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R.S. Verma, J.—This application u/s 482 Cr.P.C. was initially filed for grant of aniticipatory bail u/s 438 Cr.P.C. However, when the matter was being argued finally, the learned counsel for the petitioner urged that he may be permitted to treat this petition as one filed u/s 482 Cr.P.C. In the circumstances of the case, I permitted him to do so. Hence, the application has been heard u/s 482 Cr.P.C. It may be so registered by the office.
Now, the factual matrix. The petitioner is a resident of Sojat City within territorial limits of Addl. Sessions Judge, Sojat exercising jurisdiction in Sessions Division, Pali. The petitioner apprehended his arrest in connection with F.I.R. No. 88 of 1993 of P. S. Fatehpur, for offences under Sections 302, 304, 328 I.P.C, read with Section 54 of the Rajasthan Excise Act. Hence, he moved an application for grant of anticipatory bail u/s 438 Code of Criminal Procedure (hereinafter ''the Code'') before the learned Addl. Sessions Judge, Sojat. Admittedly, P. S. Fatehpur did not fall within the territorial jurisdiction of Additional Sessions Judge, Sojat but fell within the jurisdiction of Sessions Judge, Sikar. By the impugned order dated 4-12-1993, learned Addl. Sessions Judge, Sojat dismissed the application in limine, on the short ground that he had no jurisdiction to hear the application and it was Session Judge, Sikar, who alone was competent to hear the application.
By the present petition, the petitioner seeks to challenge the correctness of the aforesaid order of learned Addl. Sessions Judge, Sojat and submits that the learned Addl. Sessions Judge, Sojat did possess jurisdiction to hear the application of the petitioner, inasmuch as the petitioner apprehended his arrest within the jurisdiction of the learned Addl. Sessions Judge. By declining to hear the application on merits, the learned judge refused to exercise jurisdiction vested in him by law and thus committed grave illegality. Hence, this Court must intervene and direct the learned Addl. Session Judge to rehear the application of the petitioner and decide it on merits.
Learned Public Prosecutors Sarvashri K. L. Thakur and Lalit Kawadia have vehemently opposed the petition and have raised following contentions:
(i) This Court has no jurisdiction to hear this petition u/s 482 Cr.P.C. as the offence out of which the petition arises, was committed within the jurisdiction of Sessions Judge, Sikar falling within the territorial jurisdiction of Jaipur Bench of this Court. Hence, the petition could not have been filed at Jodhpur but could have been filed only at Jaipur.
(ii) Powers u/s 482 Cr.P.C. are exceptional powers and cannot be exercised, when an alternative remdy is available under the law. In this case, petitioner could have very well moved an application u/s 438 Cr.P.C. before Sessions Judge, Sikar.
(iii) Petitioner''s learned counsel is wrong in contending that a learned judge exercising jurisdiction in Sessions Division Pali had territorial competence to hear the application even though the offence to which it pertained was committed within the jurisdiction of Sessions Judge, Sikar.
Learned counsel for the petitioner has controverted all the aforesaid contentions.
I have carefully considered the rival contentions and have given my earnest consideration to them. First of all, I shall consider the contention that this Court has no jurisdiction to hear this petition and the petition should have been filed at Jaipur Bench. The contention is based upon decision of a Division Bench of this Court reported in Virendra Dangi v. Union of India 1992 (1) WLC (Raj) 419 and more particularly the provisions of the presidential order dated 8th December, 1976 as also another Division Bench decision of this Court reported in Ram Rakh Vyas Vs. The Union of India (UOI) and Others, This Presidential order reads as follows:
"MINISTER OF LAW JUSTICE AND COMPANY AFFAIRS (Department of Justice) NOTIFICATION
New Delhi, the 8th December, 1976
G. S. R. 911 (E). - The following Order made by the President under sub-section (2) of Section 51 of the States Reorganisation Act, 1956 (37 of 1956) is hereby published as required by that sub-section:-
THE HIGH COURT OF RAJASTHAN (ESTABLISHMENT OF A PERMANENT BENCH AT JAIPUR) ORDER, 1976.
In exercise of the powers conferred by subsection (2) of Section 51 of the States Reorganisation Act, 1956 (37 of 1956), the President after consultation with the Governor of Rajasthan and the Chief Justice of the High Court of Rajasthan is pleased to make the following Order, namely:-
Short title and commencement.- (1) This Order may be called the High Court of Rajasthan (Establishment of a Permanent Bench at Jaipur) Order, 1976.
(2) It shall come into force on the 31st day of January, 1977.
Establishment of a Permanent Bench of the Rajasthan High Court at Jaipur. - There shall be established a permanent Bench of the High Court of Rajasthan at Jaipur, and such Judges of the High Court of Rajasthan, as the Chief Justice of that High Court may, from time to time, nominate, shall sit at Jaipur in order to exercise the jurisdiction and power for the time being vested in that High Court in respect of cases arises in the districts of Ajmer, Alwar, Bharatpur, Bundi, Jaipur, Jhalawar, Jhunjhunu, Kotah, Sawai Madhopur, Sikar and Tonk:
Provided that the Chief Justice of that High Court may, in his discretion, order that any case or class of cases arising in any such district shall be heard at Jodhpur.
Sd/- F.A. Ahmed PRESIDENT.
New Delhi,
December 9, 1976."
It may be stated that this Presidential Order was followed by certain consequential orders issued by Hon''ble the Chief Justice. These orders in chronological order are as follows:
"RAJASTHAN HIGH COURT JODHPUR NOTIFICATION. No. I./J.D. Dated, December 23, 1976.
In pursuance of the High Court of Rajas-than (Establishment of a Permanent Bench at Jaipur) Order, 1976, and in exercise of powers under Sub-sections 54 and 57 of the States Reorganisation Act, 1956, the Hon''ble the Chief Justice has been pleased to order that with effect from the 31st day of January, 1977:-
(a) all cases arising in the revenue districts of Banswara, Barmer, Bikaner, Bhilwara, Chittorgarh, Churu, Dungarpur, Ganganagar, Jaisalmer, Jalore, Jodhour, Nagaur, Pali, Sirohi and Udaipur (Except such case or class of cases as may by special order be transferred to Jaipur Bench) shall be disposed of by the Court at Jodhpur, and
(b) All cases arising in the revenue districts of Ajmer, Alwar, Bundi, Bharatpur, Jaipur, Jhalawar, Jhunjhunu, Kotah, Sawaimadhopur, Sikar and Tonk (except such case or class of cases as may be special order be transferred to the Court at Jodhpur) shall be disposed of by the Court at Jaipur.
Provided that a Vacation Judge, whether sitting at Jodhpur or at Jaipur may hear any case irrespective of the district in which it has arisen for the purpose of deciding any matter which in his opinion requires immediate action.
Explanation-A writ case shall be deemed to arise in the district when the first order pertaining to that case was passed by a Court. Tribunal or Authority irrespective of the district in which the appeal or revision from that order is heard and irrespective of the fact whether or not there has been any modification or reversal of the order in appeal or revision.
Sd/-VedPal Tyagi
Chief Justice
23-12-1976."
The above order was modified on 12-1-1977 by the insertion of a new Explanation reading as below:-
"In the above order for the Explanation the following may be substituted, -
''Explanation - A writ case shall be deemed to arise in the district where the cause of action for issuing the first order pertaining to that case passed by a Court, tribunal or authority has arisen irrespective of the district in which the appeal or revision from the Order is heard and irrespective also of the fact whether or not there has been any modification or reversal of the order in appeal or revision.''
Sd/-VedPalTyagi
Chief Justice
12-1-1977".
To facilitate the functioning of the High Court Bench at Jaipur from 31-1-1977 Hon''ble Acting Chief Justice made three other orders dated 23-12-1976 relating to matters incidental thereto, which read as follows:-
"To facilitate the functioning of the High Court Bench at Jaipur from January 3,1,1977, case arising in the districts of Ajmer & Alwar, Bundi, Bharatpur, Jaipur, Jahalawar, Jhunjhunu, Kotah, Sawaimadhopur, Sikar and Tonk shall not be listed in Court at Jodhpur for hearing with effect from the 3rd of January, 1977, unless specially ordered to be head at Jodhpur.
Sd/-Ved PalTyagi
Chief Justice
23-12-1976".
"In pursuance of the High Court of Rajasthan (Establishment of Permanent Bench at Jaipur) Order, 1976, it is ordered that all pending cases as per Annexures A, B and C which have arisen out of the revenue districts of Ajmer, Alwar, Bundi, Bharatpur, Jaipur, Jhalawar, Jhunjhunu, Kotah, Sawaimadhopur, Sikar and Tonk shall stand transferred to the Jaipur Bench with effect from the date the Jaipur Bench is established.
Sd/-VedPalTyagi
Chief Justice
23-12-1976".
"In view of the establishment of a permanent Bench at Jaipur vide the High Court of Rajasthan (Establishment of a Permanent Bench at Jaipur) Order, 1976, it is ordered than all part-heard cases which have arisen out of the revenue districts of Ajmer, Alwar, Bundi, Bharatpur, Jaipur, Jahalawar, Jhujhunbu, Kotah, Sawaimadhopur, Sikar and Tonk, shall not be treated as part-heard.
It is further ordered that if a case or class of cases which has arisen out of any of the revenue districts of Ajmer, Alwar, Bundi, Bharatpur, Jaipur, Jhalawar, Jhunjhunu, Kotah, Sawaimadhopur, Sikar and Tonk, is linked with a case or class of cases arising out of any of the revenue districts of Bhanswara, Barmer, Bikaner, Bhilwara, Chittorgarh, Churu, Doongarpur, Ganganagar, Jaisalmer, Jalore, Jodhpur, Nagaur, Pali, Sirohi and Udaipur, it shall be treated as delinked.
Sd/-Ved Pal Tyagi
Chief Justice
23-12-1976".
'' Now, the short question is whether the present petitioner can be said to be ''a case arising out'' of a district falling within the jurisdiction of Jaipur Bench. It may be readily stated that the expression ''case'' has not been defined in the Presidential order or in the orders issued by Hon''ble the Chief Justice. In Reader''s Digest Great Encyclopaedic Dictionary 3rd Edition, expression ''case'' has been inter alia defined as follows :
"case .. 3(law) cause, suit, for trial; statement of facts in cause drawn up for consideration of higher court; cause that has been decided."
This last meaning would embrace within its ambit the order of the learned Addl. Sessions Judge, Sojat by which he declined to entertain the application of the petitioner. So far as the present petitioner, it is a cause that has been decided. Hence, ''case'' cannot be equated with ''an offence'' at all. To illustrate this, instances may be cited where an offence committed may give rise to a number of cases, for which different remedies may be available under criminal and civil laws. This is true that the application moved u/s 438 of the Code before learned Addl. Sessions Judge, Sojat did arise out of an offence committed within a district falling within the jurisdiction of Jaipur Bench. But the expression ''case'' used in the Presidential Order and the orders of the Hon''ble Chief Justice cannot be equated with the expression ''offence committed'' or ''case arising out of an offence committed''. The jurisdiction to hear this petition arises out of the impugned order passed by learned Addl. Sessions Judge, Sojat dismissing the application of the petitioner, moved in the said court. Hence, for the purposes of this petition, it is a ''case arising out'' of the district of Pali, which falls within the jurisdiction of the principal seat. I may here state that none of the two rulings cited before me, had an occasion to interpret the expression ''case arising out of with reference to a petition u/s 482 of the Code. There is a golden principle of interpretation that when a statute is capable of more than one interpretation, then that interpretation should be adopted, which leans in favour of an accused. Hence, the expression ''case'', may be given a liberal interpretation and may not be equated with the ''offence'' itself, out of which the case may arise. Viewed in this perspective, the present petition u/s 482 of the code would be a ''case'' arising in district Pali. Hence, I am of the firm view that for purposes of the present petition, it is a case arising out of Pali District, wherein the petitioner moved his application u/s 438 of the Code and was dismissed by a judge exercising jurisdiction in the said district. 1, therefore, repel the first contention of the learned Public Prosecutors and hold that a judge siting at the principal seat has jurisdiction to hear the petition. This view is in consonance with Madan Mohan Choudhary Vs. State of Bihar, where a similar contention with regard to jurisdiction of a Bench of that High Court was raised on basis of similar provisions contained in Section 2 of High Court at Patna (Establishment of a Permanent Bench at Ranchi) Act, 1976.
This takes me to the consideration of the second preliminary objection raised on behalf of the State. This is true that power u/s 482 of the Code is an exceptional power and has to be exercised with care and caution and may not be exercised where an alternative and equally efficacious remedy is available. It is urged on behalf of the State that the petitioner could have filed an application u/s 438 of the Code before the learned Sessions Judge, Sikar or before Jaipur bench of the High Court. Since such an alternative remedy is available, he should not be permitted to invoke the inherent powers of the Court u/s 482 of the Code. Shri N. M. Lodha has countered this by saying that he is seeking to invoke the inherent powers of the Court with a view to correct a perverse and illegal refusal to exercise jurisdiction by the learned Addl. Sessions Judge, Sojat and this remedy is not available to him under law before Jaipur Bench. An application u/s 438 of the Code would not be an equally efficacious alternative remedy at all. The remedy would be quite onerous and he shall have to go to Sikar or Jaipur to seek this remedy. In my opinion, Shri Lodha is right in contending that firstly, no alternative remedy is available to the petitioner for correcting the error committed by the learned Addl. Sessions Judge in refusing to entertain the application of the petitioner; secondly, the suggested remedy is quite onerous as urged. Hence, I overrule this preliminary objection.
This takes me to the consideration of the most crucial and vital aspect of the matter viz whether the learned Addl. Sessions Judge, Sojat erred in law and acted illegally in refusing to exercise a jurisdiction vested in him by law and hence intervention of this Court is necessary to secure ends of justice.
Section 438 of the Code reads as follows:
"438. Direction for grant of bail to person apprehending arrest. (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
(2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including-
(i) a condition that the person shall make himself available for interogation by a police officer as and when required;
(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer,
(iii) a condition that the person shall not leave India without 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 a person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and it prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1)."
The sole question is whether apprehension of arrest at a place where a person is residing, gives jurisdiction to the local Sessions Court to grant, anticipatory bail to the person apprehending such arrest u/s 438 of the Code.
I may readily state that there is an acute cleavage of opinion in this regard among the different High Courts of the country. There is no authoritative pronouncement of the apex Court on the point. There is a solitary ruling of this Court reported in Bimal Kumar Jain v. State 1988 (3) Crimes 894 , wherein power to grant bail by a Court having jurisdiction over the place where the offender apprehended his arrest was recognized, without examining the question in depth. Hence I shall have to examine this matter in some depth.
In Bimal Kumar Jain''s case (1988 (3) Crimes 894 (Raj)) (supra), a case against the accused-petitioner was registered for offences under Sections 486 and 114 I.P.C. and Sections 63, 78 and 79 of the Indian Trade Marks Act at Police Station Salvatpura, District Surat (Gujarat). He apprehended his arrest in Rajasthan and moved an application for grant of anticipatory bail before the Jaipur Bench of this Court. A learned single Judge of this Court deemed it proper to grant anticipatory bail to the petitioner for a limited period, the learned Judge inter alia observed :
"I am afraid a blanket order u/s 438 Criminal Procedure Code cannot be passed by this Court. However, in the facts and circumstances of the present case, I deem it proper to give protection to the petitioner for the time being till he presents himself before the Investigating Officer."
The learned Judge gave certain directions in conformity with the provisions of Section 438 of the Code. This narration goes to show that this High Court did recognize the power of the Court to grant anticipatory bail even though for a limited period, in a case where FIR had been registered for an offence committed outside the State.
I may readily concede that this order of the learned single Judge neither noticed the cleavage of opinion among different High Courts on this aspect, nor gave any reasons for taking the particular view. Hence, as stated earlier, the position deserves to be examined in some details.
Preamble to the Constitution of India inter alia assures dignity of the individual. Article 20 of the Constitution of India inter alia mandates that no person sail be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence. Article 21 of the Constitution of India injuncts that no person shall be deprived of his life or personal liberty except according to procedure established by law.
Bail, as understood in common parlance security given by a person guaranteeing that the offender, for whom security has been furnished, shall appear before the concerned court on date/dates of hearing during the course of trial of a charge, which such person faces. Code of Criminal Procedure contemplates grant of bail, both by a police officer conducting investigation as also by a Magistrate/Court, having jurisdiction over the matter. The power to grant bail is thus incidental to the power to conduct investigation as also to the power to try aria convict an offender. Under the Code of Criminal Procedure, some offences have been described as bailable and some have been classified as non-bailable. In bailable offences, an accused is entitled to grant of bail as of right. In non-bailable offences, grant of bail depends upon a variety of factors e.g. gravity of offences, probability of accused absconding or tampering with the evidence. Offences are then classified as cognizable and non-cognizable. A cognizable offence is one for which a police officer may arrest the offender without a warrant. For a non-cognzable offence, a police officer may not arrest a person unless he has been authorised by a proper warrant to do so.
It may be stated that Section 4 of the Code governs the investigation, enquiry and trials of various offences, whether under the Indian Penal Code or other statutes, subject of course to provisions of Special Acts, which might lay down some special provisions governing such trials.
The Code contemplates territorial jurisdiction in respect of enquiries and trials in respect of offences triable under the provisions of the Code. Chapter II of the Code deals with constitution of various criminal courts including their territorial jurisdictions. Chapter V of the Code deals with arrest of persons and makes detailed provisions in this regards. Section 48 of the Code empowers a police officer to pursue an offender, whom he is authorised to arrest, throughout the territory of the country. This provision confers an extra-territoriality in the matter of arrest by a police officer. Certain safeguards have been provided by provisions of Sections 50, 56, 57 and 58 of the Code. Provisions of Chapter VI of the Code deal inter alia with coercive processes issued for compelling attendence before a court and provision of Section 77 of the Code again confers extra-territoriality in matters of arrest under this Chapter. Section 81 of the Code deals with provisions for grant of bail to accused persons arrested outside the territorial jurisdiction of a court which issued the warrant of arrest.
The aforesaid provisions go to show that though in matters of enquiries and trials, there is territorial distribution of work; however, in matters of arrest of an offender extra-territorial jurisdiction has been conferred whether arrest is in pursuance of a warrant issued by a court of without warrant by a police officer.
Power to grant bail have been more specifically dealt with under Chapter 33 of the Code. These powers are not in derogation of powers conferred by Section 59 or 81 of the Code but are in addition to such powers conferred by these sections. Chapter XXXIII of the Code begins with Section 436, which deals with grant of bail in offences which are bailable. Section 437 of the Code deals with provisions for grant of bails to accused persons arrested in connection with non-bailable offences. Section 438 of the Code is a special provision enacted with a view to provide for directions in respect of persons, apprehending arrest in connection with non-bailable offences. Section 439 of the Code deals with Special Powers of Courts of Sessions and of High Courts.
There is nothing in the scheme of Section 438 of the Code which may restrict its operation to accused persons over whom the court of Sessions or the High Court has territorial jurisdiction with regard to inquiries and trials. It is very much compatible with power to grant bail to a person who apprehends arrest within the territory of the court from which bail is sought but has no jurisdiction to try the offender. As stated earlier, this is actually a new provision which did not exist in the earlier Codes. It would be proper to recall that prior to the enactment of this section, the settled judicial opinion was that unless a person was under restraint, i.e. in custody, no bail could be granted. The Law Commission is its 41st report, para 49.9 recommended insertion of a provision for grant of anticipatory bail on the following grounds:-
(1) Some times influential persons try to implicate their rivals in false cases for disgracing them or for other purposes of getting them detained in jail for some days;
(ii) in recent times, this tendency is on increase because of accentuation of political rivalries; and
(iii) there seems no justification to require an accused person first to submit to custody, remain in prison of some days and then apply bail, where he is not likely to abscond or misuse his liberty while on bail (kindly see B. B. Mitra: Code of Criminal Procedure, Sixteenth Edition Vol. 2, page 1137 under heading Legislative History)
Section 438 of the Code reproduced above was a subject matter of scrutiny by the apex court in celebrated case of Shri Gurbaksh Singh Sibbia and Others Vs. State of Punjab, The Apex Court distinguished the ordinary provisions of bail contained in the Code from the provisions of Section 438 of the Code in the following words:
"The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and, therefore, means release from the custody police, the latter is granted in anticipation of arrest and is, therefore, effective at the very moment of arrest."
Thus the contingency in which a person may apply for grant of anticipatory bail, is his apprehension about his arrest at the given point of time. The opening words of the section are ''when any person has reason to believe that he may be arrested on accusation of having committed a nonbailable offence, he may apply to the High Court or the Court of Session for decision under the section''. Thus, the basis of making an application under this section is the belief of the person, as specified in this section. Hence, I am of the view that the court within whose jurisdiction, a person apprehends his arrest for a non-bailable offence has jurisdiction to grant anticipatory bail to such person notwithstanding the fact that the offence for which he apprehends his arrest, was committed beyond the territorial jurisdiction of the High Court or the Court of Session, to which he has applied under this section.
I have already referred to Bimal Kumar Jain''s case 1988 (3) Crimes 894 (Raj)) (supra) and my view is supported by the view expressed in the said case by a learned single Judge of this Court. The view taken in that case commends itself to me and I have no reason to take a different view.
I may state that this very view was taken by the following High Courts in cases noted below, after discussing the relevant provisions of law:
I State of Bihar Vs. Uma Shankar Ketriwal and Others, II Bombay High Court, N.K. Nayar and Others etc. Vs. State of Maharashtra and Others, III Calcutta High Court (DB), B.R. Sinha v. The State 1982 Cr LJ 61; IV Karnataka High Court (S.B.), Dr. L.R. Naidu v. State of Karnataka 1984 Cri LJ 757 ; V Patna High Court (DB), Madan Mohan Choudhary Vs. State of Bihar,
Hence, I would fall in line with the view propounded in these cases.
Now, I may take up the cases relied upon by the learned Public Prosecutors. First of all strong reliance was placed upon S. B. Judgment of Jammu and Kashmir High Court reported in Mohan Singh Parihar Vs. Commissioner of Police and Others, The view taken in this case is based on two reasonings. Firstly, the order passed by a court or High Court may not be obeyed by the courts situated beyond territorial jurisdiction of such court, because such court does not exercise appellate powers or revisional powers over such courts outside territorial jurisdiction; it does not have even power of control or of superintendence over such courts outside territorial limits. In the words of the learned Judge himself (at p. 1185):
"5. That apart, the High Court of Jammu and Kashmir not having the appellate powers under Chap. XXXI nor the revisional powers under Chap. XXXI of the Codefaor even the powers of superintendence and control u/s 104 of the Constitution of Jammu and Kashmir in relation to Courts situated outside the territory of the State, its order will have no binding force on those Courts. The same will be true of the Police Station which are situated outside the territory of the State. Law will not, therefore, counteance a situation where an order of the High Court may be flouted by a matter by an officer-in-charge of a police station with impunity. If the interpretation sough to be placed on Section 497-A by Mr. Singh, that the High Court and the Court of Session have powers to grant anticipatory bail to a person against whom a case has been registered with a police, situated outside the territory of the State is to be accepted, then a situation is likely to arise where the High Court of Jammu and Kashmir may have to watch as a helpless spectator its order granting an anticipatory bail to the accused in that case being disregarded by the officer-in-charge of the police station. Such cannot be the true intent and scope of Section 497-A."
With utmost respect, I may submit that this reasoning is not appropriate. The power to enforce its orders does not wholly flow from the appellate or revisional jurisdiction or even the power of control and superintendence. These triple powers do not exhaust the authority of a High Court to enforce its orders beyond its territorial jurisdiction. The real power to enforce its orders arises by virtue of Article 215 of the Constitution of India which declares ''every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.'' The power to punish for contempt of itself also includes the power to punish for contempt of a subordinate court including court of Session. Hence, if a High Court or Court of Session grants anticipatory bail to a person, a police officer or for that matter a subordinate court of a place outside the territorial limits of the Court granting bail would flout such an order on his own peril and would be liable to be punished for contempt. To my mind, the apprehension is more imaginary than real and misses the import of Article 215 of the Constitution of India, which in no uncertain terms preserves the power of the High Court to punish for contempt.
The other reasoning in this case is based on the concept of territorial jurisdiction of hierachy of courts to try offenders. The grant of anticipatory bail does not impinge upon the trial of the case at all and is only a safeguard, basically pre-trial and is in consonance with the concept of human dignity enshrined in the constitution of the country. The other reasoning advanced by the learned Judge is that provisions of Sections 497A, 497 and 167 of J.K. Cr. P.C. may come in conflict with each other. The apprehension of conflict is more imaginary than real because anticipatory bail is a pretrial matter. I, thus, find no conflict in grant of anticipatory bail with the provisions of either Section 497 or 167 of J. K. Cr. P.C. Moreover, extra-territorial power to grant bail is meant to safeguard a person from unjust extra-territorial arrest.
Now, I may consider Ravinder Mohan Bakhshi and Another Vs. State of Puniab and Others, decided by a learned single Judge of Punjab and Haryana High Court. In that case the learned Judge was greatly inflenced by the fact that the jurisdiction of the court arises with reference to an offence and not with reference to offender. The second reasoning was that there may be some practical difficulties if anticipatory bail is granted by a court, not having jurisdiction to try the same. The judgment says that in such a case there will be no material on the basis of which it can be said as to whether the petitioner is entitled to anticipatory bail or not. This reasoning does not take into consideration the true principles upon which anticipatory bail is granted and also misses to take into consideration the import of Sections 48 and 50 of the Code. In this context, I may state that there is a presumption of innocence of a person. An accused is presumed to be innocent till he is convicted. The object of keeping him in detention during investigation is that he may not free from justice, He may not tamper with evidence pertaining to the case and may afford assistance in investigation. The provisions made in Section 438, Cr. P. C. with regard to directions to be given take care of all these situations. When an investigating officer goes out of his territorial jurisdiction to effect arrest, he is required to comply with provisions of Section 50(1) of the Code. This shows that he must be armed with necessary material with full particulars and grounds on which arrest is sought to be made. This would adequately take care of the situation contemplated above and in suitable cases concerned S.H.O. can be asked to keep ready the case diary, before a final order is passed in the matter and he is bound to do so. If he fails to do so, he does it on his own peril and may face a charge of contempt.
Now, I may take into consideration Dr. Pradeep Kumar Soni Vs. State of Madhya Pradesh, This ruling again proceeds on the view that Chapter XIII of the Code provides for territorial jurisdiction of courts and hence jurisdiction to grant bail arises with reference to offence and not with reference to the offender. The ruling does not take into consideration the fact that pretrial arrest has nothing to do with trial of the case and if there can be an extra-territorial arrest, the jurisdiction to grant anticipatory bail may rest with the court having jurisdiction over the place where arrest is apprehended. Learned single Judge deciding the case was particularly influenced by the fact that only the court having jurisdiction can try the accused and if he is tried by any other court, the court is corum non judice. He has not taken into consideration the fact that there is no trial at the stage, the anticipatory bail is asked for and hence there is no question of there being a corum non judice.
The learned Judge also ruled that Section 438 of the Code is unambiguous and does not call for any interpretative endeavour and does not explicitly state about the venue where application for anticipatory bail could be filed. I agree with the learned Judge that Section 438 of the Code is unambiguous. But, with utmost respect, I do not agree with him that Section 438 of the Code does not spell out the venue where such an application can be filed. The opening words of Section 438 of the Code give a definite clue to the forum where an application for anticipatory bail is to be filed viz. the reasonable apprehension of arrest, which could always be extra-territorial. Learned Judge proceeded on the assumption that grant of anticipatory bail was wholly an incidental matter to the original trial. With utmost respect, such a grant of anticipatory bail is not an incidental matter to the trial only but is also a matter incidental to the investigation stage, which is definitely a pretrial stage. It is incidental to the stage, when only evidence is being collected. This would be clear from the definition of ''investigation'' provided in Section 2(h) of the Code and such an order for grant of bail becomes effective only when an actual arrest is made. Actually, the term anticipatory bail itself is a misnomer, because it is really a direction for release in the event of arrest. In Bal Chand Jain v. State of M. P. (AIR 1977 SC 366), the apex Court made the following observations in para 4:
"Now, Section 438 contemplates an application to be made by a person who apprehends that he may be arrested on an accusation of having committed a non-bailable offence. It is an application as an apprehension of arrest that invites the exercise of power u/s 438. And on such an application, the direction that may be given u/s 438 is that in the event of his arrest, the applicant shall be released on bail."
In the aforesaid premises, I prefer to follow the majority view expressed by the High Courts of Delhi, Bombay, Calcutta, Karnataka and Patna and with utmost respect disagree with the view taken by the High Courts of Jammu and Kashmir, Punjab and Haryana and Madhya Pradesh and hold that application u/s 438 of the Code was maintainable before the learned Addl. Sessions Judge, Sojat, notwithstanding the fact that he did not have jurisdiction to try the offence, out of which the application arose. Thus, the impugned order of learned Addl. Sessions Judge, Sojat is manifest illegal and cannot be sustained and is quashed.
Since I have not touched the merits of the case, I direct the learned Addl. Sessions Judge Sojat to hear the petitioner on his bail application moved u/s 438, Cr. P. C. and decide the same on merits. In case, need be, he shall be free to grant such interim relief to the petitioner, as exigencies of the case may require, till final disposal of the application by him. Adoption of such a course is expressly warranted by the observations of Hon''ble Supreme Court made in Bal Chand Jain, para 15 (supra) also.