Full Bench of Bombay High Court to decide whether transit bail can be granted by courts for cases outside its jurisdiction

A Division Bench of the Bombay High Court earlier this month referred to a larger bench the issue of whether transit anticipatory bail for a short duration is maintainable to enable the accused to approach the court of appropriate jurisdiction for regular anticipatory bail [Prajith Thayyil Kallil v. State of Maharashtra & connected pleas]. .The bench of Justices SS Shinde and SV Kotwal said that whether transit bail can be granted by a court to accused in cases registered outside its jurisdiction needs to be decided by a larger bench. "There is a vertical rift in the views expressed by different High Courts. The importance of this question cannot be overstated. It involves liberty of citizens. …the matter involves larger interest of the citizens and, therefore, it can be more advantageously heard by a Larger Bench,” the bench observed in the order which was uploaded on the High Court website on Thursday.It, therefore, directed that the matter be placed before Chief Justice to o decide whether these matters should be placed before a larger bench consisting of three or more judges.The matter in fact came before the division bench after reference by single-judge Justice Revati Mohite Dere. The single-judge had framed the following questions to be considered by division bench:- Whether an application for transit anticipatory bail for a short duration, is maintainable in order to enable the accused to approach the Court of appropriate jurisdiction for seeking regular anticipatory bail for a short duration ?- Whether the judgment of the Division Bench of this Court in the case of NK Nayar, Director, Hastinapur Metals Ltd. Bombay and others Vs. State of Maharashtra and others is a binding precedent ?In addition to the above, the division bench also framed the following questions for consideration by a larger bench:- Whether the Maharashtra Amendment of 1993 to Section 438 of CrPC affects the ratio of NK Nayar’s case.- Whether the final relief under Section 438 of CrPC can be granted for the offences registered or likely to be registered, outside the territorial jurisdiction of the Sessions Court or the High Court, as the case may be. - Whether a Sessions Court can grant any relief under Section 438 of CrPC in respect of the offences registered outside its jurisdiction. - If it is held that the powers of the High Courts under Section 438 of CrPC are restricted to passing of these orders only for the offences registered or likely to be registered within the territorial jurisdiction, whether the High Courts in exercise of their powers under Article 226 of the Constitution of India, can pass protective orders in the nature of relief under Section 438 of CrPC in respect of those offences..The Bench also noted that the reference Bench will have to balance the difficulties of the investigating agency.“The provision can be misused either by the accused or even by the complainant. In a given case, only with a view to harass somebody, the informant may choose to file his FIR at a far away place in India, by showing some part of cause of action there. …the accused may take wrong advantage of this provision by obtaining this type of order to buy time, which could be used to destroy the evidence. Both these mischiefs must be checked while considering this issue,” the Bench recorded in the order..Additional Solicitor General Anil Singh and Advocate General Ashutosh Kumbhakoni argued that such type of orders could not be passed since they are not legally sustainable.They argued that neither the Sessions Court nor the High Court in one State can give protection under Section 438 (anticipatory bail) of the Code of Criminal Procedure in relation to an offence registered in a some other State..On the other hand, Senior Advocates Amit Desai and Mihir Desai appearing for the petitioners invoked Section 438 to argue that such orders can be passed in the interest of justice.They submitted that the power under Section 438 comes from Article 21 and hence it could be elevated to the pedestal of Article 21 because liberty of a person is paramount. Therefore, Section 438 should be given its effect without any limitations..[Read Order]