trial,’ as stated in Chapter XIII of the CrPC. 
iii. 
Therefore, the Court under whose territorial jurisdiction the 
offence was committed becomes the Court of competent 
jurisdiction to pass all orders, including bail and anticipatory 
bail. That the language of Section 167(2) mandating a judicial 
order for the detention of an accused beyond 24 hours, mentions 
‘nearest Magistrate’ and not Magistrate of competent jurisdiction. 
The nearest Magistrate, while possessing the power to extend
539
custody up to 15 days, does not have the power to grant bail 
as the same power is reserved only for the Magistrate who is 
competent to commit the case for trial. In this regard, learned 
senior counsel submitted that the power of ‘the High Court or 
the Court of Session’ to grant pre-arrest anticipatory bail under 
Section 438 of CrPC cannot be invoked by a Court which does 
not have territorial jurisdiction. It was further contended that a 
proper construction of the word ‘the’ preﬁ xed to both High Court 
and Sessions Court in the text of Section 438 of CrPC would 
mean the High Court or the Sessions Court having the competent 
jurisdiction. It was contended that the word ‘the’ cannot be given 
so liberal a construction that it becomes indistinguishable from 
‘any.’
iv. 
Learned senior counsel apprised this Court that even after the 
introduction of the provision of anticipatory bail in the CrPC in 
1973, many States, such as Uttar Pradesh, did not have the said 
provision for decades altogether. It was further pointed out that 
practical diﬃ  culties such as forum shopping may arise from the 
treatment of anticipatory bail as analogous to a fundamental 
right. The diﬃ  culty would arise if a High Court would grant 
pre-arrest bail for an oﬀ ence committed in a State where the 
provision for anticipatory bail does not exist. This may lead to 
a situation where the High Court or the Court of Session would 
not have the advantage of the stance of the investigating
agency 
or the assistance of the public prosecutor while adjudicating 
applications for grant of anticipatory bail. In view thereof, it was 
submitted that the High Court judgements, InRe: Benod Ranjan 
Sinha, 1981 SCC Online Cal 102 (InRe: Benod Ranjan Sinha), 
L.R. Naidu (Dr.) vs. State of Karnataka, 1983 SCC OnLine Kar 
206 (L.R. Naidu) and N.K. Nayar vs. State of Maharashtra, 1985 
Cri LJ 1887 (N.K. Nayar), permitting the grant of anticipatory 
bail for an oﬀ ence committed outside their jurisdiction, should 
be set aside. To buttress his contention, learned senior counsel 
submitted that the Justice V.S. Malimath Committee Report on 
Reforms in Criminal Justice System, in section 7.33, page 121, 
had proposed that the provision regarding anticipatory bail may 
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 
ETC. [B. V. NAGARATHNA, J.]
540 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
be retained subject to two conditions: that the Court would hear 
the Public Prosecutor; and that the petition for anticipatory bail 
should be heard only by the Court of competent jurisdiction. 
v. 
As an alternative form of relief to persons resident in a particular 
State but apprehending arrest by the police in another State, 
learned senior counsel relied upon judgements of this Court in 
Balchand Jain vs. State of M.P., (1976) 4 SCC 572 (Balchand 
Jain) and Sushila Aggarwal vs. NCT of Delhi, (2020) 5 SCC 1 
(Sushila Aggarwal), which enunciated the approach of ‘transit 
anticipatory bail’ and ‘interim protection’ that balanced the 
right to life and personal liberty enshrined in Article 21 and the 
right to freedom of movement under Article 19(1)(d) with the 
fundamental scheme of administration of criminal justice, as 
prescribed in the CrPC. It was submitted that in an age where 
the movement of a citizen is frequent and fast, an oﬀ ender may 
apprehend arrest even with respect to a statement made in a 
place of residence in one State, but the oﬀ ended person may be 
residing in another State. 
vi. 
Learned senior counsel further contended that in order to prevent 
the abuse of the process of law, this Court may hold that interim 
protection for a limited period could be granted by the Court 
nearest to the residence of the accused apprehending arrest. 
However, in order to prevent forum shopping, certain safeguards 
were
also suggested for availing grant of interim protection as 
follows:
a. 
The person must show some residence proof to establish 
that he/she had been residing in the area in which the interim 
protection is sought;
b. 
If the person is seeking interim protection apart from his/
her normal place of residence, he/she must state the reasons 
for doing so and also disclose the nature of apprehension 
of arrest in the area wherein he/she does not reside;
c. 
The interim protection should not exceed a period of 
fourteen days under normal circumstances;
541
d. 
The concerned public prosecutor of the Court wherein 
interim application is moved may be informed in advance 
about the ﬁ ling of the interim protection application. The 
public prosecutor after looking at the nature of the interim 
protection application, may contact the concerned police 
station and seek information about the stage and nature of 
the investigation of the crime committed;
e. 
The limited duration of the interim protection to secure the 
liberty of the individual from arrest in an alleged frivolous 
case would also ensure that the regular anticipatory bail is 
only granted by a Court of competent jurisdiction; and
f. 
Interim protection should not be granted unless the 
requirements enumerated under Section 438 of CrPC are 
satisﬁ ed.
7.4. Learned counsel for the State of Karnataka submitted that having 
regard to the relevant judicial precedents on Section 438 of CrPC, an 
appropriate order may be made in this case.
7.5. Smt. Anjana Sharma, learned counsel for the accused-husband 
submitted as under: 
i. 
The complainant-wife had ﬁ led a frivolous FIR against him and 
his family members based on false allegations and accusations. It 
is alleged that the sole objective of complainant-wife is to extort 
money as the accused-husband had refused to pay an amount of 
Rs. 50,00,000/-. 
ii. 
That the anticipatory bail applications had been ﬁ led for securing 
protection from immediate arrest as the liberty of the petitioner 
was at stake and instant
protection was necessary to protect his 
fundamental rights. 
iii. 
That the apprehension of arrest was during the subsistence of 
the COVID-19 pandemic and he was under continuous pressure 
and threat of being arrested. The accused-husband being the 
only earning member having a younger brother and an elderly 
ailing father, was compelled to seek protection of his life and 
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 
ETC. [B. V. NAGARATHNA, J.]
542 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
limb because the complainant-wife’s father had inﬂ uential local 
contacts in the place where the FIR was registered, i.e., Chirawa, 
Rajasthan. There was a reasonable apprehension of his arrest, 
which was the guiding factor in ﬁ ling the application before the 
Bengaluru Court. 
iv. 
Learned counsel of the accused-husband also questioned the bona 
ﬁ des of the complainant-wife by relying upon the delay in ﬁ ling 
the present petition. It was further contended that the FIR was 
ﬁ led in Chirawa Police Station with the sole objective of causing 
harassment to accused-husband and his family as the alleged 
oﬀ ences were committed in Bengaluru. That the complainant-
wife is familiar with Bengaluru as even earlier, she was working 
with a Mumbai-based company in Bengaluru.
Points for Consideration:
8. Having heard learned amicus and senior counsel and counsel for the 
respective parties and on perusal of the material on record, the following 
points would emerge for our consideration:
i. 
Whether the power of the High Court or the Court of Session to 
grant anticipatory bail under Section 438 of the CrPC could be 
exercised with respect to an FIR registered outside the territorial 
jurisdiction of the said Court?
ii. 
Whether the practice of granting transit anticipatory bail or 
interim protection to enable an applicant seeking anticipatory 
bail to make an application under Section 438 of the CrPC 
before a Court of competent
jurisdiction is consistent with the 
administration of criminal justice?
iii. 
What order?
The aforesaid questions shall be considered together as they are 
intertwined. 
Legal Framework:
9. Before discussing the points for consideration in the present appeal, 
the relevant provisions of the CrPC are exposited as under:
543
9.1. Section 2(e) of the CrPC deﬁ nes “High Court” to mean ‘the 
High Court for that State,’ in relation to any State. In relation to the Union 
Territory, it is deﬁ ned as that High Court for a State to which the Union 
Territory’s jurisdiction has been extended. In case of any other Union 
territory, it means the highest Court of criminal appeal for that territory 
other than the Supreme Court of India.
9.2. Section 2(j) deﬁ nes “local jurisdiction”, in relation to a Court 
or Magistrate to mean the local area within which the Court or Magistrate 
may exercise its powers under the CrPC. Section 14 of the CrPC states that 
the local jurisdiction of a magistrate shall be conﬁ ned to the limits deﬁ ned 
by the Chief Judicial Magistrate. Section 9 of the CrPC mandates that the 
State Government shall establish a Court of Session to be presided over by 
a judge appointed by the High Court.
9.3. A Court of competent jurisdiction is referred to in Section 41A 
of the CrPC wherein a police oﬃ  cer is empowered to arrest a person who 
fails to comply with a notice for arrest subject to the orders of such Court. 
This is a Court that is competent to try the case. Section 167(2) empowers 
the nearest Magistrate to authorize the custody of an accused for a period 
not exceeding 15 days, once he is produced before him, whether it is a 
Court of competent jurisdiction to try the case or not. If the Magistrate has 
no jurisdiction to try the case or commit it for trial, and considers
further 
detention unnecessary, he may order the accused to be forwarded to a 
Magistrate having such jurisdiction. Section 156 further postulates that any 
oﬃ  cer in-charge of a police station may investigate any cognizable case 
which a Court having jurisdiction over the local area within the limits of 
such station would have power to inquire into or try under the provisions 
of  Chapter XIII.
9.4. Section 177 in Chapter XIII of the CrPC mandates that every 
oﬀ ence shall ordinarily be inquired into and tried by a Court within whose 
local jurisdiction it was committed. In case of uncertainty or ambiguity 
regarding the local areas where an oﬀ ence is committed, Section 178 
postulates that it may be inquired into or tried by a Court having jurisdiction 
over any of such local areas where the oﬀ ence, or part thereof, may have 
been committed. Section 179 states that when the consequence of the 
oﬀ ending act ensues, it may be inquired into or tried by a Court within 
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 
ETC. [B. V. NAGARATHNA, J.]
544 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
whose local jurisdiction such thing has been done or such consequence 
has ensued.
9.5. Having regard of the aforesaid statutory framework, it would be 
apposite to distillate the core aspects of Section 438 of CrPC pertaining to 
grant of anticipatory bail which reads as under:
“438. Direction for grant of bail to person apprehending arrest.- 
(1) Where any person has reason to believe that he may be arrested 
on accusation of having committed a non-bailable oﬀ ence, he may 
apply to the High Court or the Court of Session for a direction under 
this section that in the event of such arrest he shall be released on 
bail; and that Court may, after taking into consideration, inter-alia, 
the following factors, namely:— 
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including the fact as to whether 
he has previously undergone imprisonment on conviction by a 
Court in respect of any cognizable oﬀ ence;
(iii) the possibility of the applicant to ﬂ ee from justice; and
(iv) where the accusation has been made with the object of 
injuring or humiliating the applicant by having him so arrested,
either reject the application forthwith or issue an interim order for the 
grant of anticipatory bail;
Provided that, where the High Court or, as the case may be, the 
Court of Session, has not passed any interim order under this sub-
section or has rejected the application for grant of anticipatory bail, it
shall be open to an oﬃ  cer in-charge of a police station to arrest, without 
warrant the applicant on the basis of the accusation apprehended in 
such application.
(1A) Where the Court grants an interim order under sub-section 
(1), it shall forthwith cause a notice being not less than seven days 
notice, together with a copy of such order to be served on the Public 
Prosecutor and the Superintendent of Police, with a view to give the
545
Public Prosecutor a reasonable opportunity of being heard when the 
application shall be ﬁ nally heard by the Court.
(1B) The presence of the applicant seeking anticipatory bail shall be 
obligatory at the time of ﬁ nal hearing of the application and passing of 
ﬁ nal order by the Court, if on an application made to it by the Public 
Prosecutor, the Court considers such presence necessary in the interest 
of justice.
(2) When the High Court or the Court of Session makes a direction 
under sub-section (1), it may include such conditions in such directions 
in the light of the facts of the particular case, as it may thinks ﬁ t, 
including— 
(i) a condition that the person shall make himself available for 
interrogation by a police oﬃ  cer 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 oﬃ  cer;
(iii) a condition that the person shall not leave India without the 
previous permission of the Court;
(iv) such other condition as may be imposed under sub-section 
(3) of section 437, as if the bail were granted under that section.
(3) If such person is thereafter arrested without warrant by an oﬃ  cer 
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 oﬃ  cer 
to give bail, he
shall be released on bail, and if a Magistrate taking 
cognizance of such oﬀ ence decides that a warrant should issue in the 
ﬁ rst instance against that person, he shall issue a bailable warrant in 
conformity with the direction of the Court under Sub-Section (1). 
(4) Nothing in this section shall apply to any case involving the arrest 
of any person on accusation of having committed an oﬀ ence under 
sub-section (3) of section 376 or section 376AB or section 376DA or 
section 376DB of the Indian Penal Code (45 of 1860).”
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 
ETC. [B. V. NAGARATHNA, J.]
546 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
9.6 The salient features of Section 438 of CrPC can be culled out as 
under:
i. 
It confers a statutory right upon any person who has a reason to 
believe that he may be arrested in relation to the commission of 
a non-bailable oﬀ ence.
ii. 
The statutory right consists of the right to apply before the High 
Court or the Court of Session for a direction that in the event of 
such arrest, he shall be released on bail.
iii. 
The Parliament has provided ample legislative guidance on the 
factors that may guide the High Court or the Court of Session 
while considering the application for grant of an anticipatory 
bail.
iv. 
The substantive factors consist of the nature and gravity of the 
accusation, the criminal antecedents of the applicant, the risk 
of the applicant absconding from justice or not cooperating 
with the criminal justice administration and the possibility of 
an accusation made in bad faith with the aim of injuring or 
humiliating the applicant.
v. 
In addition to the aforementioned substantive factors guiding 
the exercise of judicial discretion, Section 438 of CrPC engrafts 
certain procedural requirements. The High Court or the Court 
of Session may grant an interim order under Section 438(1) of 
CrPC in case the facts and averments in the application satisfy 
the factors laid down. However, the proviso to Section 438(1) of 
CrPC provides that if such an interim order is denied, the oﬃ  cer 
in-charge of a police
station is at liberty to arrest the applicant 
without warrant. Even if the interim order is made in favour of 
the applicant, the High Court or the Court of Session is mandated 
under Section 438 (1A) of CrPC to cause a notice of not less than 
seven days along with a copy of the interim order to be served 
on the Public Prosecutor and the Superintendent of Police, with 
a view to give the Public Prosecutor a reasonable opportunity of 
being heard when the application is ﬁ nally heard by the Court. 
The Court is also empowered under Section 438 (1B) of CrPC to
547
allow the Public Prosecutor’s application to make the presence 
of the applicant seeking anticipatory bail obligatory at the time 
of ﬁ nal hearing, if the Court deems such presence necessary in 
the interest of justice.
vi. 
The High Court or the Court of Session, under Section 438(2) 
of CrPC, is further empowered to pass any such conditions in 
light of the facts of a particular case, including
a) 
A condition that the person shall make himself available 
for interrogation by a police oﬃ  cer 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 
oﬃ  cer;
c) 
a condition that the person shall not leave India without the 
previous permission of the Court;
d) 
such other condition as may be imposed under Sub-Section 
(3) of section 437, as if the bail is being granted under that 
Section.
vii. Section 438(3) states that if such a person is thereafter arrested 
without warrant by an oﬃ  cer in charge of a police station on 
an accusation, and is prepared either at the time of arrest or at 
any time while in the custody of such oﬃ  cer to give bail, he is 
entitled to be released on bail. If a Magistrate taking cognizance 
of an oﬀ ence decides that a warrant should be issued in the ﬁ rst 
instance against that person, he is empowered to issue a bailable 
warrant in
conformity with the direction of the Court under 
Section 438(1). 
viii. The Parliament has inserted clause (4) to Section 438 of CrPC 
vide the Criminal Law (Amendment) Act, 2018, thereby 
stipulating that the remedy under Section 438 of CrPC cannot 
be resorted to by any person accused of having committed an 
oﬀ ence under Sections 376(3), 376-AB, 376-DA or 376-DB of 
the IPC. 
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 
ETC. [B. V. NAGARATHNA, J.]
548 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
ix.  The State Legislatures of Maharashtra, Odisha, Uttar Pradesh and 
West Bengal have enacted State amendments to Section 438 of 
CrPC. 
Evolution of the Safeguard of Anticipatory Bail:
10. In Shri Gurbaksh Singh Sibbia vs. State of Punjab, (1980) 2 
SCC 565 (Gurbaksh Singh Sibbia), a Constitution Bench of this Court 
speaking through Chandrachud, C.J., observed that society has a vital stake 
in preserving personal liberty as well as investigational powers of the police 
and their relative importance at any given time depends upon the complexion 
and restraints of political conditions. How best to balance these interests 
while determining the scope of Section 438 of CrPC was the focus of the 
said case while dealing with the historical background of the said provision.
10.1. The question of the grant of pre-arrest or anticipatory bail fell 
for consideration in the era when the Code of Criminal Procedure, 1898 
was in vogue and the grant of such bail was governed by Sections 497 
and 498 of the erstwhile Criminal Procedure Code. In Jamini Mullick vs. 
Emperor, (1909) ILR 36 Cal 174, the Calcutta High Court considered a 
case where the Presidency Magistrate had issued warrants for the arrest 
of certain persons as suspects in a murder case. The deceased had been 
found lying dead at night on the footpath and while at the inquest certain 
unknown persons were suspected, the Magistrate issued warrants when 
evidence casting
suspicion on four individuals was produced. Therefore, 
the suspected individuals petitioned the Calcutta High Court for grant of 
bail. The Division Bench of Justices Mitra and Coxe granted pre-arrest bail 
to the suspected individuals. The judgment was prefaced by remarking that 
ordinarily the Court did not grant bail in cases of that kind, but emphasised 
on Section 498 of the erstwhile Criminal Procedure Code to hold that the 
High Court could exercise revisionary jurisdiction and grant bail to any 
person. It was noted that the yardstick for the grant of relief of bail was 
whether there existed reasonable grounds to believe that the accused were 
guilty of the oﬀ ence. It was underlined that it was within the Magistrate’s 
jurisdiction to release the accused persons on bail but since the Magistrate 
did not consider the inconsistencies in the evidence produced to implicate 
four diﬀ erent accused for the same crime, the High Court could correct the 
Magistrate’s failure to exercise his jurisdiction.
549
10.2. The decision of the Calcutta High Court was followed by the Full 
Bench of the Lahore High Court in Hidayat Ullah Khan vs. The Crown, 
AIR 1949 Lah 77 wherein the petitioners being apprehensive of institution of 
criminal proceedings had outlined reasons for the apprehension and sought 
pre-arrest bail till the disposal of the trial. The petitioners had averred that 
such arrest would amount to victimization, and would be a cause of disgrace 
and dishonour to them. Justice Cornelius underlined that the proposed 
prosecution was not in good faith and that one of the petitioners was suﬀ ering 
from certain illnesses. The Crown had challenged the competence of the 
High Court to grant bail in anticipation of arrest, and that had occasioned 
the reference of the question from the Single Judge to the Full Bench. The 
Full Bench framed the question as under:
“Whether the High Court can grant any relief, and if so what, to a 
person seeking an order for bail, in anticipation of his arrest for an 
oﬀ ence?”
10.3. The Full Bench held that the High Court had power under 
Section 498 of the erstwhile Code of Criminal Procedure Code to make 
an order that a person who is suspected of an oﬀ ence for which he may 
he arrested by a police-oﬃ  cer or a Court, shall be admitted to bail. The 
Full Bench laid emphasis on the distinction between the jurisdiction of the 
police oﬃ  cer or Magistrate under Section 497 of the erstwhile Criminal 
Procedure Code ‘to release on bail’ and
that of the High Court under 
Section 498 of the erstwhile Criminal Procedure Code, to ‘direct that any 
person be admitted to bail.’ The Full Bench reasoned that the distinct use 
of a wide expression signiﬁ ed that the High Court’s power includes not 
merely a power to revise the exercise of discretion by police-oﬃ  cers and 
Courts of ﬁ rst instance where bail has been refused, but also include clearly 
a power in the High Court to grant bail to persons to whom the police 
and the Courts of ﬁ rst instance are not permitted by S. 497 to grant bail, 
including those persons who are not in custody. The Full Bench struck a 
cautious note that ‘such cases would necessarily be extremely rare, and 
by its very nature, the power to interfere with the discretion of an oﬃ  cial 
such as a police-oﬃ  cer exercising statutory powers perhaps at some remote 
place, at the very earliest stages of an investigation, would require to be 
exercised with the very greatest care.’ The Full Bench held that the Court 
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 
ETC. [B. V. NAGARATHNA, J.]
550 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
needs to be satisﬁ ed that if it stayed its hands until the police-oﬃ  cer had 
himself exercised his discretion in the matter and refused, upon arrest, to 
grant bail, a grave or irreparable wrong or injustice might result, while at 
the same time preserving the interest of justice in so far as they related to 
the charge against such an accused person.
10.4. It is observed that the CrPC, 1898 did not contain any speciﬁ c 
provision corresponding to the present Section 438 of CrPC. Under the old 
Code, there was a sharp diﬀ erence of opinion amongst the various High 
Courts on the question of whether Courts had the inherent power to pass 
an order of bail in anticipation of arrest, the preponderance of view being 
that it did not have such power.
10.5. The concept of ‘anticipatory bail’ was clearly explicated vide the 
41st Law Commission Report in the year 1969, whereby the Law Commission 
observed as such:
“39.9. The suggestion for directing the release of a person on bail prior 
to his arrest (commonly known as ‘anticipatory bail’) was carefully 
considered by us. Though there is a conﬂ ict of judicial opinion about 
the power of a Court to grant anticipatory bail, the majority view is 
that there is no such power under the existing provisions of the Code. 
The necessity for granting anticipatory bail arises mainly because 
sometimes inﬂ uential persons try to implicate their rivals in false 
causes for the purpose of
disgracing them or for other purposes by 
getting them detained in jail for some days. In recent times, with 
the accentuation of political rivalry, this tendency is showing signs 
of steady increase. Apart from false cases, where there are reasonable 
grounds for holding that a person accused of an oﬀ ence is not likely to 
abscond, or otherwise misuse his liberty while on bail, there seems no 
justiﬁ cation to require him ﬁ rst to submit to custody, remain in prison 
for some days and then apply for bail.
We recommend the acceptance of this suggestion. We are further 
of the view that this special power should be conferred only on the 
High Court and the Court of Session, and that the order should take 
eﬀ ect at the time of arrest or thereafter.” 
(emphasis added by us)
551
10.6. Thereafter, the 48th Law Commission of India Report, 1972 
titled ‘Some questions under the Code of Criminal Procedure Bill, 1970’ 
discussed the legislative proposal for inclusion of a provision for the grant 
of anticipatory bail. The Law Commission termed the same to be a ‘useful 
addition’ while adding a caveat that it ought to be exercised only in very 
exceptional cases. The Commission opined that the initial order should only 
be an interim order. That reasons for grant of the relief must be recorded 
and the Court ought to be satisﬁ ed that the direction is necessary in the 
interest of justice. The Law Commission also expressed a view that it was 
imperative that the ﬁ nal order of grant of anticipatory bail should only be 
made after notice to the Public Prosecutor so as to prevent the abuse of the 
process of law at the ‘instance of unscrupulous petitioners.’
10.7. Observing that the crimes, the criminals and even the 
complainants can occasionally possess extraordinary features, in Gurbaksh 
Singh Sibbia, it was stated that “when the even ﬂ ow of life becomes turbid, 
the police can be called upon to inquire into charges arising out of political 
antagonism”. The powerful processes of criminal law can then be perverted 
for achieving extraneous ends. Attendant upon such investigations, when 
the police are not free agents within their sphere of duty, is a great amount 
of inconvenience, harassment and humiliation that can even take the form 
of the
parading of a respectable person in handcuﬀ s, apparently on way to 
a Court of justice. The foul deed is done when an adversary is exposed to 
social ridicule and obloquy, no matter when and whether a conviction is 
secured or is at all possible. It is in order to meet such situations, though 
not limited to these contingencies, that the power to grant anticipatory bail 
was introduced into the Code of 1973.
10.8. Despite the inclusion of the provision for anticipatory bail 
in the CrPC after the acceptance of the aforesaid recommendation, the 
expression “anticipatory bail” remained undeﬁ ned in the CrPC. This 
Court in Balchand Jain observed that “anticipatory bail” means “bail in 
anticipation of arrest.” This Court has exposited that an application for 
anticipatory bail could be made by the accused either at a stage before an 
FIR is ﬁ led or at a stage when an FIR is registered but the charge sheet 
has not been ﬁ led, and the investigation is underway. Alternatively, it can 
be moved after the completion of investigation. The stage of investigation 
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 
ETC. [B. V. NAGARATHNA, J.]
552 
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[2023] 15 S.C.R.
has a bearing on the conditions to be imposed while granting the relief 
of anticipatory bail. 
10.9. A crucial diﬀ erence between the pre-arrest bail order under 
Section 438 of CrPC and the bail order under Sections 437 and 439 of CrPC 
is the stages at which the bail order is passed. 
11. Greater clarity on the contours of judicial discretion in the grant 
of pre-arrest bail emerged out of the judgement of the Full Bench of the 
Punjab and Haryana High Court in  Gurbaksh Singh Sibia vs. State of 
Punjab, 1977 SCC OnLine P&H 157. The Full Bench of the Punjab and 
Haryana High Court had rejected the application for bail while furnishing 
the reasons that the power under Section 438 of CrPC is of an extraordinary 
character and must be exercised sparingly in exceptional cases. The said 
judgment was carried in appeal before this Court. Thereafter, the law on 
anticipatory bail was further crystallized by the Constitution Bench of this 
Court in Gurbaksh Singh Sibbia, where it disagreed with the reasoning of 
the Full Bench of Punjab and Haryana High Court.
11.1. It was observed that since the denial of bail amounts to 
deprivation of personal liberty, the Court should lean against the imposition 
of unnecessary restrictions on the scope of Section 438 of CrPC, especially 
when not imposed by the legislature in terms of the Section. It was observed 
that Section 438 of CrPC is a procedural provision which is concerned with 
the
personal liberty of the individual, who is entitled to the beneﬁ t of the 
presumption of innocence since he is not, on the date of his application for 
anticipatory bail, convicted of the oﬀ ence in respect of which he seeks bail. 
An over-generous infusion of constraints and conditions which are not to 
be found in Section 438 of CrPC can make its provisions constitutionally 
vulnerable since the right to personal freedom cannot be made to depend 
on compliance with unreasonable restrictions. The beneﬁ cent provision 
contained in Section 438 of CrPC must be saved, not jettisoned. The 
considerations for grant of anticipatory bail were discussed in paragraph 
31 of the said judgment which reads as under:
“31. In regard to anticipatory bail, if the proposed accusation appears to 
stem not from motives of furthering the ends of justice but from some 
ulterior motive, the object being to injure and humiliate the applicant 
by having him arrested, a direction for the release of the applicant on
553
bail in the event of his arrest would generally be made. On the other 
hand, if it appears likely, considering the antecedents of the applicant, 
that taking advantage of the order of anticipatory bail he will ﬂ ee from 
justice, such an order would not be made. But the converse of these 
propositions is not necessarily true. That is to say, it cannot be laid 
down as an inexorable rule that anticipatory bail cannot be granted 
unless the proposed accusation appears to be actuated by mala ﬁ des; 
and, equally, that anticipatory bail must be granted if there is no fear 
that the applicant will abscond. There are several other considerations, 
too numerous to enumerate, the combined eﬀ ect of which must weigh 
with the Court while granting or rejecting anticipatory bail. The nature 
and seriousness of the proposed charges, the context of the events 
likely to lead to the making of the charges, a reasonable possibility 
of the applicant’s presence not being secured at the trial, a reasonable 
apprehension that witnesses will be tampered with and “the larger 
interests of the public or the State” are some of the considerations 
which the Court has to keep in mind while deciding an application 
for anticipatory bail.” 
11.2. On the question of evaluation of the consideration as to whether 
the applicant is likely to abscond, it was observed that there can be no 
presumption that the wealthy and the mighty will submit themselves to 
trial and the humble and the poor will run
away from the course of justice, 
any more than there can be a presumption that the former are not likely to 
commit a crime and the latter are more likely to commit it. Ultimately, the 
Constitution Bench clariﬁ ed the following points in paragraphs 35 to 39 
which are extracted as under:
“35. Section 438(1) of the Code lays down a condition which has 
to be satisﬁ ed before anticipatory bail can be granted. The applicant 
must show that he has “reason to believe” that he may be arrested for 
a non-bailable oﬀ ence. The use of the expression “reason to believe” 
shows that the belief that the applicant may be so arrested must be 
founded on reasonable grounds. Mere ‘fear’ is not ‘belief”, for which 
reason it is not enough for the applicant to show that he has some sort 
of a vague apprehension that some one is going to make an accusation 
against him, in pursuance of which he may be arrested. The grounds 
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 
ETC. [B. V. NAGARATHNA, J.]
554 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
on which the belief of the applicant is based that he may be arrested 
for a non-bailable oﬀ ence, must be capable of being examined by the 
Court objectively, because it is then alone that the Court can determine 
whether the applicant has reason to believe that he may be so arrested. 
Section 438(1), therefore, cannot be invoked on the basis of vague 
and general allegations, as if to arm oneself in perpetuity against a 
possible arrest. Otherwise, the number of applications for anticipatory 
bail will be as large as, at any rate, the adult populace. Anticipatory 
bail is a device to secure the individuals liberty; it is neither a passport 
to the commission of crimes nor a shield against any and all kinds of 
accusations, likely or unlikely.
36. Secondly, if an application for anticipatory bail is made to the 
High Court or the Court of Session it must apply its own mind to the 
question and decide whether a case has been made out for granting such 
relief. It cannot leave the question for the decision of the Magistrate 
concerned under Section 437 of the Code, as and when an occasion 
arises. Such a course will defeat the very object of Section 438.
37. Thirdly, the ﬁ ling of a ﬁ rst information report is not a condition 
precedent to the exercise of the power under Section 438. The 
imminence of a likely arrest founded on a reasonable belief can be 
shown to exist even if an FIR is not yet ﬁ led.
38. Fourthly, anticipatory
bail can be granted even after an FIR is ﬁ led, 
so long as the applicant has not been arrested.
39. Fifthly, the provisions of Section 438 cannot be invoked after the 
arrest of the accused. The grant of “anticipatory bail” to an accused 
who is under arrest involves a contradiction in terms, insofar as the 
oﬀ ence or oﬀ ences for which he is arrested, are concerned. After arrest, 
the accused must seek his remedy under Section 437 or Section 439 of 
the Code, if he wants to be released on bail in respect of the oﬀ ence 
or oﬀ ences for which he is arrested.”
11.3. Cautioning the Courts against granting blanket order of 
anticipatory bail so as to cover or protect any and every kind of allegedly 
unlawful activity, or eventuality, it was observed that there must be a 
genuine apprehension of arrest by the applicant and there must be something
555
tangible to go by on the basis of which it can be said that the applicant’s 
apprehension of arrest is genuine. Otherwise, a blanket order of anticipatory 
bail is bound to cause serious interference with both the right and the duty 
of the police in the matter of investigation because regardless of what kind 
of oﬀ ence is alleged to have been committed by the applicant, when an 
order of bail comprehends allegedly unlawful activity of any description 
whatsoever, this will prevent the police from arresting the applicant even 
if he commits, say, a murder in the presence of the public. Therefore, the 
Court which grants anticipatory bail must take care to specify the oﬀ ence 
or oﬀ ences in respect of which alone the order will be eﬀ ective. The power 
should not be exercised in a vacuum. 
12. While adjudicating on a question as to whether the protection 
granted under Section 438 of CrPC should be limited to a ﬁ xed period 
so as to enable the person to surrender before the trial Court or not, a 
Constitution Bench of this Court in Sushila Aggarwal took note of later 
doctrinal developments as well as reports of the Law Commission of India. 
In this case, two questions were considered by the Constitutional Bench:
1. 
Whether the protection granted to a person under Section 438 
of CrPC should be limited to a ﬁ xed period so as to enable the 
person to surrender before the trial Court and seek regular bail?
2. 
Whether the life of an anticipatory bail order should end
at the 
time and stage when the accused is summoned by the Court?
12.1. Regarding the ﬁ rst question, this Court held that the protection 
granted to a person under Section 438 of CrPC should not invariably be 
limited to a ﬁ xed period; it should enure in favour of the accused without 
any restriction on time. Normal conditions under Section 437(3) read with 
Section 438(2) of CrPC should be imposed. If there are speciﬁ c facts or 
features in regard to any oﬀ ence, it is open for the Court to impose any 
appropriate condition (including ﬁ xed nature of relief, or its being tied to 
an event), etc.
12.2. As regards the second question referred to this Court, it was held 
that the life or duration of an anticipatory bail order does not end normally 
at the time and stage when the accused is summoned by the Court, or when 
charges are framed, but can continue till the end of the trial. Again, if there 
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 
ETC. [B. V. NAGARATHNA, J.]
556 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
are any special or peculiar features necessitating the Court to limit the tenure 
of anticipatory bail, it is open for it to do so.
12.3 The following clariﬁ cations were also issued which are to be 
borne in mind while dealing with an application under Section 438 of CrPC:
“a) When an application is made seeking anticipatory bail, it should 
be based on concrete facts (and not vague or general allegations) 
relatable to one or other speciﬁ c oﬀ ence. The application should 
contain bare essential facts relating to the oﬀ ence, and why the 
applicant reasonably apprehends arrest, as well as his side of 
the story. This is necessary in order to evaluate the threat or 
apprehension, its gravity or seriousness and the appropriateness 
of any condition that may have to be imposed. An application 
should be moved prior to the ﬁ ling of an FIR, so long as the 
facts are clear and there is reasonable basis for apprehending 
arrest.
b) 
It is advisable for the Court, to issue notice to the Public 
Prosecutor and obtain facts, even while granting limited interim 
anticipatory bail.
c) 
Nothing in Section 438 CrPC, compels or obliges Courts to 
impose conditions limiting relief in terms of time, or upon ﬁ ling 
of FIR, or recording of statement of any witness, by the police, 
during investigation or inquiry, etc. The Court has to consider 
the nature of the oﬀ ence, the role of the person, the likelihood 
of his inﬂ uencing the course of
investigation, or tampering 
with evidence (including intimidating witnesses), likelihood of 
ﬂ eeing justice (such as leaving the country), etc. By virtue of 
Section 438(2), the Courts would be justiﬁ ed and ought to impose 
conditions spelt out in Section 437(3). Conditions which limit 
the grant of anticipatory bail may be imposed, depending on the 
facts of the case but not be invariably imposed.
d) 
Courts ought to be generally guided by considerations such as 
the nature and gravity of the oﬀ ences, the role attributed to the 
applicant, and the facts of the case. Whether to grant or not is 
a matter of discretion and similarly if bail is to be granted, the
557
kind of conditions to be imposed or not to be imposed depends 
upon the facts of each case and subject to the discretion of the 
Court. 
e) 
Anticipatory bail granted can, depending on the conduct and 
behaviour of the accused, continue after ﬁ ling of the charge-sheet 
till the end of trial.
f) 
An order of anticipatory bail should not be blanket in the sense 
that it should not enable the accused to commit further oﬀ ences 
and claim relief of indeﬁ nite protection from arrest. It must be 
conﬁ ned to the particular oﬀ ence or oﬀ ences relatable to an 
incident, for which apprehension of arrest is sought. It cannot 
operate in respect of a future incident that involves commission 
of an oﬀ ence.
g) 
The grant of an anticipatory bail does not in any manner limit or 
restrict the rights or duties of the police or investigating agency, 
to investigate into the charges against the person who seeks and 
is granted pre-arrest bail.
h) 
The observations in Gurbaksh Singh Sibbia regarding limited 
custody or deemed custody in the context of Section 27 of 
the Evidence Act, does not require the accused to separately 
surrender and seek regular bail. 
i) 
It is open to the police or the investigating agency to move the 
Court concerned, which grants anticipatory bail, for a direction 
under Section 439(2) to arrest the accused, in the event of 
violation of any term, such as absconding, non-cooperating 
during investigation, evasion, intimidation or inducement to 
witnesses with
a view to inﬂ uence outcome of the investigation 
or trial, etc.
j) 
The correctness of an order granting bail can be considered 
by the appellate or superior Court at the behest of the State or 
investigating agency, and set aside the same on the ground that 
the Court granting it did not consider material facts or crucial 
circumstances. This does not amount to cancellation in terms of 
Section 439(2) CrPC.
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 
ETC. [B. V. NAGARATHNA, J.]
558 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
k) 
In Siddharam Satlingappa Mhetre vs. State of Maharashtra, 
(2011) 1 SCC 694 (and other similar judgments), it was held that 
no restrictive conditions at all can be imposed, while granting 
anticipatory bail are hereby overruled. Likewise, the decision 
in Salauddin Abdulsamad Shaikh vs. State of Maharashtra, 
(1996) 1 SCC 667 and subsequent decisions which laid down 
restrictive conditions, or terms limiting the grant of anticipatory 
bail, to a period of time were overruled.”
13. In Nathu Singh, the complainants ﬁ led a Special Leave Petition 
challenging the order of the High Court of Judicature at Allahabad, which 
dismissed the anticipatory bail application ﬁ led by the accused and on 
granting them 90 days to surrender before the trial Court and to seek regular 
bail, granted them protection from coercive action during the said period 
of 90 days. 
13.1. The Court after referring to the Constitution Bench Judgment in 
the case of Sushila Aggarwal considered the proviso to Section 438(1) of 
CrPC and observed that the proviso does not create any rights or restrictions. 
It is only clariﬁ catory in nature. The Court then considered the question 
whether, while dismissing an application seeking anticipatory bail, the plea 
made by the applicant seeking protection for some time as he or she is the 
primary caregiver or breadwinner of his or her family members and needs 
to make arrangements for them and therefore even if a
strict case for grant 
of anticipatory bail is not made out, and rather, where the investigating 
authority has made out a case for custodial investigation, whether the Court 
may exercise its discretion to grant protection against arrest for a limited 
period. It was observed that if such an order has to be passed, it must be 
narrowly tailored to protect the interests of the applicant while taking 
into consideration the concerns of the investigating authority and must be 
supported by reasons.
13.2. It was held that in the impugned order of the High Court, it had 
dismissed the application seeking anticipatory bail on the basis of the nature 
and gravity of the oﬀ ence by not granting protection from arrest without 
assigning any reason. Secondly, the granting of the relief for a period of 
90 days did not take into consideration the concerns of the investigating 
agency, the complainant or the proviso under Section 438(1) of CrPC, which
559
necessitates that the Court pass such an exceptional discretionary protection 
order for the shortest duration that is reasonably required. A period of 90 
days, or three months, is an unreasonable period. Therefore, the impugned 
orders were set aside leaving it open to the investigating agency to proceed 
with the matters in accordance with law and complete the investigation. If 
the applicants were in the meanwhile in judicial custody, their applications 
for regular bail could be considered by the competent Court, uninﬂ uenced 
by the observations made in the order.
14. After marshalling the entire range of juridical materials on the 
subject of anticipatory bail and the perception of its abuse, the Constitution 
Bench in Sushila Aggarwal held the judgements of this Court that postulated 
greater limitations on the grant of anticipatory bail to be not good law.
15. The upshot of the above discussion is that the march of criminal 
law has been towards chiselling an equitous remedy that strikes a delicate 
balance between the imperative of personal liberty with that of eﬀ ective 
administration of criminal law. 
16. This Court, while being seized of a challenge to grant extra-
territorial anticipatory bail, had kept the question of law open in the following 
two cases:
(i) 
In Brojen Gogol, this Court considered the Assam Police’s 
challenge to the Bombay High Court’s grant of anticipatory bail 
to an accused who was allegedly involved in oﬀ ences perpetrated 
in
Guwahati. Accordingly, it held that the anticipatory bail 
application ought to be made before the Gauhati High Court as 
the alleged activities had been perpetrated within its territorial 
jurisdiction. Consequently, this Court set aside the impugned 
order of the Bombay High Court granting anticipatory bail on the 
ground that the prosecuting agency was not heard. However, this 
Court held that it did not think it necessary to decide whether the 
Bombay High Court had jurisdiction to entertain the anticipatory 
bail application. It was held that status quo would be maintained 
until the High Court of Gauhati passed appropriate order(s) on 
the anticipatory bail application.
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 
ETC. [B. V. NAGARATHNA, J.]
560 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
(ii) This Court also had the occasion to adjudicate upon Teesta 
Atul Setalvad vs. State of Maharashtra, Special Leave Petition 
(Criminal) No. 1770 of 2014, whereby the applicant seeking 
extra-territorial anticipatory bail had appealed against the 
Bombay High Court’s order. The Bombay High Court had 
permitted the applicant for extra-territorial anticipatory bail to 
move before the appropriate Court in Gujarat for the said relief 
and granted transit bail for four weeks so as to enable the same. 
This Court disposed of the Special Leave Petition No. 1770 of 
2014 on 24.02.2014 without interfering with the Bombay High 
Court’s judgement while observing that the question of law about 
the jurisdiction of the High Court was kept open. 
(iii) Therefore, the present appeal constitutes the third of the cases 
where this crucial question of public importance has been raised 
before this Court by the appellant who is the complainant.
Discussion:
17. Before proceeding further, the reasoning and outcome of some of 
the High Court judgements on the grant of extra-territorial anticipatory bail 
under Section 438 of CrPC are tabulated as under:
Case Name
High Court
Outcome and Reasoning
1. 
Pritam Singh vs. 
State of Punjab, 
1980 SCC 
OnLine Del 336
(Pritam Singh)
Delhi High Court 
regarding FIR 
registered in the 
State of Punjab
The High Court allowed accused’s plea 
under Section 438 of CrPC and directed 
that the accused be released
in the event 
of arrest upon furnishing personal bond 
and surety. It was reasoned that one need 
not mix up the jurisdiction relating to 
cognizance of an offence with that of 
granting bail. Bails are against arrest 
and detention. Therefore, an appropriate 
Court within whose jurisdiction the 
arrest takes place or is apprehended or is 
contemplated will also have jurisdiction 
to grant bail to the person concerned. If 
the Court of Session or the High Court has 
the jurisdiction to grant interim bail, then 
the power to grant full anticipatory bail 
will emanate from the same jurisdiction.
561
Case Name
High Court
Outcome and Reasoning
Concurrent jurisdiction in Courts situated 
in diﬀ erent States is not outside the scope 
of the CrPC. It is not possible to divide the 
jurisdiction under S. 438 of CrPC into an 
ad interim and ﬁ nal, but it is permissible 
if it is so expedient or desirable, for any of 
the Courts competent to take cognizance 
of and to try an oﬀ ence and the Courts 
competent to grant bail can also grant 
anticipatory bail for a speciﬁ ed period 
only. h
2. 
InRe: Benod 
Ranjan Sinha, 
1981 SCC 
Online Cal 102
(InRe: Benod 
Ranjan Sinha) 
Calcutta High 
Court regarding 
FIR registered in 
the State of Bihar.
The High Court granted relief under 
Section 438 of the CrPC to the petitioner 
therein and reasoned that it has jurisdiction 
to entertain the application for anticipatory 
bail of a petitioner who resides within the 
jurisdiction of the said Court, though he 
apprehends arrest in connection with a 
case which has been initiated outside the 
jurisdiction of this Court.
3. 
L.R. Naidu 
(Dr.) vs. State of 
Karnataka, 1983 
SCC OnLine Kar 
206
(L.R. Naidu)
Karnataka High 
Court regarding 
FIR registered in 
the State of Kerala 
The anticipatory bail applicant was 
granted protection from arrest with the 
direction that upon a future arrest, he shall 
be released on bail on his executing a bond 
of a sum of Rs. 3,000/- with a surety in 
a like sum to the police’s satisfaction. He 
was directed to approach the appropriate 
Court in Kerala
State within twenty 
days from the date of his arrest by the 
Cannanore Police. It was held that in 
case he made any such application within 
the time referred to above, the order of 
anticipatory bail would be in force till 
such time as that Court passes an order. 
In case the petitioner does not make any 
application the order would cease to be 
in force thereafter i.e., from the 21st day 
of his arrest.
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 
ETC. [B. V. NAGARATHNA, J.]
562 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
Case Name
High Court
Outcome and Reasoning
4. 
C.L. Mathew 
vs. Govt. of 
India, 1984 SCC 
Online Ker 207
(C.L. Mathew)
Kerala High Court 
regarding oﬀ ences 
committed in 
Jamshedpur, 
Bihar.
The High Court granted anticipatory bail. 
It noted that an oﬀ ence may be committed 
in one State and that the applicant may 
reside in another State; or he may have 
residence in several States. He may be 
arrested while he is on the move, after 
committing the crime, before he reaches 
his place of residence in another State. It 
cannot be that he can be armed with orders 
of anticipatory bail from every High 
Court; it cannot also be that conﬂ icting 
orders are issued by diﬀ erent High Courts 
in respect of the same offence and in 
respect of the same alleged oﬀ ender. A 
balance has therefore to be struck keeping 
in view the constitutional guarantee 
under Articles 21 and 22, the procedural 
safeguards under the Criminal Procedure 
Code and the jurisdiction conferred on the 
High Courts in India.
It was concluded that the High Court 
of the State will have to restrict the 
scope of the relief of anticipatory bail to 
arrests made within that State. Arrests 
made outside the State will thus not be 
protected by an order under S. 438 of 
CrPC unless the oﬀ ence itself is alleged 
to be committed within the State.
5. 
N.K. Nayar 
vs. State of 
Maharashtra, 
1985 Cri LJ 
1887
(N.K. Nayar)
Bombay High 
Court with 
respect to an 
FIR
registered in 
Haryana.
The High Court laid emphasis on the 
expression ‘apprehension of arrest’ 
and held that if the arrest is likely to be 
aﬀ ected within a jurisdiction beyond that 
of the High Court, then the concerned 
person may apply to the High Court for 
anticipatory bail even if the oﬀ ence is 
committed in some other State.
563
Case Name
High Court
Outcome and Reasoning
6. 
Syed Zafrul 
Hassan vs. State, 
1986
SCC Online Pat 3
(Syed Zafrul 
Hassan)
Patna Bench of 
the Patna High 
Court with respect 
to FIR registered 
at Jhinkpani 
police station 
which falls in 
the district of 
Singhbhum and 
comes squarely 
within the 
jurisdiction of the 
Ranchi Bench of 
the Patna High 
Court.
The High Court denied the relief and 
reasoned that an application under Sec. 
438 of CrPC cannot be entertained in 
respect of oﬀ ences committed in another 
territory for want of jurisdiction. The High 
Court laid emphasis on ‘the deliberate 
designed phraseology’ of Section 438 
of CrPC and reasoned that “the High 
Court” or “the Court of Session” cannot 
be conﬂ ated with “any High Court” or 
“any Court of Session”. Denying that 
the word ‘the’ could be substituted with 
‘any’, the High Court reasoned that such 
a substitution would be doing ‘plain 
violence to the specific language’ of 
Section 438 of CrPC.
7.  
Sailesh Jaiswal 
vs. State of West 
Bengal, 1998 
SCC Online Cal 
215 (Sailesh 
Jaiswal)
Calcutta High 
Court
The Full Bench of Calcutta High Court 
held that an application under Sec. 438 
of CrPC cannot be entertained in respect 
of oﬀ ences committed in another State 
for want of jurisdiction. The High Court 
reasoned that the exercise of jurisdiction 
of anticipatory bail by any other Court 
namely the High Court or the Court of 
Session beyond the local limits of their 
jurisdiction is limited to
the extent of 
consideration of bail for the transitional 
period. Accordingly, denied relief of 
anticipatory bail but granted transit 
anticipatory bail.
8.  
Sadhan Chandra 
Kolay vs. State, 
1998 SCC 
Online Cal 
382 (Sadhan 
Chandra Kolay)
Calcutta High 
Court with 
respect to oﬀ ence 
committed outside 
the State of West 
Bengal.
The Court noted that in view of Article 
214 of the Constitution, the territorial 
jurisdiction of a particular High Court of 
a particular State ordinarily shall not be 
extended to the territory of any other State 
and exercise of any power or jurisdiction 
in connection with any matter outside the 
State would be in excess of the power 
conferred by the law.
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 
ETC. [B. V. NAGARATHNA, J.]
564 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
Case Name
High Court
Outcome and Reasoning
Section 438 of CrPC confer special 
powers only on the Court of Session and 
the High Court to grant anticipatory bail 
in the event of arrest by the police. The 
legislative intention behind this provision 
is to prevent undue harassment by the 
police of an innocent citizen or class of 
citizens. So far as the Sessions Court is 
concerned, its power is limited to the 
territorial jurisdiction of the Sessions-
Division and it cannot exercise the power 
under Section 438 of CrPC outside 
its Sessions-Division. Therefore, it is 
clear that the Sessions Judge has got 
no authority to exercise the power or 
jurisdiction under Section 438 of CrPC 
beyond the local limits of the territorial 
jurisdiction of the Sessions-Division. 
The High Court held that the petition for 
anticipatory bail under Section 438 of 
CrPC in connection with an oﬀ ence in 
any out-station cannot be entertained by 
the High Court and as such the petition 
was not maintainable.
9. 
Honey Preet 
Insan vs. State, 
2017 SCC 
Online Del 
10690 (Honey 
Preet Insan)
Delhi High Court 
regarding oﬀ ence 
registered in the 
State of Haryana.
The High Court noted that the applicant, 
a resident of Sirsa in Haryana, had sought 
anticipatory bail from a Delhi Court by 
giving a Delhi address in addition to a 
Sirsa address. The High Court emphasized 
that it was duty bound to consider whether 
the applicant is a regular or bona ﬁ
de 
resident of a place within the local limits 
of that Court and the application is not a 
camouﬂ age to evade the process of law. 
If the Court is not satisﬁ ed on this aspect, 
the application deserves to be rejected 
without going into the merits of the case
565
Case Name
High Court
Outcome and Reasoning
The High Court also denied the plea of 
transit anticipatory bail for period of three 
weeks to enable the applicant to move 
the Punjab and Haryana High Court. The 
High Court reasoned that the applicant 
was at large and her counsel had refused to 
undertake to join investigation upon being 
granted interim protection. Therefore, the 
High Court concluded that the application 
is not bona ﬁ de and has been ﬁ led with a 
view to gain time.
10. 
Teesta Atul 
Setalvad vs. State 
of Maharashtra, 
ABA No.14/2014
(Teesta Atul 
Setalvad)
Bombay High 
Court regarding 
oﬀ ence registered 
in the State of 
Gujarat
The High Court granted transit bail for 
four weeks and allowed the applicant 
to move before the appropriate Court in 
Gujarat for said relief.
11. 
Gameskraft 
Technologies 
vs. State of 
Maharashtra, 
2019 SCC 
OnLine Kar 520 
(Gameskraft 
Technologies)
Karnataka High 
Court regarding 
oﬀ ence registered 
in the State of 
Maharashtra.
The High Court recognized that it is a 
well-settled proposition of law that though 
the alleged oﬀ ence had not taken place 
within the jurisdiction of the said Court, it 
can grant bail though it has no jurisdiction. 
The High Court allowed the application, 
directing that they must be immediately 
released if they are arrested, subject to the 
condition that the applicant ‘shall appear 
before the jurisdictional Court within 
15 days or within 15 days from the date 
of their arrest by the
concerned police 
whichever was earlier.
12. 
Surya Pratap 
Singh vs. State of 
Karnataka, 2019 
SCC Online Del 
9533 (Surya 
Pratap Singh)
Delhi High 
Court regarding 
oﬀ ence registered 
in the State of 
Karnataka.
The High Court granted two weeks to 
the applicant to make an appropriate 
application before the concerned Court. 
Protection was granted for two weeks.
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 
ETC. [B. V. NAGARATHNA, J.]
566 
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[2023] 15 S.C.R.
Case Name
High Court
Outcome and Reasoning
13. 
Nikita Jacob 
vs. State of 
Maharashtra, 
2021 SCC 
OnLine Bom 
13919 (Nikita 
Jacob)
Bombay High 
Court  regarding 
oﬀ ence registered 
in New Delhi.
Reasoned that the imperative of temporary 
relief to protect liberty and to avoid 
immediate arrest may be relied upon to 
grant interim bail for an oﬀ ence that was 
allegedly committed outside the Court’s 
territorial jurisdiction. 
14.  Ajay Agarwal 
vs. The State of 
U.P.,2022 SCC 
OnLine All 689 
(Ajay Agarwal)
Allahabad High 
Court regarding 
oﬀ ence registered 
in the State of 
Maharashtra.
The High Court noted that transit bail 
is protection from arrest for a certain 
deﬁ nite period as granted by the Court 
granting such transit bail. Therefore, the 
Court granted protection to the accused 
for a period of six weeks to enable him to 
approach the competent Court for seeking 
appropriate relief.
15.  Amita Garg 
vs. State of 
U.P., 2022 SCC 
Online All 463 
(Amita Garg)
Allahabad High 
Court regarding 
oﬀ ence registered 
in the State of 
Rajasthan.
The High Court noted that there is no 
legislation or law which deﬁ nes “transit 
or anticipatory bail’ in definitive or 
speciﬁ c terms. The said Court explained 
that the transit anticipatory bail precedes 
detention of the accused and is eﬀ ective 
immediately at the time of the arrest. 
Transit bail is protection from arrest 
for a certain deﬁ nite period as directed 
by the
Court granting such transit bail. 
Therefore, when an accused is arrested 
in accordance with the order of a Court 
and whereas the accused needs to be tried 
in some other competent Court having 
jurisdiction in the aforementioned matter, 
the accused is given bail for the transitory 
period i.e., the time period required for 
the accused to reach that competent Court 
from the place he is arrested in.
The regular Court would consider such 
anticipatory bail, on its own merits 
and shall decide such anticipatory bail 
application. Therefore, it could be easily 
said that transit bail is a temporary relief 
which an accused gets for a certain period
567
Case Name
High Court
Outcome and Reasoning
of time. The High Court concluded that 
there is no fetter on the part of the High 
Court in granting a transit anticipatory bail 
to enable the applicants to approach the 
Courts including the High Court within 
whose jurisdiction the oﬀ ence is alleged 
to have been committed and the case is 
registered.
16.  Manda Suresh 
Parulekar 
vs. State of 
Goa, 2023 
SCC OnLine 
Bom 1568 
(Manda Suresh 
Parulekar)
Bombay High 
Court regarding 
oﬀ ence registered 
in the State of 
Goa.
The High Court granted transit anticipatory 
bail with respect to an FIR registered in 
Tardeo, Goa. Without adjudicating the 
merits of the case, upon considering the 
factual aspects of the case, protection 
was granted for a period of four weeks 
to enable the applicants to approach the 
concerned Court for appropriate reliefs.
18. The above table is a testament to the rich jurisprudential discussion 
that has arisen out of the limited legislative guidance regarding the 
expression ‘the High Court or the Court of Session.’ The analysis of the 
above case law is as under: 
a. 
The Patna High Court in Syed Zafrul Hassan stressed on the plain 
meaning of Section 438 of CrPC to hold that ‘the High Court’ or 
‘the Court of Session’ cannot mean “any” High Court or Court of 
Session. Therefore, it held that the application for direction under 
Section 438 of CrPC was not maintainable at Patna Bench of the 
Patna High Court because the FIR was registered at
the Jhinkpani 
police station which falls in the district of Singhbhum. The matter 
thus came squarely within the jurisdiction of the Bench of the 
Patna High Court at Ranchi. The High Court stressed on the 
principle that a criminal Court takes cognizance of the oﬀ ence and 
not of individual oﬀ enders, vide Raghubans Dubey. Therefore, 
the High Court emphasized upon the practical diﬃ  culties if the 
jurisdiction of criminal Court was determined by ‘the shady or 
evasive movements of the oﬀ ender’, there would be ‘judicial 
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 
ETC. [B. V. NAGARATHNA, J.]
568 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
chaos and an inherent conﬂ ict betwixt the comity of Courts.’ The 
High Court cautioned that if the application for anticipatory bail 
was maintainable outside the territorial jurisdiction of the High 
Court, ‘a fugitive oﬀ ender may well move from Court to Court 
ad inﬁ nitum and if he fails in one jurisdiction then on to another 
until he secures relief in the last.’
b. 
Calcutta High Court in Sadhan Chandra Kolay relied upon 
Article 214 of the Constitution which states that there shall be 
a High Court for each State and had categorically held that the 
Sessions Judge has got no authority to exercise the power or 
jurisdiction under Section 438 of CrPC beyond the local limits 
of the territorial jurisdiction of the Sessions-Division. 
c. 
The facts in Honey Preet Insan are peculiar to the extent that 
the relief of interim protection was denied because the applicant 
was at large and had categorically refused to join investigation. 
d. 
At this juncture it may be noted that the aforementioned approach 
was supported by the Justice V.S. Malimath Committee’s Report 
on Reforms in Criminal Justice System. In section 7.33, page 
121, the Committee had proposed that provision regarding 
anticipatory bail may be retained subject to two conditions: 
that the Court would hear the Public Prosecutor; and that the 
petition for anticipatory bail should be heard only by the Court 
of competent jurisdiction.
e. 
Another set of judgements,
such as of the Delhi High Court in 
Surya Pratap Singh, Allahabad High Court in Ajay Agarwal, 
Amita Garg, Bombay High Court in Teesta Atul Setalvad, 
Nikita Jacob and Manda Suresh Parulekar, highlight the 
transit anticipatory bail approach. In these cases, the High Court 
granted transit bail and ruled that the grant of protection from 
arrest beyond the local limits of their jurisdiction is limited to 
the extent of consideration of bail for the transitional period. 
In other words, the High Courts in their respective judgement 
has read the scheme of administration of criminal justice and 
the provision for anticipatory bail in a conjoint sense, thereby
569
limiting the relief of extra-territorial anticipatory bail to a 
deﬁ nite interim period. 
f. 
Another line of judgments namely, by the Delhi High Court in 
Pritam Singh; Kerala High Court in C.L. Mathew; Bombay High 
Court in N.K. Nayar; Calcutta High Court In Re:Benod Ranjan 
Sinha and Karnataka High Court in L.R. Naidu and Gameskraft 
Technologies have read the expression ‘the High Court or 
the Court of Session’ in Section 438 of CrPC as diﬀ erent and 
disjoint from the general scheme of criminal procedure, thereby 
deciding in favor of grant of protection from arrest to remove 
the apprehension of arrest at a particular place, irrespective of 
the territorial jurisdiction to take cognizance of the criminal 
oﬀ ence in question. The constitutional imperative of safeguarding 
personal liberty was emphasised and it was noted that a person 
may apprehend arrest at a place including at a place other than 
the one within the jurisdiction in which an alleged oﬀ ence has 
been committed. The High Courts in their respective judgments 
adverted to the lack of legislative qualiﬁ cation of the expression 
‘the High Court or the Court of Session’ to mean that it extends 
to any High Court or Court of Session in whose jurisdiction an 
arrest is apprehended by a person against whom an FIR has been 
ﬁ led. 
Position of law overseas:
19. Article 9 of the Universal Declaration of Human Rights, 
1948 establishes that “no one shall be subjected to arbitrary arrest, 
detention or
exile.” Article 10 of the International Covenant on Civil 
and Political Rights of the United Nations, 1966 establishes that “all 
persons deprived of their liberty shall be treated with humanity and with 
respect for the inherent dignity of the human person”. These provisions 
in the International Human Rights instruments are a necessary safeguard 
against the reality of arbitrary and inhumane deprivation of liberty and 
the inability of those thus deprived to beneﬁ t from legal resources and 
constitutional guarantees that they are entitled to for the conduct of their 
defence as required by law in any judicial system and by application of 
international human rights standards.
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 
ETC. [B. V. NAGARATHNA, J.]
570 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
20. Comparative legal study on law of criminal procedure presents 
India as an exemplar with respect to the provision for pre-arrest bail. It would 
be useful to consider how other jurisdictions have dealt with the issue of 
pre-arrest bail as under: 
(a) 
Possibly, the only known case of an application for a pre-arrest 
bail bond in the United States of America is In re: Sturman, 
1984.604 F. Supp. 278. (F. E. Devine (1990) Anticipatory 
Bail: An Indian Civil Liberties Innovation, International 
Journal of Comparative and Applied Criminal Justice, 14:1-2, 
107-114). The U.S. District Court for the Northern District of 
Ohio presumed that the applicant’s motion was made to spare 
himself of the embarrassment of arrest. In denying the motion as 
premature, the Chief District Judge commented that the “setting 
of a bail bond is to insure the accused’s presence at trial; it is not 
designed as a means to avoid arrest.”
(b) In the United Kingdom, the common law of arrest was codiﬁ ed 
in Section 2 of the Criminal Law Act, 1967. The salient facets of 
Section 2 are that for an arrest to be lawful, the oﬀ ence must be 
one carrying a penalty of ﬁ ve years imprisonment (an “arrestable 
oﬀ ence”); and there must, at the minimum, be suspicion on 
reasonable grounds that the person to be arrested either has 
committed, is committing or is about to commit the oﬀ ence. It 
may be wielded as a tool to prevent the destruction of evidence,
interference with witnesses or warning accomplices who have 
yet to be arrested. When there is reason to suspect an oﬀ ence 
may be repeated, especially though not exclusively in the case 
of violent oﬀ ences, it may be used to prevent such repetition.
(c) 
The United Kingdom’s Royal Commission Report on Criminal 
Procedure (Philips Commission)(1981) - cited aﬃ  rmatively by 
this Court in Joginder Kumar vs. State of U.P., (1994) 4 SCC 
260, para 17-19 - proposed to restrict the circumstances in 
which the police could exercise the power of arrest with warrant 
to deprive a person of his liberty to those in which it would 
genuinely be necessary to enable them to execute their duties of 
preventing the commission of oﬀ ences, investigating crime, and
571
bringing suspected oﬀ enders before the Courts; and to simplify, 
clarify and rationalise the existing statutory powers of arrest, 
conﬁ rming the present rationale for the use of those powers. It 
stated as follows:
“In attempting to limit the power of arrest, we have no 
intention of inhibiting the police from fulﬁ lling their functions 
of detecting and preventing crime. But we do seek to alter 
the practice whereby the inevitable sequence that would 
follow upon the arising of a reasonable suspicion is arrest, 
followed by being taken to the station, often to be searched, 
ﬁ ngerprinted and photographed. The evidence submitted to us 
supports the view of the Police Complaints Board, expressed 
in their triennial report, that police oﬃ  cers are so involved 
with the process of arrest and detention that they fail at times 
to understand the sense of alarm and dismay felt by some of 
those who suﬀ er such treatment. Arrest represents a major 
disruption to the suspect’s life…That disruption cannot, in our 
view, be justiﬁ ed if it is not necessary to take him to the station 
for one or more of the following reasons: to ﬁ nd out his name 
and address; to prevent the continuation or repetition of the 
oﬀ ence; to protect persons or property; to preserve evidence 
in connection with that oﬀ ence; to dispel reasonable suspicion 
or to turn it into a prima facie case.” (para 3.75)
The Royal Commission underlined the necessity principle to 
diminish the possibility of
arbitrary arrest, thereby requiring the 
police oﬃ  cer receiving the suspect in his custody to enquire as 
to whether it would be essential to keep the arrested person at 
the police station on the basis of the following criteria:
(i) 
the person’s unwillingness to identify himself so that a 
summons may be served upon him;
(ii) the need to prevent the continuation or repetition of that 
oﬀ ence;
(iii) the need to protect the arrested person himself, or other 
persons or property;
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 
ETC. [B. V. NAGARATHNA, J.]
572 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
(iv) the need to secure or preserve evidence of or relating to 
that oﬀ ence or to obtain such evidence from the suspect by 
questioning him; and
(v) the likelihood of the person failing to appear at Court to 
answer any charge made against him.
(d) The Queen’s Bench in Regina vs. Secretary of State for the 
Home Department, Ex Parte LeecH, (1994) Q.B. 198 held that 
it was a principle of fundamental importance that every citizen 
had a right of unimpeded access to a Court, and to a solicitor 
for the purpose of receiving advice and assistance in connection 
therewith.
(e) 
In Kenya, while there are no speciﬁ c provisions on anticipatory 
bail, these are instead enshrined in constitutional provisions under 
the Bill of Rights. The Constitution of Kenya, 2010 provides for:
(i) 
Bail of arrested person under Article 49(1)(h)
(ii) Appropriate relief under Article 23(3) for breach of the Bill 
of Rights.
Therefore, wherever the remedy has been considered, the 
Courts have applied the threshold applicable to an application 
ﬁ led seeking to prevent the violation or threatened violation of 
rights under Articles 23 and 165(3) of the Kenyan Constitution.
(f) 
The High Court of Kenya in Coroline Kuthie Karanja vs. 
Director Public Prosecutions, (2021) eKLR extensively 
referred to Section 438 of CrPC and stated that the constitutional 
Courts of India had widely construed the fundamental aspects 
of anticipatory bail to be of great
importance and anchored to 
the right to life and liberty of a person. The High Court also 
emphatically reiterated its constitutional duty to go to the 
length and breadth of the Constitution to protect the rights 
and fundamental freedoms of Kenyans where need be, but it 
emphasized the need to be alive to its obligation not to curtail the 
other organs of the State from carrying out their constitutional 
mandate. Accordingly, the High Court granted anticipatory bail
573
on the ground that the applicant therein had been arrested in the 
past and was out of custody on bond for a charge that was similar 
to the charge that she apprehended the arrest for.
Personal Liberty and Access to Justice:
While we have analysed key judgments of this Court as well as 
various High Courts across the country on the pertinent question/issue 
raised in this case, we must also look at the same from the angle of 
personal liberty and access to justice. Article 39 A of the Constitution of 
India deals with equal justice and free legal aid, which can be construed 
to be a specie of Article 21 of the Constitution of India, which deals with 
right to life and liberty. For sake of immediate reference, Article 39A is 
extracted as under: 
“39A. Equal justice and free legal aid.- The State shall secure that 
the operation of the legal system promotes justice, on a basis of equal 
opportunity, and shall, in particular, provide free legal aid, by suitable 
legislation or schemes or in any other way, to ensure that opportunities 
for securing justice are not denied to any citizen by reason of economic 
or other disabilities.”
21. A Constitution Bench of this Court in Anita Kushwaha vs. Pushap 
Sudan, (2016) 8 SCC 509 held access to justice to be encompassed within 
the right to life under Article 21 and observed as under:
“31. Given the fact that pronouncements mentioned above have 
interpreted and understood the word “life” appearing in Article 21 of 
the
Constitution on a broad spectrum of rights considered incidental 
and/or integral to the right to life, there is no real reason why access 
to justice should be considered to be falling outside the class and 
category of the said rights, which already stands recognised as being 
a part and parcel of Article 21 of the Constitution of India. If “life” 
implies not only life in the physical sense but a bundle of rights that 
makes life worth living, there is no juristic or other basis for holding 
that denial of “access to justice” will not aﬀ ect the quality of human 
life so as to take access to justice out of the purview of right to life 
guaranteed under Article 21. We have, therefore, no hesitation in 
holding that access to justice is indeed a facet of right to life guaranteed 
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 
ETC. [B. V. NAGARATHNA, J.]
574 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
under Article 21 of the Constitution. We need only add that access to 
justice may as well be the facet of the right guaranteed under Article 
14 of the Constitution, which guarantees equality before law and 
equal protection of laws to not only citizens but non-citizens also. 
We say so because equality before law and equal protection of laws 
is not limited in its application to the realm of executive action that 
enforces the law. It is as much available in relation to proceedings 
before Courts and tribunal and adjudicatory fora where law is applied 
and justice administered. The citizen’s inability to access Courts or 
any other adjudicatory mechanism provided for determination of rights 
and obligations is bound to result in denial of the guarantee contained 
in Article 14 both in relation to equality before law as well as equal 
protection of laws. Absence of any adjudicatory mechanism or the 
inadequacy of such mechanism, needless to say, is bound to prevent 
those looking for enforcement of their right to equality before laws and 
equal protection of the laws from seeking redress and thereby negate 
the guarantee of equality before laws or equal protection of laws and 
reduce it to a mere teasing illusion. Article 21 of the Constitution apart, 
access to justice can be said to be part of the guarantee contained in 
Article 14 as well.”
The Constitution Bench enumerated four facets of access to justice as:
“33. Four main
facets that, in our opinion, constitute the essence of 
access to justice are:
(i) 
the State must provide an eﬀ ective adjudicatory mechanism;
(ii) the mechanism so provided must be reasonably accessible in 
terms of distance;
(iii) the process of adjudication must be speedy; and
(iv)  the litigant’s access to the adjudicatory process must be 
aﬀ ordable.”
22. Therefore, this Court has elevated the provision of a just adjudicatory 
forum for a citizen to agitate his grievance and seek adjudication of what he 
may perceive as a breach of his right to the level of a fundamental right. Not 
only is the adjudicatory forum supposed to be eﬀ ective in its functioning
575
and just, fair and objective in its approach, but it also must be conveniently 
approachable and aﬀ ordable by observing as under:
“35. The forum/mechanism so provided must, having regard to the 
hierarchy of Courts/tribunals, be reasonably accessible in terms of 
distance for access to justice since so much depends upon the ability 
of the litigant to place his/her grievance eﬀ ectively before the Court/
tribunal/Court/competent authority to grant such a relief. (See D.K. 
Basu v. State of W.B. [D.K. Basu v. State of W.B., (2015) 8 SCC 744 
: (2015) 3 SCC (Cri) 824] )”
23. It was also emphasised that access to justice would, therefore, be 
a constitutional value of any signiﬁ cance and utility only if the delivery of 
justice to the citizen is speedy, for otherwise, the right to access justice is 
no more than a hollow slogan of no use or inspiration for the citizen. It was 
held as under: 
“38. Access to justice will again be no more than an illusion if the 
adjudicatory mechanism provided is so expensive as to deter a disputant 
from taking resort to the same. Article 39-A of the Constitution 
promotes a laudable objective of providing legal aid to needy litigants 
and obliges the State to make access to justice aﬀ ordable for the less 
fortunate sections of the society.”
Section 438 CrPC : Interpretation
24. The answer to the points for consideration raised herein would 
emerge from the construction that is aﬀ orded to the expression ‘the High 
Court or the Court of
Session’ in Section 438 of CrPC. It was submitted 
before us that the use of the deﬁ nite article ‘the’ before High Court and 
Court of Session must mean that High Court and that Court of Session 
which exercises territorial jurisdiction over the area where an oﬀ ence has 
been committed.
25. It indeed is a trite rule of statutory interpretation that penal statutes 
are to be construed strictly. When acts are to be made penal and are to be 
visited with loss or impairment of life, liberty, or property, it may well be 
argued that personal liberty requires clear and exact deﬁ nition of the oﬀ ence. 
Furthermore, appropriate care must be taken to adopt an interpretation which 
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 
ETC. [B. V. NAGARATHNA, J.]
576 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
makes the textual interpretation match the contextual. In this regard, the 
following contextual aspects may be noted:
a. 
The CrPC explicitly defines the ‘local limits’ and ‘local 
jurisdiction’ within which the Magistrate may exercise 
jurisdiction.
b. 
Even though the High Court is deﬁ ned in CrPC, no provision 
explicitly deﬁ nes its territorial jurisdiction which has to be 
discerned from the Constitution of India.
c. 
Section 438(1)(iv) of CrPC makes explicit the legislative intent 
to prevent humiliation of the persons who apprehend arrest, 
especially in politically motivated or malicious prosecutions or 
in false cases.
d. 
The mischief that Section 438 of CrPC seeks to remedy is 
apprehension of wrongful arrest. 
26. Therefore, we ought to provide sufficient amplitude to the 
expression ‘reason to believe that he may be arrested’, and look at the setting 
in which the words are used and the circumstances under which the law came 
to be passed to decide whether something implicit is behind the words used 
which controls the literal meaning of such words. An interpretation giving 
rise to an absolute bar on the jurisdiction of a Court of Session or a High 
Court to grant interim anticipatory bail for an oﬀ ence committed outside 
the territorial conﬁ nes of a High Court or Court of Session may lead to an 
anomalous and unjust consequence for bona ﬁ de applicants who may be 
victims of wrongful, mala ﬁ de or politically
motivated prosecution. 
27. Furthermore, the fundamental right to personal liberty and access 
to justice, which are constitutionally recognised and statutorily preserved 
through the presence of jurisdiction with superior Courts, would be 
undermined through such a restrictive interpretation. While construing a 
statute, constitutional Courts are obliged to render a contextually sensitive 
construction that preserves and furthers core constitutional values.
28. Reliance in this regard may be placed on the dicta of this Court 
in Central Inland Water Transport Corporation vs. Brojo Nath Ganguly, 
(1986) 3 SCC 156:
577
“It is thus clear that the principles governing public policy must be 
and are capable, on proper occasion, of expansion or modiﬁ cation. 
Practices which were considered perfectly normal at one time have 
today become obnoxious and oppressive to public conscience. If there 
is no head of public policy which covers a case, then the Court must 
in consonance with public conscience and in keeping with public 
good and public interest declare such practice to be opposed to public 
policy. Above all, in deciding any case which may not be covered 
by authority our Courts have before them the beacon light of the 
Preamble to the Constitution. Lacking precedent, the Court can 
always be guided by that light and the principles underlying the 
Fundamental Rights and the Directive Principles enshrined in 
our Constitution.”
(emphasis by us)
29. We are mindful that this Court’s jurisprudence on Section 438 
of CrPC, particularly in Gurbaksh Singh Sibbia and Sushila Aggarwal, 
has towed the line of wise exercise of judicial discretion while interpreting 
the silence of the Parliament to imply an intention to facilitate the grant of 
essential procedural relief to secure the right to life and personal liberty under 
Article 21. Whilst the Constitution Bench in Gurbaksh Singh Sibbia ruled 
against the procedural and substantive restrictions on the grant of relief of 
anticipatory bail, the Constitution Bench in Sushila Aggarwal held that the 
period of anticipatory bail cannot be
limited, and may extend till the end of 
trial. The judgement of the Constitution Bench in Gurbaksh Singh Sibbia, 
in para 13, emphasises that, ‘the High Court and the Court of Session to 
whom the application for anticipatory bail is made ought to be left free in 
the exercise of their judicial discretion to grant bail if they consider it ﬁ t 
so to do on the particular facts and circumstances of the case and on such 
conditions as the case may warrant.’
30. Maxwell in his treatise on Interpretation of Statutes (10 edn.), 
page 284 states that “the tendency of modern decisions on the whole is to 
narrow materially the diﬀ erence between strict and beneﬁ cial construction”. 
It follows that criminal statutes such as the CrPC are interpreted with 
rational regard to the aim and intention of the legislature. What has to be 
borne in the judicial mind is that the interpretation of all statutes should be 
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 
ETC. [B. V. NAGARATHNA, J.]
578 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
favorable to personal liberty subject to fair and eﬀ ective administration of 
criminal justice.
31. A remedy such as anticipatory bail secures citizens aﬄ  icted in 
diﬃ  cult life circumstances – and such diﬃ  culties would keep evolving as 
our collective lives and legal systems become more complex. We deem it ﬁ t 
to distinguish between exercise of jurisdiction arising out of apprehension 
of arrest and jurisdiction conferred consequent to the “commission and 
cognizance of an oﬀ ence”. If the Parliament intended that the expression 
‘the High Court or the Court of Session’, to mean only the Court that 
takes cognizance of an oﬀ ence, then the Parliament would have made this 
abundantly clear. The omission of any qualiﬁ cation of the expression ‘the 
High Court or the Court of Session,’ ought to be constructed in a fashion 
that furthers the constitutional ideal of safeguarding personal liberty. It 
would be in furtherance of fostering personal liberty enshrined in Article 
21 of the Constitution of India in entrusting a wider jurisdiction to the 
Court of Session and the High Court in the grant of anticipatory bail, than 
in foreclosing the same by restructuring the exercise of jurisdiction in the 
matter of grant of anticipatory bail.
32. In the context of the contentions advanced by Dr. Manish Singhvi 
that the unbridled power to grant extra-territorial anticipatory bail would 
cause inconsistencies because of the varying
State amendments to Section 
438 of CrPC, we note that the application of the provision for anticipatory 
bail in the State of Uttar Pradesh had been omitted vide the enactment of the 
Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1976. The 
Uttar Pradesh State Legislature applied Section 438 of CrPC vide enactment 
of Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 2018, 
pursuant to ‘continuous demand for its revival’, writ petitions before the High 
courts, and recommendations of the Uttar Pradesh State Law Commission 
in its third report in 2009. We also note that the Code of Criminal Procedure 
(Uttar Pradesh Amendment) Act, 2022 makes the provision of anticipatory 
bail inapplicable (a) in case of oﬀ ences arising out of,— (i) The Unlawful 
Activities (Prevention) Act, 1967; (ii) The Narcotic Drugs and Psychotropic 
Substances Act, 1985; (iii) The Oﬃ  cial Secrets Act, 1923; (iv) The Uttar 
Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986; (v)
579
The Protection of Children from Sexual Oﬀ ences Act, 2012; (b) to those 
oﬀ ences in which the death sentence may be awarded; (c) to the oﬀ ences 
of rape and illegal sexual intercourse enumerated in sections 376, 376-A, 
376-AB, 376-B, 376-C, 376-D, 376-DA, 376-DB, 376-E of the Indian 
Penal Code, 1860.
33. Considering that the nature of criminal law regime in India, 
entwined with State amendments, the exercise of the jurisdiction for grant 
of extra-territorial anticipatory bail must be cognizant of the possibility of 
forum shopping. We also deem it necessary to take note of the evolution 
of the law on inter-state arrests, as this lies at the heart of ‘apprehension 
of arrest,’ for which the extraordinary jurisdiction of the High Court and 
Court of Session are attracted in case the accused resides in or is located in 
a territorial jurisdiction diﬀ erent from the jurisdiction in which cognizance 
of crime is taken by the Court of competent jurisdiction.
34. Section 48 of CrPC permits the police to pursue an accused in other 
jurisdictions. A police oﬃ  cer, for the purpose of arresting without a warrant, 
one whom he is allowed to arrest, may pursue an individual anywhere in 
India. Prior to eﬀ ecting the arrest outside a particular jurisdiction, the police 
is obligated to secure the transit remand i.e. the remand of the accused, 
for taking him from one place to another in their own custody, usually for 
the purpose of producing him before the concerned
magistrate who has 
jurisdiction to try/commit the case. The primary purpose of such a remand 
is to enable the police to shift the person in custody from the place of arrest 
to the place where the matter can be investigated and tried. However in 
various cases, the police and investigating agencies have failed to exercise 
necessary restraint while functioning within their legal remit. It is for the 
aforesaid reason that an accused apprehending arrest seeks pre-arrest bail. 
The Courts in India have to be vigilant about such applications being ﬁ led 
particularly when a person alleged to have committed an oﬀ ence can be 
proceeded with by setting the criminal law in motion in a place other than 
the place where the oﬀ ence has actually occurred. In such circumstances 
the Courts must balance the interest of the accused in the context of the 
salutary principle of access to justice which is a facet of Article 21 of the 
Constitution as well as a Directive Principle of State Policy, especially 
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 
ETC. [B. V. NAGARATHNA, J.]
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[2023] 15 S.C.R.
Article 39(A). More importantly, it is a facet of Article 14 of the Constitution 
which guarantees to every person in the country, equality before the law 
and equal protection of the law. 
35. In this case, we are concerned with what is loosely termed as ‘transit 
anticipatory bail’. As we have seen, the expression ‘anticipatory bail’ is not 
deﬁ ned in the CrPC though it is traceable to Section 438 of CrPC This Court 
in Balchand Jain had deﬁ ned anticipatory bail to mean bail in anticipation 
of arrest. The Constitution Bench in Gurbaksh Singh Sibbia has held that 
ﬁ ling of FIR is not a condition precedent for exercising power under Section 
438 of CrPC What is required for invocation of power under Section 438 
is that the person seeking anticipatory bail should show reasonable belief 
of imminent arrest. If the expression ‘anticipatory bail’ is not a deﬁ ned 
expression, then it is quite but natural that the larger expression ‘transit 
anticipatory bail’ would not ﬁ nd any exposition in the CrPC. Perhaps the 
need and necessity for transit anticipatory bail has occasioned because the 
police has been conferred power under the CrPC to pursue an accused in 
other jurisdictions. Immediately upon aﬀ ecting the arrest of a person outside 
the jurisdiction where the oﬀ ence is registered, the police is obligated to 
secure a transit remand. The arrested person has to be produced before the 
nearest magistrate. If such a magistrate
ﬁ nds that he has no jurisdiction to try 
the case in which the accused has been arrested, he may order the accused 
to be forwarded to a magistrate having the jurisdiction to try the case or to 
commit it for trial. Thus, the police is obligated to secure a transit remand 
of the accused for taking him from the place where he is arrested to the 
place where the crime is registered, for production before the competent 
magistrate in terms of the requirement of Article 22. As we have already 
noted, the primary purpose of such a transit remand is to enable the police 
to shift the person in custody from the place of arrest to the place where the 
matter can be investigated. It appears that from the aforesaid requirement 
of transit remand, has arisen the necessity of ‘transit anticipatory bail’ for, 
an aﬀ ected person cannot be without a remedy.
35.1. The word ‘transit’ is derived from the Latin word transitus 
which means passage from one place to another. Since the word ‘transit’ is 
an undeﬁ ned expression in CrPC, we may take recourse to the dictionary 
meaning of the word ‘transit’. The Concise Oxford English Dictionary,
581
10th Edition, Revised, deﬁ nes the word ‘transit’ to mean carrying of people 
or things from one place to another; the conveyance of passengers on 
public transport; an act of passing through or across a place. ‘Transited’ 
or ‘transiting’ would mean pass across or through. Similarly, the word 
‘transition’ means the process of changing from one state or condition to 
another. Likewise, the adjective ‘transitory’ means not permanent; short-
lived. An useful example of the above expression is transit visa which means 
a visa allowing its holder to pass through a country only, not to stay there. 
The word ‘transit’ has also been deﬁ ned in the Black’s Law Dictionary, 
11th Edition, to mean the transportation of goods or person from one place 
to another; passage; the act of passing.
35.2. In Dr. Brojen Gogol, this Court did not decide whether the 
Bombay High Court had the jurisdiction to entertain the anticipatory 
bail applications of the respondents since the crimes were registered 
within the State of Assam. On the short point that the State of Assam or 
the Assam police were not heard before granting anticipatory bail to the 
respondents, this Court set aside the order of the Bombay High Court but 
granted protection from arrest to the respondents for a limited duration to 
enable them to approach the Gauhati High Court. While passing such an 
order, this Court however made a general observation that the question 
of granting anticipatory bail to any person who is
allegedly connected 
with the oﬀ ence in question, must for all practical purposes be considered 
by the High Court of Gauhati within whose territorial jurisdiction such 
activities could have been perpetrated. As we have noted above, this was 
a general observation made by this Court and not a declaration of law 
after due adjudication.
35.3. The Allahabad High Court in Anita Garg also noted that 
there is no legislation or law which deﬁ nes transit or anticipatory bail 
in deﬁ nitive or speciﬁ c terms. Thereafter, the High Court proceeded to 
explain the term ‘transit’ to mean the act of being moved from one place 
to another. Since the expression ‘anticipatory bail’ means granting bail 
to an accused person who is anticipating arrest, ‘transit anticipatory bail’ 
would refer to bail granted to any person who is apprehending arrest by 
police of a state other than the state he is presently located in. On that 
basis, Allahabad High Court explained ‘transit anticipatory bail’ to mean 
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 
ETC. [B. V. NAGARATHNA, J.]
582 
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[2023] 15 S.C.R.
protection from arrest for a certain deﬁ nite period. The mere fact that an 
accused has been granted transit anticipatory bail does not mean that the 
regular court under whose jurisdiction the case would fall, shall extend 
such transit bail and convert the same into anticipatory bail. Therefore, the 
Allahabad High Court held that upon the grant of transit anticipatory bail, 
the accused person who has been granted such bail has to apply for regular 
anticipatory bail before the competent court which would then consider 
such a prayer on its own merits. Allahabad High Court has also held that 
transit anticipatory bail is a temporary relief which an accused gets for 
a certain period of time so that he can apply for anticipatory bail before 
the regular court. In this connection, Allahabad High Court heavily relied 
upon the decision of the Bombay High Court in Teesta Atul Setalvad. 
In that case, Bombay High Court held that High Court of one State can 
grant transit bail in respect of a case registered within the jurisdiction of 
another High Court in exercise of the power under Section 438 of CrPC. 
Bombay High Court was of the view that generally the power of a High 
Court to grant anticipatory bail is limited to its territorial jurisdiction 
and that the power cannot be usurped by disregarding the principle of 
territorial jurisdiction. Having said that, the High Court emphasized that 
temporary relief to protect liberty
and to avoid immediate arrest can be 
given by the Bombay High Court.
36. In view of what we have discussed above, we are of the view that 
considering the constitutional imperative of protecting a citizen’s right to 
life, personal liberty and dignity, the High Court or the Court of Session 
could grant limited anticipatory bail in the form of an interim protection 
under Section 438 of CrPC in the interest of justice with respect to an FIR 
registered outside the territorial jurisdiction of the said Court, and subject 
to the following conditions:
(i) 
Prior to passing an order of limited anticipatory bail, the 
investigating oﬃ  cer and public prosecutor who are seized of the 
FIR shall be issued notice on the ﬁ rst date of the hearing, though 
the Court in an appropriate case would have the discretion to 
grant interim anticipatory bail. 
(ii) The order of grant of limited anticipatory bail must record 
reasons as to why the applicant apprehends an inter-state
583
arrest and the impact of such grant of limited anticipatory bail 
or interim protection, as the case may be, on the status of the 
investigation.
(iii) The jurisdiction in which the cognizance of the oﬀ ence has 
been taken does not exclude the said oﬀ ence from the scope of 
anticipatory bail by way of a State Amendment to Section 438 
of CrPC.
(iv) The applicant for anticipatory bail must satisfy the Court 
regarding his inability to seek anticipatory bail from the Court 
which has the territorial jurisdiction to take cognizance of the 
oﬀ ence. The grounds raised by the applicant may be -
a.  
a reasonable and immediate threat to life, personal liberty 
and bodily harm in the jurisdiction where the FIR is 
registered;
b. 
the apprehension of violation of right to liberty or 
impediments owing to arbitrariness;
c. 
the medical status/ disability of the person seeking extra-
territorial limited anticipatory bail.
37. It would be impossible to fully account for all exigent circumstances 
in which an order of extra territorial anticipatory bail may be imminently 
essential to safeguard the fundamental rights of the applicant. We reiterate 
that such power to grant extra-territorial anticipatory bail should be 
exercised in exceptional and compelling circumstances only which means 
where, denying transit anticipatory bail or interim protection to enable 
the applicant to make an application under Section 438 of CrPC before a 
Court of competent jurisdiction would cause
irremediable and irreversible 
prejudice to the applicant. The Court, while considering such an application 
for extra-territorial anticipatory bail, in case it deems ﬁ t may grant interim 
protection instead for a ﬁ xed period and direct the applicant to make an 
application before a Court of competent jurisdiction.
38. We therefore set aside the judgement of Patna High Court in Syed 
Zafrul Hassan and judgment of Calcutta High Court in Sadhan Chandra 
Kolay to the extent that they hold that the High Court does not possess 
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 
ETC. [B. V. NAGARATHNA, J.]
584 
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[2023] 15 S.C.R.
jurisdiction to grant extra-territorial anticipatory bail i.e., even a limited or 
transit anticipatory bail. 
39. We shall now revert to our illustration given at the beginning of 
this judgment. In the illustration, we have stated that if a person commits 
an oﬀ ence in one State and the FIR is lodged within the jurisdiction where 
the oﬀ ence was committed but the accused resides in another State he 
can approach the Court in the other State and seek transit anticipatory 
bail of limited duration. We have held that the accused could approach 
the competent Court in the State where he is residing or is visiting for a 
legitimate purpose and seek the relief of limited transit anticipatory bail 
although the FIR is not ﬁ led in the territorial jurisdiction of the District or 
State in which the accused resides, or is present depending upon the facts 
and circumstances of each case. Conversely, the oﬀ ence may be committed 
in one State, the FIR may be lodged in another State and the accused may 
reside in a third State. In which of the Courts of the three States would the 
accused approach for grant of anticipatory bail? We feel that having regard 
to the salutary concept of access to justice, the accused can seek limited 
transit anticipatory bail or limited interim protection from the Court in the 
State in which he resides but in such an event, a ‘regular’ or full-ﬂ edged 
anticipatory bail could be sought from the competent
Court in the State in 
which the FIR is ﬁ led.
40. We are conscious that this may also lead the accused to choose 
the Court of his choice for seeking anticipatory bail. Forum shopping 
may become the order of the day as the accused would choose the most 
convenient Court for seeking anticipatory bail. This would also make the 
concept of territorial jurisdiction which is of importance under the CrPC 
pale into insigniﬁ cance. Therefore, in order to avoid the abuse of the 
process of the Court as well as the law by the accused, it is necessary for the 
Court before which the plea for anticipatory bail is made, to ascertain the 
territorial connection or proximity between the accused and the territorial 
jurisdiction of the Court which is approached for seeking such a relief. 
Such a link with the territorial jurisdiction of the Court could be by way of 
place of residence or occupation/work/profession. By this, we imply that 
the accused cannot travel to any other State only for the purpose of seeking 
anticipatory bail. The reason as to why he is seeking such bail from a Court
585
within whose territorial jurisdiction the FIR has not been ﬁ led must be made 
clear and explicit to such a Court. Also there must be a reason to believe or 
an imminent apprehension of arrest for a non-bailable oﬀ ence made out by 
the accused for approaching the Court within whose territorial jurisdiction 
the FIR is not lodged or the inability to approach the Court where the FIR 
is lodged immediately. 
41. Having regard to the vastness of our country and the length and 
breadth of it and bearing in mind the complex nature of life of the citizens, 
if an oﬀ ence has been committed by a person in a particular State and if the 
FIR is ﬁ led in another State and the accused is a resident in a third State, 
bearing in mind access to justice, the accused who is residing in the third 
State or who is present there for a legitimate purpose should be enabled to 
seek the relief of limited anticipatory bail of transitory nature in the third 
State. 
42. While we so hold, we are conscious of the fact that the expression 
High Court in Section 2(e) of the CrPC reads as follows: (i) in relation to 
any State, the High Court for that State; (ii) in relation to a Union Territory 
to which the jurisdiction of the High Court for a State has been extended 
by law, that High Court; (iii) in relation to any other Union Territory, the 
highest Court of criminal appeal for that territory other than the Supreme 
Court of India. Section 6 of the CrPC states that besides the High Courts 
and
the Courts constituted under any law, other than the CrPC, there shall 
be, in every State, inter alia, Courts of Session. Section 7 speaks about 
territorial divisions. Sub-section (1) of Section 7 states that every State 
shall be a sessions division or shall consist of sessions divisions; and every 
sessions division shall, for the purposes of CrPC, be a district or consist of 
districts. The proviso states that every metropolitan area shall be a separate 
session division and district. Sub-section (1) of Section 9 states that the State 
Government shall establish a Court of Session for every session division; 
every Court of Session shall be presided over by a Judge, to be appointed 
by the High Court; the High Court may also appoint Additional Sessions 
Judges to exercise jurisdiction in a Court of Session and such Judges may 
also sit in another division as may be directed by the High Court.
43. Section 26 of the CrPC deals with the Courts by which oﬀ ences 
are triable which states that subject to the other provisions of the CrPC, any 
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 
ETC. [B. V. NAGARATHNA, J.]
586 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
oﬀ ence under the IPC may be tried by (i) the High Court; (ii) the Court of 
Session; or (iii) any other Court by which such oﬀ ence is shown in the First 
Schedule to be triable. In case of oﬀ ences under any other law when any 
Court is mentioned in this behalf in such law, being tried by such Court and 
when no Court is mentioned may be tried by (i) the High Court; or (ii) any 
other Court by which such oﬀ ence is shown in the First Schedule to be triable.
44. Further, on a reading of Section 438 of CrPC, we do not ﬁ nd that 
the expression “the High Court” or “the Court of Session” is restricted 
vis-à-vis the local limits or any particular territorial jurisdiction. However, 
this does not mean that if an FIR is lodged in one State then the accused 
can approach the Court in another State for seeking anticipatory bail. He 
can do so, if at the time of lodging of the FIR in any State, he is residing 
or is present there for a legitimate purpose in any other State. In fact, on 
a reading of Section 438 of CrPC, it does not emerge that the expression 
“the High Court” or “the Court of Session” must have reference only to the 
place or territorial jurisdiction within which the FIR is lodged. If that was 
the implication, the same would have been expressly evident in the Section 
itself or by a necessary implication. Further use of the word “the” before the 
words “High Court” and “Court of Session” also does not mean that only
the High Court or the Court of Session, as the case may be, within whose 
jurisdiction the FIR is ﬁ led, is competent to exercise jurisdiction for the 
grant of transit anticipatory bail.
45. At the same time, we are also mindful of the fact that the accused 
cannot seek full-ﬂ edged anticipatory bail in a State where he is a resident 
when the FIR has been registered in a diﬀ erent State. However, in view 
of what we have discussed above, he would be entitled to seek a transit 
anticipatory bail from the Court of Session or High Court in the State where 
he is a resident which necessarily has to be of a limited duration so as to 
seek regular anticipatory bail from the Court of competent jurisdiction. 
The need for such a provision is to secure the liberty of the individual 
concerned. Since anticipatory bail as well as transit anticipatory bail are 
intrinsically linked to personal liberty under Article 21 of the Constitution 
of India and since we have extended the concept of access to justice to such 
a situation and bearing in mind Article 14 thereof it would be necessary 
to give a constitutional imprimatur to the evolving provision of transit
587
anticipatory bail. Otherwise, in a deserving case, there is likelihood of 
denial of personal liberty as well as access to justice for, by the time the 
person concerned approaches the Court of competent jurisdiction to seek 
anticipatory bail, it may well be too late as he may be arrested. Needless to 
say, the Court granting transit anticipatory bail would obviously examine 
the degree and seriousness of the apprehension expressed by the person 
who seeks transit anticipatory bail; while the object underlying exercise 
of such jurisdiction is to thwart arbitrary police action and to protect 
personal liberty besides providing immediate access to justice though 
within a limited conspectus. 
46. If a rejection of the plea for limited/transitory anticipatory bail is 
made solely with reference to the concept of territorial jurisdiction it would 
be adding a restriction to the exercise of powers under Section 438. This, in 
our view, would result in miscarriage and travesty of justice, aggravating 
the adversity of the accused who is apprehending arrest. It would also be 
against the principles of access to justice. We say so for the reason that an 
accused is presumed to be innocent until proven guilty beyond reasonable 
doubt and in accordance with law. In the circumstances, we hold that 
the Court of Session or the High Court, as the case may be, can exercise 
jurisdiction and entertain a plea for limited anticipatory bail even if the 
FIR has not been ﬁ led within its
territorial jurisdiction and depending upon 
the facts and circumstances of the case, if the accused apprehending arrest 
makes out a case for grant of anticipatory bail but having regard to the fact 
that the FIR has not been registered within the territorial jurisdiction of the 
High Court or Court of Session, as the case may, at the least consider the 
case of the accused for grant of transit anticipatory bail which is an interim 
protection of limited duration till such accused approaches the competent 
Sessions Court or the High Court, as the case may be, for seeking full-
ﬂ edged anticipatory bail. 
47. There can also be a case where the accused is facing multiple FIRs 
for the same oﬀ ence in several States. He may seek an interim protection 
from a particular Sessions Court or the High Court in a State. Does he have 
to move from State to State for the purpose of seeking anticipatory bail or 
seek multiple pre-arrest bails? We would not attempt to give an answer to 
such a situation as the facts of the present case do not involve such a situation.
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 
ETC. [B. V. NAGARATHNA, J.]
588 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
48. Another issue that calls for reiteration is, whether, the ordinary 
place of inquiry and trial would include the place where the complainant-
wife resides after being separated from her husband. The position of law 
regarding the ordinary place of investigation and trial as per Section 177 
of the CrPC, especially in matrimonial cases alleging cruelty and domestic 
violence, alleged by the wife, has advanced from the view held in the 
case of State of Bihar vs. Deokaran Nenshi, (1972) 2 SCC 890; Sujata 
Mukherjee (Smt.) vs. Prashant Kumar Mukherjee, (1997) 5 SCC 30; 
Y. Abraham Ajith vs. Inspector of Police, Chennai, (2004) 8 SCC 100, 
Ramesh vs. State of T.N. (2005) 3 SCC 507; Manish Ratan vs. State of 
M.P., (2007) 1 SCC 262 that if none of the ingredients constituting the 
oﬀ ence can be said to have occurred within the local jurisdiction, that 
jurisdiction cannot be the ordinary place of investigation and trial of 
a matrimonial oﬀ ence. A three judge Bench of this Court has however 
clariﬁ ed in Rupali Devi vs. State of U.P., (2019) 5 SCC 384 (Rupali Devi) 
that adverse eﬀ ects on mental health of the wife even while residing in 
her parental home on account of the acts committed in the matrimonial 
home would amount to commission of cruelty within the meaning of 
Section 498A at the parental home. It was held that the Courts at the 
place where the wife takes shelter after leaving or being driven away 
from the
matrimonial home on account of acts of cruelty committed by 
the husband or his relatives, would, depending on the factual situation, 
also have jurisdiction to entertain a complaint alleging commission of 
oﬀ ences under Section 498-A of the IPC.
49. Applying Rupali Devi, in view of the fact that the complainant-
wife herein claims to have received death threats and harassment over the 
phone even after her return to her parental home in Chirawa, Rajasthan 
the ordinary place of trial may be Chirawa. But in the present case by 
the impugned orders, the accused-husband and his family members were 
granted extra-territorial anticipatory bail without issuing notice to the 
investigating oﬃ  cer and public prosecutor in Chirawa Police Station, 
Rajasthan wherein the appellant had lodged the FIR. In view of the facts 
and circumstances of the present case and the conclusion to the points 
considered hereinabove, we allow and dispose of these appeals in the 
following terms:
589
a. 
The impugned orders of the learned Additional City Civil and 
Sessions Judge Bengaluru City do not take note of respondent 
No.2 at all for allowing Criminal Misc. Nos. 3941/2022, 
3943/2022, 3944/2022 and 3945/2022.
b. 
The impugned orders are hence set aside.
c. 
However, in the interest of justice, it is directed that no coercive 
steps may be taken against the accused for the next four weeks, 
to enable them to approach the jurisdictional Court in Chirawa, 
Rajasthan for anticipatory bail. 
d. 
It is also directed that in case applications under Section 438 of 
CrPC are made before the Court of Session in Chirawa or the 
High Court of Rajasthan, the same shall be decided expeditiously 
and on their own merits.
We place on record our appreciation for the valuable assistance 
rendered by learned senior counsel and learned ASG, Sri Vikramjeet 
Banerjee who has advanced submissions as an amicus curiae in this case 
as also of other senior counsel and counsel who have appeared in this case. 
Headnotes prepared by: 
Appeals disposed of.
Nidhi Jain
PRIYA INDORIA v. STATE OF KARNATAKA AND ORS. 
ETC. [B. V. NAGARATHNA, J.]