Sarkar (II), J.:— It is a matter of anticipatory ball under Section 438 Cr. P.C in connection with the offences committed outside this State. Several out-station cases are pending in the list under the heading ‘Anticipatory Bail’ before this Bench.
2. At the initial stage of hearing, the learned Advocate for the petitioner has referred to the Full Bench Decision of this High Court in case of (1) Satiesh Jaiswal v. State reported in 1998 Cal. Cr. LR (Cal) at page 342. The question which was referred to and decided by the Full Bench was whether the High Court or Sessions Court having no territorial jurisdiction over the place where offence was committed could exercise the power of granting anticipatory bail or not. It appear, majority of the Judges concurred to the judgment written by Hon'ble Mr. Justice Basudeva Panigrahi. It further appears from the said judgment, that several decisions touching the point in question were placed before that Full Bench. Out of the catena of decisions referred to the Full Bench, the Full Bench decision of the Patna High Court in the case of (2) Syed Zafrul Hassan v. State reported in AIR 1986 at page 144, appears to have carried more weight with the Judges of the Full Bench of this Court.
3. The said Full Bench decision of the Patna High Court as mentioned above lays down that in the matter of granting anticipatory bail, the jurisdiction of the Sessions Court and High Court should remain confined to the territorial jurisdiction, that means, the Court must have jurisdiction over the place where the offence was committed. It is further laid down that question of residence of the accused or the place of apprehension of arrest would not create any jurisdiction.
4. Against such background we find, Paragraph 21 of the Full Court decision of the Calcutta High Court as referred to above, contains the specific views of this High Court. It is clearly laid down in that paragraph that the reasonings contained in the Full Bench decision of the Patna High Court appears to be more reasonable and convincing and as such the Judges of the Full Court in Jaiswal's case (supra) agreed to the views and relied upon the same.
5. Against that background it should be reasonably presumed that the place of residence of the accused or apprehension of arrest in the mind of the accused would not create the jurisdiction under Section 438 Cr. P.C But towards the concluding part of Paragraph 24 of the said decision it is laid down, that the exercise of jurisdiction of anticipatory bail by any other Court namely the High Court or the Court of Sessions beyond the local limits of the jurisdiction is limited to the extent of consideration of a bail for the transitional period but, it has no jurisdiction to transgress into the limits of the local jurisdiction of the Court within which offence is alleged to have been committed?
6. The learned Advocate appearing for the petitioner has given stress on this part of the judgment and has submitted that for the transitional period this Court may grant anticipatory bail for a limited period.
7. On the other hand in the self-same judgment the then Chief Justice of this Court, namely Mr. Justice Probha Shanker 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.
8. Thus we find the seed of confusion in the self-same judgment—the definition of High Court as contained in Section 2(e) of the Criminal Procedure Code lays down ‘High Court’ means:—
(i) In relation to any State, the High Court for that State;
(ii) ……………………………………
9. It is also laid down by Article 214 of the Constitution of India that their shall be a High Court for each State. Considering the above statutory provisions hardly there can be any doubt that 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. We fully agree with the views expressed by his Lordship, the hon'ble Ex-Chief Justice of this Court namely Mr. Justice Probha Shanker Mishra. But this view is very difficult to re-concile with the views expressed by the Han'ble Mr. Justice Basudeva Paoigrahi towards the last part of Paragraph 24. If any offence is committed outside the State i.e beyond the territorial jurisdiction of this High Court, how this High Court can exercise the jurisdiction under Section 438 Cr. P.C in connection with that offence? Hon'ble Mr. Justice Basudeva Paoigrahi has made it clear “that exercise of jurisdiction of anticipatory bail by any other Court namely the High Court or the Court of Sessions beyond the local limits of the jurisdiction is limited to the extent of consideration of bail for the transitional period but it has no jurisdiction to transgress the limits of the local jurisdiction or the Court within which offence is alleged to have been committed”.
10. The provision of ball for the transitional period is contained in Section 81 of the Cr. P.C and that can be granted by the Magistrate before whom such person arrested is brought or by the Chief Judicial Magistrate or the Sessions Judge as the case may be.
11. 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 ??? of that Magistrate and where for the arrest of such person, an 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 Magistrates 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 Section 81 Cr. P.C Therefore, it is not clear what the Full Bench has tried to convey by the expression “the jurisdiction is limited to the extent of consideration of ball for the transitional period ………………”.
12. A person who committed an offence outside, but resides within the territorial jurisdiction of this High Court, is never left without any relief. He may apply for anticipatory ball before the Sessions Judge or the High Court within the local limits of whose jurisdiction She offence is alleged to have been committed.
13. The provisions contained is Section 438 Cr. P.C confer special power only to the Court of Sessions 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 a class of citizen. So far as, the Sessions Judge is concerned, his power is limited to the territorial jurisdiction of his Sessions-Division and he cannot exercise the power under Section 438 Cr. P.C outside his Sessions-Division. Therefore, it is clear that the Sessions Judge has got no authority to exercise the power or jurisdiction under Section 438 Cr. P.C beyond the local limits of the territorial Jurisdiction of the Sessions-Division.
14. Applying the principle of ejusdem generis, we should not think otherwise, so far as the jurisdiction of the High Court ts concerned. It should be held that the High Court should exercise the jurisdiction under Section 438 of the Criminal Procedure Code within the territorial limits i.e within the State for which the High Court is created under Article 214 of the Constitution of India. Thus considering the position of law of different aspects of this particular point, we are not ready to accept the interpretation as advanced by the learned Advocate for the petitioner of the Full Bench decision in Jaiswal's case (supra). This decision never in clear terms lays down that the High Court can exercise the power and jurisdiction under Section 438 Cr. P.C beyond the territorial jurisdiction of the State. In short, we hold that the petition for the anticipatory bail under Section 438 Cr. P.C In connection with an offence of any out-station cannot be entertained by this High Court and as such the petition is not maintainable and accordingly disposed of.
15. This decision shall govern C.R.M No. 3021 of 1998, C.R.M No. 3327 of 1998 and C.R.M No. 3401 of 1998 respectively.
16. Tiwari, J.: I agree.
17. S.K.G
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