Narendra Kumar vs State of Rajasthan - 2009 Supreme(Raj) 2268

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2009 Supreme(Raj) 2268

RAJASTHAN HIGH COURT AT JAIPUR BENCH
Mahesh Bhagwati, J.
Narendra Kumar & Ors. - Appellant
Versus
State of Rajasthan - Respondent
S.B. Criminal Misc. Bail Application No. 6850 of 2009.
Decided On : 9-09-2009

Important Points

The court having jurisdiction over the locale of the commission of the offence is the appropriate court to grant anticipatory bail under Section 438 of the Cr.P.C., and the residence of the accused is irrelevant in determining jurisdiction.

Subject

Criminal Law - ANTICIPATORY BAIL

Act Referred

CRIMINAL PROCEDURE CODE : S.438
INDIAN PENAL CODE : S.498(a), S.323, S.452

Headnote

CRIMINAL PROCEDURE CODE, 1973 - SECTION 438 - ANTICIPATORY BAIL - JURISDICTION - COURT HAVING JURISDICTION OVER THE LOCALE OF THE COMMISSION OF THE OFFENCE - RESIDENCE OF ACCUSED IS IRRELEVANT - PETITION NOT MAINTAINABLE.

Fact of the Case:

The petitioners, residents of Bharatpur, were accused of offences under Sections 498A, 323, and 452 of the IPC in an FIR lodged at Salumbar, Udaipur. They filed an anticipatory bail petition in the Jaipur Bench of the Rajasthan High Court, arguing that the FIR was lodged with a false intention to drag them to Udaipur and that they faced jurisdiction issues due to ongoing strikes in Udaipur and Jodhpur.

Finding of the Court:

The court held that the Jaipur Bench of the Rajasthan High Court did not have territorial jurisdiction to entertain the bail petition since the cause of action arose in Salumbar and the FIR was lodged there, which falls within the jurisdiction of the Rajasthan High Court at Jodhpur.

Issues: 1. Whether the Jaipur Bench of the Rajasthan High Court had jurisdiction to entertain the anticipatory bail petition filed by the petitioners. 2. Whether the residence of the accused is relevant in determining the jurisdiction for anticipatory bail under Section 438 of the Cr.P.C.

Ratio Decidendi: 1. The court relied on the Full Bench judgment of the Patna High Court in Syed Zafrul Hassan v. State, which held that the court having jurisdiction over the locale of the commission of the offence is the appropriate court to grant anticipatory bail under Section 438 of the Cr.P.C. 2. The court held that the residence of the accused is irrelevant in determining the jurisdiction for anticipatory bail.

Final Decision: The court dismissed the bail petition as not maintainable due to lack of territorial jurisdiction.

Advocates:
For the Petitioners:S.K. Gupta, Advocate.
For the State: G.S. Fauzdar, Public Prosecutor.

JUDGMENT

1. - This order governs the disposal of bail application filed under Section 438 of Cr.P.C. by Mr. S.K. Gupta Advocate on behalf of the applicants pertaining to F.I.R. No. 90/2009 of police station Salumbar, District Udaipur, in the offences under Sections 498A, 323 and 452 of IPC.

2. Heard the learned counsel for the petitioners as also learned Public Prosecutor appearing for the State and perused the relevant material available on record.

3. Learned counsel for the petitioners has canvassed that they belonged to District Bharatpur but the FIR by the complainant, has been lodged at Salumbar, District Udaipur. Though, the incident did not take place there, but with a view to drag the petitioners, jurisdiction of Salumbar court has been created resting on false allegations. Learned counsel has further contended that the petitioners have been facing a problem of jurisdiction, inasmuch as the whole division of Udaipur has been on strike. Similarly, the lawyers at Jodhpur also have been on strike, hence, they stand restrained from filing application under Section 438 of Cr.P.C. at both the places viz. Sessions Court Salumbar and Rajasthan High Court at Jodhpur. The petitioners have been falsely implicated. The FIR has been lodged after an inordinate delay of one and a half month of the occurrence. The arrest of the petitioners is not required for any purpose, hence, they may be granted indulgence of anticipatory bail.

4. Learned Public Prosecutor appearing for the State has opposed the bail petition chiefly on the ground that this Court has no jurisdiction to entertain the bail petition, as in the instant case, the jurisdiction lies with the Sessions Court, Udaipur or Rajasthan High Court, at Jodhpur. Hence, the bail petition, not being maintainable, deserves to be dismissed.

5. With regard to maintainability of bail petition on hand, learned counsel for the petitioners has canvassed that the instant application was maintainable and this Court had full territorial jurisdiction to decide this petition. He has cited a judgment rendered in the case of Jodha Ram v. State of Rajasthan by this court reported in 1994 RCC 243 in support thereof.

6. The most crucial question springing for consideration in the instant case is that, If, in a case where the criminal case is lodged with police station at one place and the accused resides at another place outside the jurisdiction of that police station, then in such a situation, whether apprehension of arrest at a place where a person is residing, gives jurisdiction to the local Sessions court or the High Court of that State to grant anticipatory bail to the person apprehending such arrest under Section 438 of Cr.P.C. The High Courts with regard to the territorial jurisdiction in respect of petitions moved under Section 438 of Cr.P.C. are at variance. There is no authoritative pronouncement of the Hon'ble Apex Court on the point. The judgment of Jodha Ram v. State of Rajasthan rendered by this Court rests upon the view taken by the Patna High Court in the case of Madan Mohan Choudhary v. State of Bihar, 1985 Cr. L.J. 1754 , but the judgment rendered by Patna High Court (supra) has been overruled by Full Bench judgment of Patna High Court given in the case of Syed Zafrul Hassan v. State, (FB)1986 Cr. L.J. pg. 605 . The Full Bench of Patna High Court in this case has held as under:-

"Section 438 of the Code does not permit the grant of anticipatory bail by any High Court or any court of Session within the country where the accused may choose to apprehend arrest. Such a power vests only in the Court of Session or the High Court having jurisdiction over the locale of the commission of the offence of which the person is accused. Question of residence of accused is irrelevant in such a case."

7. In this case, the offence was committed within the jurisdiction of Patna Bench of Patna High Court and the petition under Section 438 of Cr.P.C. was filed seeking anticipatory bail before the Ranchi B