Syed Zafrul Hassan And Anr. vs State on 7 January, 1986

[Cites 15, Cited by 20]

Patna High Court

Syed Zafrul Hassan And Anr. vs State on 7 January, 1986

Equivalent citations: AIR1986PAT194, 1986(34)BLJR298, AIR 1986 PATNA 194, (1986) 2 CRI LC 299, 1986 BLJR 298, 1986 (1) RECCRIR 60, 1986 PATLJR 274, (1986) EASTCRIC 516, (1986) BLJ 367

1. Whether Section 438 of the Code of Criminal Procedure, 1973 envisages the grant of anticipatory bail by any High Court or any Court of Session within the country, irrespective of the locale of the commission of the offence, has come to be the larger question before this Full Bench.

2. The matrix of facts giving rise to the issue deserves only a brief notice. Syed Zafrul Hassan and Prasanta Majumdar, the two petitioners, are employees of the Associated Cement Company Ltd. and claim to bs the Dealing Assistant and the Head of the Section respectively in the Branch Office of the said company at Patna. At the instance of M. P. K. Kurup, Executive Engineer, a case under Sections 467/468/471/420/120B of the Indian Penal Code against them has been registered in the Jhinkpani Police Station, District Singhbhum, on the 18th of July, 1985 with regard to the supply of 800 metric tons of cement by the said company to the Government. It is unnecessary to recount the details of the allegations in the first information report, and it suffices that apprehending the arrest in pursuance thereof the petitioners have moved the present criminal miscellaneous petition.

3. At the motion stage itself, the issue came up for consideration that since the commission of the offence was within the district of Singhbhum, the Ranchi Bench of this Court alone would have jurisdiction. However, on behalf of the petitioners the stand taken was that a person apprehending arrest in any part of the country or the State can move any High Court or any Court of Session for anticipatory bail. Reliance was placed on a Division Bench judgment of this Court in Madan Mohan Choudhary v. State of Bihar, 1984 BBCJ 648 : (1985 Cri LJ 1754). Expressing some doubt about the correctness of the said view, the learned Judges of the Division Bench referred the matter for an authoritative adjudication by a larger Bench. As this was inevitably likely to take some time, the interim relief of the stay of the arrest of the petitioners was granted for one month and extended thereafter.

4. As before the Division Bench so before us, Mr. Braj Kishore Prasad for the petitioners contended that whenever and wherever any person has the apprehension of arrest, he can invoke the provisions of Section 438 of the Code of Criminal Procedure, 1973 (hereinafter to be referred to as the 'Code') before any High Court or any Court of Session. According to him, the governing factor therein was the place where the accused may apprehend arrest and not the place of the commission of the offence, or the jurisdiction of the Court of Session or the High Court over the same. It \vas argued that the provisions of this section were to safeguard the interest of the apprehending accused alone and all considerations whether the offence was committed within the jurisdiction of the Court of Session or of the High Court were totally alien to the issue. Reliance was placed on Madan Mohan Choudhary's case (supra) and Bhola Lal v. State of Bihar, 1984 Pat LJR 450, B. R. Sinha v. The State, 1982 Cri LJ 61 (Cal).

5. The tall and what appears to us as the somewhat doctrinaire stand taken on behalf of the petitioners has been seriously pressed before us and, therefore, may well merit the compliment of a detailed rational refutation. Inevitably some of the contentions must revolve around the language of Section 438. Therefore, the relevant part thereof may be noticed at the very outset for facility of reference : -

"(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 Cpurt 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)x x x

(3) If such person is thereafter "arrested without warrant by an officer-in-charge of a police station on such accusation, and is 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 cognisance of such offence decided 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)."

Ere one adverts in detail to the provision aforesaid, it would be apt to consider the matter on principle. On the larger perspective in criminal jurisprudence it seems elementary that the concept of territorial jurisdiction is the inarticulate premise which underlies all references, to a Court by the legislature. Whenever in statute a reference is made to the High Court or the Court of Session or that of the Magistrate, it is inherent in such language that it is a Court having territorial jurisdiction over the offence. This is indeed so implicit and necessary that if it were not to be so, it would have to be repeated ad nauseam in every statute as the High Court having jurisdiction or the Court of Session having jurisdiction or the Magistrate having jurisdiction, etc. The law herein assumes in this context that the reference to the Court is in terms to the Court having territorial jurisdiction.

6. Now this inherent concept of Courts having jurisdiction over specific territory and not beyond it, is indeed essential for the very maintenance of the comity of the Courts. The concept of terriloriality is inherent in the justice system and the more so in the realm of criminal jurisprudence. This aspect may first be noticed from the provisions of Article 214 as originally enacted :--

"214(1). There shall be a High Court for each State.

(2) For the purposes of this Constitution the High Court exercising jurisdiction in relation to any province immediately before the commencement of this Constitution shall be deemed to be the High Court for the corresponding State.

(3) The provisions of this Chapter shall apply to every High Court referred to in this article."

Apparently with the passage of time Clauses (2) and (3) were rendered unnecessary and have been omitted by the Constitution (Seventh Amendment) Act, 1956. It needs no great erudition and indeed the well-known history is that prior to the Constitution the High Courts in the country had been established in particular relation to the territory of each province over which they exercised jurisdiction. Clause (2) aforesaid expressly recognised and reiterated the situation to hold that the High Court exercising jurisdiction in relation to such a province immediately before the commencement of the Constitution would be deemed to be the High Court for the corresponding State. Therefore, the constitutional mandate that the High Court is one for the particular State and not for other States of the Union as well is writ large in the paramount statute itself. This may then be read with the relevant part of Article 225 for emphasis : --

"Subject to the provisions of this Constitution and to the provisions of any law of the appropriate legislature made by virtue of powers conferred on that legislature by this Constitution, the jurisdiction of and the law administered in, any existing High Court,..... shall be the same as immediately before the commencement of this Constitution.
x x x"

Reading Articles 214 and 225 together would leave no manner of doubt that the territorial jurisdiction of the High Court is maintained to be the same as immediately before the commencement of the Constitution subject to any changes made later with regard thereto by the appropriate legislature. Thus, the jurisdiction of the High Courts was clearly rooted to the Provinces earlier and to the corresponding States later.

7. Reference may also instructively be made to Section 3(25) of the General Clauses Act, 1897 and to Section 4(25) of the Bihar and Orissa General Clauses Act, 1917, which read as under :--

Central Act :

"3..... In this Act, and in all Central Acts and Regulations made after the commencement of this Act, unless there is anything repugnant in the subject or context.--
X X X

(25) 'High Court', used with reference to civil proceedings, shall mean the highest Civil Court of Appeal (not including the Supreme Court) in the part of India in which "the Act or Regulation containing the -expression operates;
x x x x"

State Act:

"4..... In all Bihar and Orissa Acts and Bihar Acts, unless there is anything repugnant in the subject or context,--
X X X X

(25) 'High Court' used with reference to civil proceedings, shall mean the highest Civil Court of Appeal in the part of Bihar and Orissa, in which the Act containing the expression operates;
x x x x"

From the above provisions also it would follow that with regard to the jurisdiction of the High Court in civil proceedings it is related to the part of India in which the Act or Regulation containing the expression operates and does not extend to the whole of India. Similarly by the specific provisions of Section 4(25) of the Bihar and Orissa General Clauses Act, the jurisdiction of the Patna High Court will extend to the State of Bihar and not beyond it What would be true for civil proceedings would be indeed more true in the context of criminal jurisprudence. It is manifest from the aforesaid provisions that territoriality of the Courts is the basic rule and extra-territoriality is an exception which is not to be easily assumed.

8. Adverting now to the language of Section 438 (and in particular in the light of the above), it deserves highlighting that both in Sub-section (1) and Sub-section (2) thereof, the deliberate designed phraseology employed is "the High Court" or "the Court of Session". The section does not say "any High Court" or "any Court of Session". To accept the contention of the petitioners would, therefore, involve the substitution of the word 'the' for 'any' at all places where the phraseology of "the High Court" or "the Court of Session" has been employed. Not only would this be impermissible on the settled canons of construction, but, would be doing plain violence to the specific language of this section itself. To my mind, "the High Court" means the Court having jurisdiction over the area where the accusation of having committed a non-bailable offence is made. "The Court of Session" means that limited geographical area within whose limits such a non-bailable offence may have been committed and the accusation therefor arises. These limitations are inherent in the opening part of Section 438 itself. Indeed, this section does not talk of the High Court or the Court of Session in vacuum or in space but only in the context of and with regard to the commission of a non-bailable offence in the particularised geographical area. It is significant that Section 438 deals with somewhat serious crimes and does not extend to any or every offence but to the commission of a non-bailable offence. The locale of such a crime is thus inextricably linked to the Court of Session or the High Court which exercises jurisdiction with regard thereto. Therefore, "the High Court" or "the Court of Session" in Section 438 means such a Court within whose territorial jurisdiction the accusation of having committed a non-bailable offence arises or is made. The apprehension of arrest by such accused is with regard to that particular offence having a particular locale and not generically. The clear mandate of the language of Section 438 and the inherent limitations of territorial jurisdiction cannot be overridden by any high-flown and doctrinaire considerations.

9. Yet again the context and positioning of Section 438 in the Code is itself a clear pointer to such a limitation. The section is laid in Chapter XXXIII making provisions as to bail and bonds. It is preceded by Section 437 providing when a bail can be taken in case of a non-bailable offence by Courts other than High Court or the Court of Session. Clearly enough Section 437 pertains to and provides for the grant of bail by Magistrates having territorial jurisdiction in non-bailable offences. Even the learned counsel for the petitioners did not take the untenable stand that under Section 437 any Magistrate irrespective of the locale of the crime can assume jurisdiction and grant bail in cases of non-bailable offences. Succeeding Section 439 deals with the special power of the High Court or the Court of Session regarding bail in non-bailable offences. It is undeniable that this section visualises the High Court or the Court of Session having jurisdiction over the area of the commission of the crime, and not any High Court or any Court of Session. The proviso to Sub-section (1) of Section 439 in more serious crimes expressly envisages the giving of notice to the Public Prosecutor before granting bail unless for reason to be recorded in writing it is not practicable to give such notice. Obviously such a notice is given to the Public Prosecutor having jurisdiction with regard to the commission of the offence. If that be so, there is no reason whatsoever to construe the identical expression of "the High Court" or "the Court of Session" more widely in Section 438. Conversely if in Section 438 "the High Court" or "the Court of Session" is construed as any High Court or any Court of Session, the same construction would have to be placed on those words in the succeeding Section 439 as well, which would obviously lead to absurd results.

10. It is then well settled that the Code of Criminal Procedure is exhaustive with regard to the matters with which it deals and is to be read as a harmonious whole. Chapter XIII lays down the jurisdiction of the criminal courts in inquiries and trials. The cornerstone of the principle therein is set out in the first Section 177 which is in the terms following : --
" 177. Ordinary place of inquiry and trial. --Every offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed."

It is manifest from the above section and equally from the other provisions of Chapter XIII that the whole concept of jurisdiction for trials and inquiries by criminal courts is the place or the spot of the commission of the crime and not the residence of the accused or any other place where he may choose to flee and may be found. Reference in this connection may also be made to Section 76 and Section 167(2) which are in the terms following : --

76. Person arrested to be brought before Court without delay. -- The police officer or other person executing a warrant of arrest shall (subject to the provisions of Section 71 as to security) without unnecessary delay bring the person arresteed before the Court before which he is required by law to produce such person :

Provided that such delay shall not, in any case, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court."

" 167. Procedure when investigation cannot be completed in twenty-four hours.--
X X X X

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he mayordertheaccused to be forwarded to a Magistrate having such jurisdiction.
X X X X "

The aforesaid provisions highlight the basic rule that offences are to be inquired into and tried in a court having geographical jurisdiction over the locale of crime. Even if the accused is found far beyond the arena of the crime, he has to be brought back before the court having local jurisdiction to try the same. It is not that the accused person's presence would carry the jurisdiction with him to any court where he may fortuitously be present or where he may deliberately have chosen to flee. It seems further manifest that on larger principle wherever the jurisdiction of the criminal court for trial and inquiry of the offence lies, there alone would lie the jurisdiction for grant of bail and equally for anticipatory bail, unless a statute expressly provides otherwise. It seems anomalous to hold that one court would have jurisdiction for the trial of the crime but another for the grant of anticipatory bail therefor.

10A. It seems apt to refer at this particular stage to the contrary judicial view (which would be noticed in some detail hereinafter) that Section 438 does not spell out any limitations. With respect, that is not true. Such a view loses sight of the express terminology employed namely, "the High Court" or "the Court of Session". Equally it misses the pre-condition of the place where the accusation of having committed a non-bailable offence is made, which, in terms, is laid out in the section itself. Such a view further loses sight of the context in which Section 438 is laid in the midst of Sections 437 and 439 and the provisions of Chapter XIII embodying the basic rule that offence shall ordinarily be inquired into and tried by a Court in whose jurisdiction it was committed. It bears repetition that Section 438 is not in a vacuum but is firmly rooted to this four-fold consideration and inherent limitation.

11. Again in the realm of criminal jurisprudence one must recall the hallowed dictum that a criminal Court takes cognizance of the offence and not of individual offenders. This cardinal principle has a long line of authority which was ultimately sanctified by the Final Court in Raghubans Dubey v. State of Bihar, AIR 1967 SC 1167 : (1967 Cri LJ 1081) in holding that once cognizance ha: been taken by the Magistrate, he takes cognizance of the offence and not of the offender. This view has then been consistently followed by the Final Court and later within this jurisdiction has been recently reiterated by the Full Bench in Sk. Latfur Rahman v. The State, 1985'Pat LJR 640 : (1985 Cri LJ 1238). This would also buttrrss the view that jurisdiction of a criminal court is governed by the situs of the commission of offence and not by the shady or evasive movements of the offender. If the latter were to be so, criminal jurisdiction would keep on shifting and be nebulous with the movements of the offender Where there are many offenders for the crime, they may fly to different areas and thus create a chaos of the criminal Courts having jurisdiction for the offence. That is a situation not easy to be countenanced. Applying the larger principle in Raghubans Dubey v. State of Bihar (supra) under Section 438 also, the cognizance is taken of offence and -- to employ its own language -- where the accusation of having committed a non-bailable offence arises. The focal point is the spot of the commission, of the offence and not the flying movements of a fugitive offender.

12. In the alternative, Mr. Braj Kishore Prasad has lowered his sites (sic) a little for contending that the nexus for Section 438 is the residence of the accused person and not the locale of the commission of the offence. The argument again was that the apprehension of arrest arises where a man is or in any case where he is permanently resident and that would confer jurisdiction on the High Court or the Court of Session. In my view, this submission has to be equally rejected. What has been said above with regard the larger principle of the spot of the offence-applies mutatis mutandis to this aspect as well. The residence question herein would be totally irrelevant. It is indeed too slippery a test to merit practical adoption. Domicil and residence are unruly horses and these cannot be easily controlled or tethered. Ticklish issues of where a man is permanently resident or temporarily or momentarily resident would thus arise which are impossible of practical application. As has been noticed in a particular crime there may be 20 or more accused persons residing in different locales or States. Would then the jurisdiction extend because of the fortuitous circumstance of the permanent, temporary or momentary residence of each of the accused or where they may claim to be resident in? It is axiomatic that anticipatory bail is a matter of urgency at the very threshold of the investigation into the crime. It is an immediate relief which brooks no delay. It cannot await an inquiry into something so tenuous as to what and where is the permanent, temporary or momentary residence of the person invoking the Court's jurisdiction. Indeed this is impossible of determination and criminal Courts in such a context have no means for determining where, if at all, each or all of the many accused are permanently or temporarily resident. As would appear to me from Chapter XIII of the Code, the residence of the accused person is wholly irrelevant with regard to the jurisdiction of the criminal Courts for inquiries and trials. Therefore, the slippery test of residence is an irrelevant one in the context of anticipatory bail as well and the only fixed focal point is commission of the offence. What sound criminal jurisprudence focuses on is the spot or the arena of the crime.

13. In fairness to the learned counsel for the petitioners one must notice his reference to Sections 78 and 80 and his particular reliance on the second proviso to Section 81(1) of the Code. At the very outset, it may be noticed that these are provisions for the execution of warrants outside the jurisdiction of the particular court and in particular Section 81 envisages a post-arrest situation and not a pre-arrest one. This distinction has to be kept in mind, and has been authoritatively highlighted by the Final Court to which reference is made hereinafter. However, it appears to me that his reliance on the second proviso to Section 81(1) seems to boomerang on the petitioners' case rather than come to its aid. The releva .t provision is in the following terms : --

"81. Procedure by Magistrate before whom such person arrested is brought-- (1) The Executive Magistrate or District Superintendent of Police or Commissioner of Police shall, if the person arrested appears to be the person intended by the Court which issued the warrant, direct his removal in custody to such Court;
x x x x x

Provided further that if the offence is a non-bailable one, it shall be lawful for the Chief Judicial Magistrate (subject to the provisions of Section 437) or the Sessions Judge, of the district in which the arrest is made on consideration of the information and the documents referred to in Sub-section (2) of Section 78, to release such person on bail."

On behalf of the petitioners it was nought to be argued that the aforesaid proviso conferred a power on a Chief Judicial Magistrate or a Sessions Judge other than the one having jurisdiction over the area of offence to grant bail after considering the information and documents referred to in Sub-section (2) of Section 78. It is significant that under the proviso this can only be done with regard to the warrants of arrest issued under Section 78 and on the basis of documents mandated to be forwarded along with the warrant by Sub-section (2) thereof. This power can, therefore, be exercised only within these narrow parameters. It is plain that such a power arises only by virtue of the express mandate of the law given by the second proviso in the peculiarity of the situation of a warrant of arrest having been executed outside jurisdiction and accompanied by the relevant documents. It had to be conceded that if the second proviso to Section 81(1) did not exist on the statute book then such a power would not vest in the Chief Judicial Magistrate or the Sessions Judge other than the one having jurisdiction. Consequently it is obvious that in the context of Section 438 the law has not chosen to give any such enabling power to courts other than one having jurisdiction over the area, where the accusation of the non-bailable offence has been levelled. That being so, the second proviso to Section 81(1) only highlights that unless an express provision exists, there is no general power in vacuum in every criminal court to assume jurisdiction extra territorially. Equally, the second proviso to Section 81(1) is in the post-arrest context of the accused person. The distinction between pre-arrest bail and post-arrest bail was itself highlighted in Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632 : (1930 Cri LJ 1125). It has, however, been more pointedly summarised by D.A. Desai, J., speaking for the Court in Pokar Ram v. State of Rajasthan. AIR 1985 SC 969 : (1985 Cri LJ 1175) in the following words :-
"The decision of the Constitution Bench in Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 : AIR 1980 SC 1632 : (1980 Cri LJ 1125) clearly lays down that '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 of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest'. Unlike a post-arrest order of bail, it is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. A direction under Section 438 is intended to confer conditional immunity from the touch as envisaged by Section 46(1) or confinement."

14. In fairness to Mr. Lala Kailash Behari Prasad, the learned counsel for the respondent-State, we must notice his persistent emphasis on the territorial jurisdiction of the criminal courts and the rigidity of such a rule as also its necessity in public interest. He assailed the sentimental grounds of the alleged hardship to an accused person for being called upon to go to the Court having territorial jurisdiction over the offence for seeking anticipatory bail as utterly unwarranted. In somewhat picturesque language he pointed out thai if the accused could afford the luxury of committing an offence far away from his place of residence, he cannot avoid the burden of invoking the jurisdiction of the Court where he chose to commit the offence. According to him and, in our view, rightly such chimerical considerations are irrelevant in the context of the commission and trial of offences. It was forcefully and plausibly argued that it is not for an accused person to select jurisdiction for anticipatory bail by being at any place where he may pretend to apprehend his arrest Mr. Lala Kailash Behari Prasad pinpointed that reliance on Sections 78 and 81 of the Code was irrelevant as these pertain to situations after arrest or execution of the warrant. Counsel pointed out that if Section 438 was construed as canvassed on behalf of the petitioners, it would become a paradise for criminals by giving them freedom to choose any and every Court of Session or any and every High Court for the purpose of securing anticipatory bail and if they fail in one then to move on to another ad infinitum.

15. As one adverts to precedent, pride of place must be given to the latist jadgment of the Final Court in Pokar Ram v. State of Rajasthan, AIR 1985 SC 969 : (1985 Cri LJ 1175). Therein in very forceful terms, their Lordships have highlighted the effects of anticipatory bail on the investigation of crime and the limitations within which the power is to be exercised. It has been pointed out that anticipatory bail intrudes in the sphere of investigation of crime and some very compelling circumstances have to be made out for grant of anticipatory bail to persons accused of serious offences. It was observed as under :--

"Anticipatory bail to some extent intrudes in the sphere of investigation of crime and the court must be cautious and circumspect in exercising such power of a discretionary nature." and again --

"Before we conclude this judgment, it must be made distinctly clear that some very compelling circumstances must be made out for granting bail to a person accused of committing murder and that too when the investigation is in progress."

It is manifest from the above that their Lordships have noticed the nexus betwixt anticipatory bail and the investigation of crime, the promptness whereof is a sine qua non of an efficient criminal judicial administration. A matter which intrudes in the sphere of investigation of crime is, therefore, not to be unduly enlarged and extended. If any Court of Session or any High Court is to assume jurisdiction for the purposes of anticipatory bail, its effect on the police investigation into the offence can well be imagined.

16. A reference must inevitably be also made to Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632 : (1980 Cri LJ 1125) which has been relied upon for taking a contrary view. With the deepest respect, however, I fail to see how that judgment is any warrant for the proposition that any Court of Session or High Court other than one having territorial jurisdiction over the commission of the offence can also intrude into the sphere of the grant of anticipatory bail. In Gurbaksh Singh Sibbia's case the offence was alleged to be committed in the State 6f Punjab and the first information report was lodged at Ludhiana. The anticipatory bail was sought in the High Court having jurisdiction over the State of Punjab and the case was heard and determined by the Full Bench in Gurbaksh Singh Sibia v. State of Punjab, AIR 1978 Punj and Har 1 : (1978 Cri LJ 20), to which one of us was a party. Neither the facts nor the observations of their Lordships of the Supreme Court in Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632 : (1980 Cri LJ 1125) can in any way lend credence to the concept of extra territorial jurisdction of the High Court or a Court of Session for the grant of anticipatory bail which is attempted to be canvassed on behalf of the petitioner. In my view, Gurbaksh Singh Sibbia's case, AIR 1980 SC 1632 : (1980 Cri LJ 1125) is not in the least attracted to the issue which falls for adjudication here.

17. One must now turn to precedent taking a contrary view. Reliance on behalf of the petitioner was placed on the judgment of the learned single Judge in Pritam Singh v. State of Punjab, 1980 Cri LJ 1174 (Delhi). A perusal of the brief judgment therein would indicate that the counsel for the parties were somewhat remiss in not adequately canvassing the matter both on principle and precedent. Reference was made in the judgment to Gurbaksh Singh Sibbia's case (supra) which as already noticed above, is not attracted to the situation. The very issue at stake, namely, whether mere apprehension of arrest by the accused or his residence would give jurisdiction was assumed in the petitioner's favour. Attention was focused more on the point whether interim bail having been granted, the same could be confirmed. With the greatest respect and for the reasons recorded above, the judgment does not lay down the law correctly and I would regretfully record my dissent therefrom.

18. Undoubtedly, the Calcutta High Court seems to have tilted for the contrary view, and basic reliance on behalf of the petitioner was placed on the Division Bench judgment in B. R. Sinha v. The State, 1982 Cri LJ 61. With the greatest respect, however, I must record my inability to agree with the same. It would appear that the learned Judges chose to follow some of the earlier unreported single Bench and Division Bench judgments of the Calcutta High Court in which the power had been exercised without any deep seated consideration of the issues involved. Reliance was sought to be placed herein also on Gurbaksh Singh Sibbia's case, AIR 1980 SC 1632 : (1980 Cri LJ 1125) which, as I have already demonstrated above, is hardly called for. Equally significant it is to note that the Bench noticed the arguments of the Public Prosecutor for the State and, in particular, his reliance on Articles 214 and 225 but, without much discussion, has brushed the same aside. Further they were compelled to record that there was considerable substance in the submission made on behalf of the State but, without in any way repelling the same they held as dictum that they thought an order for anticipatory bail could be granted without notice to the Public Prosecutor or affording him any opportunity to get the necessary instructions from the investigating agency. The various significant aspects which have been discussed in the earlier part of this judgment were not at all adverted to. The attempt to assume jurisdiction extra-territonally over areas beyond the geographical limits of the State for which the High Court is constituted has recently been severely castigated by their Lordships in Samarias Trading Co. Pvt. Ltd. v. S. Samuel, AIR 1985 SC 61, wherein it was observed as follows :
"In fact, we have come across instances in the past where the Calcutta High Court had exercised jurisdiction in matters in which no part of the cause of action arose within its jurisdiction, a situation which could surely not have arisen if a written and not an oral application had been made."

With the deepest deference I regret my inability to subscribe to the views of the Calcutta High Court typified in B. R. Sinha v. The State (1982 Cri LJ 61) and feel compelled to record my dissent therefrom.

19. Reference must also be made to the judgment of the learned single Judge of the Karnataka High Court in Dr. L. R. Naidu v. State of Karnataka. 1984 Cri LJ 757.' Therein an order of anticipatory bail of limited duration was made with a direction to the petitioner to approach the appropriate Court in Kerala State within twenty days from the date of his arrest. Even though the order was of a limited nature in essence, the observations in this judgment tend to an assumption of jurisdiction under Section 438 over commission of crime outside the jurisdiction of a High Court, on the alleged ground of the residence of the accused person. The learned single Judge arrived at that conclusion primarily following the Delhi High Court in Pritam Singh v. State of Punjab (1980 Cri LJ 1174) and the Calcutta High Court in B. R. Sinha v. The State (1982 Cri LJ 61) which have already been discussed and dissented from above. Reliance was sought to be placed on Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632 : (1980 Cri LJ 1125) which, as pointed out earlier, is not attracted to the issue. The larger ramifications of the question, which have been discussed in the earlier part of this judgment, were not considered or adjudicated upon. The learned Judge was compelled to himself notice as under :--
"The learned State Public Prosecutor, in the instant case, was right in his submission that without instructions it may not be possible for the Public Prosecutor, not in the know of things, to make his submissions in the matter. And to direct the local Public Prosecutor to obtain instructions from the investigating authority concerned stationed faraway in another State may not, in many cases, serve any useful purpose and may put all concerned, in some cases, to great inconvenience also."

Despite noticing the above, and without adequately meeting the preliminary objection, the learned Judge proceeded to make an order of anticipatory bail of limited duration as noticed above. It would appear that he was equally influenced greatly by the fact that the petitioner was a man of some status being a medical practitioner and was likely to suffer a great deal of hardship if he was arrested by the Cannanore police and taken to their custody as this would dislocate his work, This again appears to be a typical instance of a hard case making bad law. Individual and peculiar considerstions cannot come in for the purposes of basic issues of the jurisdiction or otherwise of a Court of law. With the deepest respect I must, therefore, dissent from the view of the learned single Judge of the Karnataka High Court in Dr. L. R. Naidu v. State of Karnataka (1984 Cri LJ 757).

20. Coming now to the judgments of this Court, reference may first be made to the very wide-ranging observations of the learned single Judge in Bhola Lal v. State of Bihar, 1984 Pat LJR 450. Therein it has been said in categoric terms that an application for anticipatory bail can be entertained irrespective of the place where the case is registered or the offence is committed, prpv,ded that the Court is satisfied that the petitioner has got a reasonable apprehension and he lives somewhere or even intends to live somewhere within its territorial jurisdiction. With the (sic)eepest respect, I find myself wholly unable to concur with this line of reasoning for considerations exhaustively delineated earlier, Basic reliance for the view taken again was on the Delhi High Court's judgment in Pritam Singh v. State of Punjab (1980 Cri LJ 11741 and the line of decision of the Calcir'a High Court in B. R. Sinha v. The State (1982 Cri LJ 61) which have already been considered and dissented from. The learned Judge otherwise viewed the power of arrest by the police having jurisdiction as the first cry of invasion of the right of liberty. With the deepest respect, the lawfully vested power of arrest with the police for cognizable and non-bailable offences is not a hostile invasion of liberty but a legal and mandatory investigational process in accord with the due process of law spelt out in the exhaustive Code of Criminal Procedure. A perusal of the judgment would indicate that the learned counsel for the parties were remiss in not canvassing the issue in all its ramifications before the Bench. With the deepest deference, the judgment does not lay down the law correctly and is hereby overruled.

21. Equally one must advert to the Division Bench judgment in Madan Mohan Choudhary v. State of Bihar, 1984 BBCJ 648 ; (1985 Cri LJ 1754). Therein the Court had declined to give relief whilst holding itself that it was advisable that the original Court where the caso is pending should adjudicate the prayer for the grant of bail and no case has been made out for the grant of anticipatory bail. Nevertheless it proceeded to hold that either of the Benches at Patna or Ranchi would have jurisdiction to entertain an application for anticipatory bail irrespective of the locale of the offence. In arriving at this conclusion the 3ench relied basically on B. R. Sinha v. The State and Pritam Singh v. State of Punjab which have already been dissented from. It was observed asa dictum that the striking point was that there was absolutely no indication with regard to any limitation so far as jurisdiction of a particular Court is concerned under Section 438 of the Code. It has already been shown above that this is not so. For the detailed reasons recorded, this judgment also does not lay down the law correctly and is hereby overruled.

22. Lastly, apart from principle and precedent, the anomalous results that necessarily flow from the construction, that Section 438 confers a jurisdiction on any Court of Session or any High Court to grant bail, cannot be lost sight of. It is a well settled canon that even where two interpretations are possible, the one which would lead to mischievous and anomalous results, must be avoided. To my mind, the stand canvassed on behalf of the petitioner cannot but result in a judicial chaos and an inherent conflict betwixt the comity of Courts. It would necessarily involve that with regard to the grant of anticipatory bail and in particular where there are many accused persons in a case, numerous High Courts and innumerable Courts of Session may exercise jurisdiction with regard thereto. This would inevitably and necessarily lead to contradictory orders and overlapping jurisdictions. The practical difficulties of assuming jurisdiction and considering and granting anticipatory bail at Ernakulam for an offence allegedly committed in Srinagar in a country as vast as ours, are too patent to need elaboration. In Gurbaksh Singh Sibbia's case AIR 1980 SC 1632 :(1980 Cri LJ 1125) their Lordships without being inflexible had directed that notice should issue to the Public Prosecutor or the Government Advocate forth-with and the question of bail should be re-examined in the light of respective contentions of the parties under Section 438. How is a High Court or a Court of Session in one State to issue or demand comeliance with a notice against the Public Prosecutor or the Government Advocate of another faraway State? Whether such a Court would have authority to do so or the investigating agencies of another State are bound to comply with are the moot questions. The difficulty and indeed the futility of such was rightly noticed in Dr. L.R. Naidu v. State of Karnataka, 1984 Cri IJ 757 (Kant). It has to be recalled that the grant or refusal of an anticipatory bail is a matter of urgency which does not brook of long delay. Equally one must be reminded that the provisions for anticipatory bail do not necessarily involve as a pre-requisite a surrender to custody. Therefore, a fugitive offender may well move from court to court ad infinitum and if he fails in one jurisdiction then on to another until he secures relief in the last. It seems plain that somewhat curious and anomalous results which necessarily flow from the stand canvassed on behalf of the petitioners would be an added factor lor not subscribing to such a view.

23. To finally conclude on this aspect the answer to the question posed at the outset is rendered in the negative and it is held that, 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.

24. Once it is held as above, the subsidiary issue whether the Ranchi Bench of this High Court would have jurisdiction in the present case would be in a narrow compass. It is a common ground that the said Bench was constituted by the High Court at Patna (Establishment of a Permanent Bench at Ranchi Act 1976). Section 2 of the said Act is in the following terms : --

"There shall be established a Permanent Bench of the High Court of Patna at Ranchi, and such Judges of the High Court at Patna, being not less than three in number, as the Chief Justice of that High Court may, from time to time, nominate, shall sit at Ranchi in order to exercise that jurisdiction and power for the time being vested in that High Court in respect of cases arising in the districts of Hazaribagh, Giridih, Dhanbad, Ranchi, Palamau and Singhbhum :

Provided that the Chief Justice of that High Court may, in his discretion, order that any cases or class of cases arising in any such district shall be heard at Patna."

After the establishment of Permanent Bench at Ranchi new rules were framed by the Patna High Court in respect of filing and hearing of cases relating to the districts within the jurisdiction of the Ranchi Bench (C. S. No. II dated 25-3-1976). Rule No. 3, which is relevant, is as follows : --

"All cases arising in the districts of Hazaribagh, Giridih, Dhanbad, Ranchi, Palarnau and Singhbhum will be filed and heard at Ranchi :

Provided that the Chief Justice of the High Court may in his discretion, order that any case arising in such district shall be heard at Patna."

It necessarily follows from the aforesaid Section 2 of the Ranchi Bench Act and Rule 3 of the Rules of the Patna High Court that after the establishment of a Permanent Bench at Ranchi, that Bench alone has now to exercise jurisdiction and power for the time being vested in the Patia High Court arising out of cases in the districts of Hazaribagh. Giridih, Dhanbad, Ranchi, Palamau and Singhbhum. Learned counsel for the State had rightly contended that if the parties were allowed to whimsically select the jurisdiction from which Bench of the High Court they would seek redress, it would violate both the letter and spirit of the statutory provisions. Further, it would render the proviso to Section 2 of the Ranchi Bench . Act as also the proviso to Rule 3 wholly nugatory.

25. In the present case it is not in dispute that the case against the two petitioners has been registered in Jhinkpani police station which falls in the district of Singhbhum. The matter thus comes squarely within the jurisdiction of the Ranchi Bench. The preliminary objection on behalf of the opposite party State against the very maintainability of this criminal miscellaneous petition at Patna, therefore, must be upheld. This petition is consequently dismissed and the petitioners are relegated to seek their remedy in the appropriate forum of the Ranchi Bench, if so advised.

26. Before parting with this judgment, it may be noticed that the teamed counsel for the petitioners had stated that he did not wish to press the case of petitioner No. 2 Prasant Majumdar.

N. P. Singh, J.

27. I agree. S.N. Jha, J.

28. I agree.

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