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The Supreme Court holds that a wife can initiate Section 498A proceedings from her parental home after leaving her matrimonial home.

Priya Indoria v. State of Karnataka


Priya Indoria v. State of Karnataka

The present appeals were filed by the complainant-wife, against the orders passed by the learned Additional City Civil and Sessions Judge Bengaluru City whereby he has granted anticipatory bail to the accused-husband and his family members in an FIR which alleged commission of offences under Sections 498A, 406 and 323 of the Indian Penal Code, 1860 registered by the complainant-wife at Chirawa Police Station, District Jhunjhunu, Rajasthan which is her parental home town.
According to the complainant-wife, the appellant before the Supreme Court, the facts giving rise to the present appeal are that the complainant-wife got married to the accused-husband on and started living in Bengaluru. Things however did not materialise between the two and the accused-husband filed a divorce petition under Section 13 of the Hindu Marriage Act, 1955 before the Principal Judge, Family Court, Bengaluru, Karnataka. The complainant-wife filed a Transfer Petition before the Supreme Court to transfer the case from the Principal Judge, Family Court, Bengaluru to the Court of Additional District Judge, Chirawa, Jhunjhunu, Rajasthan, after she had left her husband’s home to live at her paternal house. The complainant-wife also registered a First Information Report for offences under Sections 498A, 406 and 323 of the IPC, at Chirawa Police Station, District Jhunjhunu, Rajasthan. 
The Supreme Court was hearing an SLP against the judgment of Sessions Judge, Bangalore which had allowed the extraterritorial bail petition by the accused husband. Aggrieved by the same, the petitioner wife had approached the Apex Court in an SLP. The issue that arose for the court’s consideration was whether the ordinary place of inquiry and trial would include the place where the complainant-wife resides after being separated from her husband.
“In this case, we are concerned with what is loosely termed as ‘transit anticipatory bail’. As we have seen, the expression ‘anticipatory bail’ is not defined in the CrPC though it is traceable to Section 438 of CrPC. This Court in Balchand Jain had defined anticipatory bail to mean bail in anticipation of arrest. The Constitution Bench in Gurbaksh Singh Sibbia has held that filing of FIR is not a condition precedent for exercising power under Section 438 of CrPC. What is required for invocation of power under Section 438 is that the person seeking anticipatory bail should show reasonable belief of imminent arrest. If the expression ‘anticipatory bail’ is not a defined expression, then it is quite but natural that the larger expression ‘transit anticipatory bail’ would not find any exposition in the CrPC. Perhaps the need and necessity for transit anticipatory bail has occasioned because the police have been conferred power under the CrPC to pursue an accused in other jurisdictions. Immediately upon affecting the arrest of a person outside the jurisdiction where the offence is registered, the police is obligated to secure a transit remand. 
The arrested person has to be produced before the nearest magistrate. If such a magistrate finds that he has no jurisdiction to try the case in which the accused has been arrested, he may order the accused to be forwarded to a magistrate having the jurisdiction to try the case or to commit it for trial. Thus, the police is obligated to secure a transit remand of the accused for taking him from the place where he is arrested to the place where the crime is registered, for production before the competent magistrate in terms of the requirement of Article 22. As we have already noted, the primary purpose of such a transit remand is to enable the police to shift the person in custody from the place of arrest to the place where the matter can be investigated. It appears that from the aforesaid requirement of transit remand, has arisen the necessity of ‘transit anticipatory bail’ for, an affected person cannot be without a remedy.”
In view of what we have discussed above, we are of the view that considering the constitutional imperative of protecting a citizen’s right to life, personal liberty and dignity, the High Court or the Court of Session could grant limited anticipatory bail in the form of an interim protection under Section 438 of CrPC in the interest of justice with respect to an FIR registered outside the territorial jurisdiction of the said Court, and subject to the following conditions:
(i). Prior to passing an order of limited anticipatory bail, the investigating officer and public prosecutor who are seized of the FIR shall be issued notice on the first date of the hearing, though the Court in an appropriate case would have the discretion to grant interim anticipatory bail.   
(ii). The order of grant of limited anticipatory bail must record reasons as to why the applicant apprehends an inter-state arrest and the impact of such grant of limited anticipatory bail or interim protection, as the case may be, on the status of the investigation. 
(iii). The jurisdiction in which the cognizance of the offence has been taken does not exclude the said offence from the scope of anticipatory bail by way of a State Amendment to Section 438 of CrPC. 
(iv). The applicant for anticipatory bail must satisfy the Court regarding his inability to seek anticipatory bail from the Court which has the territorial jurisdiction to take cognizance of the offence. The grounds raised by the applicant may be - 

a. a reasonable and immediate threat to life, personal liberty and bodily harm in the jurisdiction where the FIR is registered; 
b. the apprehension of violation of right to liberty or impediments owing to arbitrariness; 
c. the medical status/ disability of the person seeking extraterritorial limited anticipatory bail.
Applying Rupali Devi, in view of the fact that the complainant wife herein claims to have received death threats and harassment over the phone even after her return to her parental home in Chirawa, Rajasthan the ordinary place of trial may be Chirawa. But in the present case by the impugned orders, the accused-husband and his family members were granted extra-territorial anticipatory bail without issuing notice to the investigating officer and public prosecutor in Chirawa Police Station, Rajasthan wherein the appellant had lodged the FIR. In view of the facts and circumstances of the present case and the conclusion to the points considered hereinabove, we allow and dispose of these appeals in the following terms:

a.  The impugned orders of the learned Additional City Civil and Sessions Judge Bengaluru City do not take note of respondent No.2 at all for allowing Criminal Misc. applications.
b.  The impugned orders are hence set aside. 
c.  However, in the interest of justice, it is directed that no coercive steps may be taken against the accused for the next four weeks, to enable them to approach the jurisdictional Court in Chirawa, Rajasthan for anticipatory bail.

It is also directed that in case applications under Section 438 of CrPC are made before the Court of Session in Chirawa or the High Court of Rajasthan, the same shall be decided expeditiously and on their own merits


Priya Indoria v. State of Karnataka

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