The High Court's jurisdiction under Section 438, CrPC, to grant anticipatory bail is limited to the extent of consideration of bail for the transitional period in respect of an offence committed outside its jurisdiction.

( 1 ) THE reference to this Bench has been made by a Division Bench of this Court consisting of G. R. Bhattacharjee and Malay Kumar Basu, JJ. , questioning the correctness of a judgment of another Division Bench in Sadhan Chandra Kolay v. State consisting of S. K. Tiwari and D. P. Sarkar (II), JJ. , reported in 1999 (1) CLJ 20 on the following two questions :-1. Whether the decision of the Division Bench in Sadhan Chandra Kolay v. State, 1999 (1) CLJ 20, insofar as the same holds that petition for anticipatory bail under Section 438, Cr. P. C. in connection with any offence of an outstation cannot be entertained by this Court, and as such, such a petition is not maintainable, is correct view of the Full Bench decision of this Court in Sailesh Jaiswal v. State of West Bengal, 1998 C Cr LR (Cal) 342.

( 2 ) WHETHER in view of the majority decision of the Full Bench in Sailesh Jaiswal v. State of W. B. , 1998 C Cr LR (Cal) 342, this Court has jurisdiction to grant anticipatory bail in a fit case to a limited extent as mentioned therein, even in an outstation case. 2. The questions raised before us are limited, inasmuch as evidently, the question as to whether this Court in exercise of its jurisdiction under Section 438 of the Code of Criminal Procedure can entertain an application for grant of anticipatory bail in respect of an offence committed outside its jurisdiction, has been considered by a Five Judges' Special Bench in Sailesh Jaiswal v. State of West Bengal. The main judgment in Sailesh Jaiswal's case has been delivered by Panigrahi, J. wherewith V. K. Gupta, J. and N. A. Chowdhury, J. concurred. Mishra, C. J. however, while recording His Lordship's agreement with the view that the exercise of jurisdiction of anticipatory bail by High Court or the Court of Sessions beyond the local limits of the jurisdiction is limited to the extent of a bail for the transitional period, proceeded to assign additional reasons therefor. Bhattacharjee, J. however, disagreed with the majority view.

( 3 ) IN Sadhan Chandra Kolay (supra) the Division Bench, interpreting the decision of Special Bench however, held :-"on the other hand in the self-same judgment the then Chief Justice of this Court, namely, Mr. Justice Probha Shankar Mishra, in his deliberation has made it clear that the jurisdiction under Section 438, Cr. P. C. shall be exercised by the Sessions Judge or the High Court within the territorial jurisdiction of which the offence was committed. It has been made clear that passing any direction to any Court outside the State, where the territorial jurisdiction does not extend, would be an exercise in excess of the power conferred by the statute. But at the same time in paragraph 37 of the self-same judgment, the Hon'ble Ex-Chief Justice clearly expressed that he concurred with the view expressed by the Hon'ble Mr. Justice Basudeva Panigrahi. "

( 4 ) IN Sadhan Chandra Kolay, (supra), the Court upon considering the meaning of 'high Court' as contained in Section 2 (e) of the Criminal Procedure Code as also Article 214 of the Constitution of India vis-a-vis provision of Section 81 of the Code observed :-"this particular power under Section 81 of the Cr. P. C. can be exercised by the Magistrate only when a person is arrested in connection with an offence committed outside the territorial jurisdiction of that Magistrate and where for the arrest of such person, a warrant has been issued by the Magistrate within whose territorial jurisdiction the offence was committed. This power of granting bail as contemplated by Section 81, Cr. P. C. is a provision for granting bail during transitional period and this power can be exercised only by the Magistrate or Sessions Judge as mentioned in the statute itself. But Section 81, Cr. P. C. does not confer any such power on the High Court of the State; because, the High Court is a Court of record and as such the accused after arrest cannot be produced before the High Court as required by