That apart, the High Court of Jammu and Kashmir
not having the appellate powers under Chap. XXXl
nor the revisional powers under Chap, XXXI of the
Code, and nor even the powers of superintendence
and control Under Section 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 Stations which are situated outside
the territory of the State. Law will not, therefore,
countenance a situation where an order of the High
Court may be flouted by a Court lower than the High
Court or for that matter by an officer-in-charge of a
police station with impunity. If the interpretation
sought 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
station, 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 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. {Para 5}
7. On the basis of the aforequoted reasoning, the
Court came to the conclusion that the High Court has no
jurisdiction to grant anticipatory bail to a person against
whom a case has been registered with a police station
which is situated outside the local limits of its
jurisdiction under the Code.
8. From the aforequoted enunciation of law on the
subject, it is clear that this Court does not have
jurisdiction to entertain and decide the bail application
which relates to an FIR that has been registered beyond
the local limits of this Court even though the
accused/petitioner may be residing within the
jurisdiction of this Court.
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Bail App. No.65/2022
NASIR AHMAD WANI & ORS Vs POLICE STATION NEEMUCH & ORS.
CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE
Dated: 03.06.2022.
1. The petitioners have moved this application under
Section 438 of the Cr. P. C seeking bail in anticipation of
arrest in FIR No.238 dated 25.04.2022 registered with
Police Station, Neemuch, Madhya Pradesh.
2. It is averred in the application that the petitioners
happen to be the in-laws and husband of the
complainant. It is stated that the marriage between
petitioner No.l and the complainant has taken place in
the year 2013 and out of this marriage, one son has been
born. It is submitted that the respondent No.2 has lodged
an FIR in Madhya Pradesh against the petitioners
alleging commission of offences under Section 498-A of
the Cr. P. C. It is also contended that under Section 79 of
the Cr. P. C, warrants have to be executed by a police
station located outside the jurisdiction of a State through
the local police station and, as such, this Court has
jurisdiction to entertain the present application.
3. I have heard learned counsel for the petitioners and
perused the material on record.
4. It has been contended by learned counsel for the
petitioners that the petitioners are entitled to grant of
anticipatory bail as the Supreme Court has time and
again emphasised that in case of matrimonial offences,
arrest of an accused should not be made as a matter of
course. Learned counsel, in support of his contention,
has relied upon the judgment of the Supreme Court in
the case of Bhadresh Bipinbhai Sheth vs. State of
Gujarat & another, 2015 SAR (Criminal) 1179, as also
the judgment of Gujarat High Court in the case of Abdul
Razakmiya Ahemad Gajiwala, 2022(1) Bom. C. R.
(Cri.) 35.
5. In the instant case, the petitioners are seeking bail
in an FIR which has been registered beyond the
jurisdiction of this Court, inasmuch as the FIR has been
registered in the State of Madhya Pradesh. The question
that arises for consideration is whether this Court, in
exercise of its powers under Section 438 of the Cr. P. C,
is vested with jurisdiction to grant bail in a case that has
been registered beyond its local limits of jurisdiction.
6. The above issue came up for consideration before
this Court in the case of Mohan Singh Parihar vs.
Commission of Police and Ors. 1982 CriLJ 1182. This
Court, after noticing the provisions contained in Section
497-A of the Jammu and Kashmir Cr. P. C, which is in
pari materia with Section 438 of the Central Cr. P. C, as
also the provisions contained in Section 6 of the J&K Cr.
P. C, which is in pari materia with Section 6 of the
Central Cr. P. C, observed as under:
“……….A Sessions Judge, in terms of Section 9,
exercises his jurisdiction under the Code within the
limits of the Sessions Division, to be known as the
district, for which he is appointed as a Sessions Judge.
Consequently, a Sessions Judge who has ceased to be
a Sessions Judge of one district, and has not become
the Sessions Judge of another district, cannot exercise
the powers of Sessions Judge. These powers are
always relatable to a territory, and cannot be
exercised in isolation thereof. Section 10 says that the
Government shall appoint District. Magistrates, and
the High Court the Chief Judicial Magistrate for such
districts, who shall exercise their powers as such
Magistrates within the territorial limits of their
respective districts. The other Executive and Judicial
Magistrates, in terms of Section 12 shall be appointed
for such districts, but the local areas in the district
within which they shall exercise their powers
under the Code, shall have to be denned by the
Government, in so far as the Executive Magistrates
are concerned, and by the High Court, in so far as the
Judicial Magistrates are concerned. Section
28 provides that subject to the other provisions of the
Code, any offence under the Ranbir Penal Code may
be tried by the High Court, or by the Court of Session,
or by any other Court by which such offence is shown
to be triable in the 8th Column of the Second
Schedule. From a careful reading of this section it
clearly transpires that whereas the jurisdiction of
every other criminal Court to try an offence is
restricted by the 8th Column of the Second Schedule,
the jurisdiction of the High Court and the Court of
Session is not so limited and these Courts are
competent to try all offences, provided the cases are
properly brought to these Courts for their trial. High
Court has been defined by Clause (f) of Section 4 to
mean "the highest Court of criminal appeal and
revision in the Jammu and Kashmir State.
4. A combined reading of these sections would thus
indicate that whereas the High Court will exercise its
powers under the Code throughout the territory of
the State of Jammu and Kashmir, the Sessions Judge
and other Magistrates will exercise their powers
within their defined areas in the territory of the State.
It further follows that none of these Courts shall
exercise any power conferred on it, including the
power to grant anticipatory bail under Section 497-A,
at any place outside the territorial limits of the State
of Jammu and Kashmir.
5. That apart, the High Court of Jammu and Kashmir
not having the appellate powers under Chap. XXXl
nor the revisional powers under Chap, XXXI of the
Code, and nor even the powers of superintendence
and control Under Section 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 Stations which are situated outside
the territory of the State. Law will not, therefore,
countenance a situation where an order of the High
Court may be flouted by a Court lower than the High
Court or for that matter by an officer-in-charge of a
police station with impunity. If the interpretation
sought 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
station, 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 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.
6. The same conclusion is bound to follow, if the
problem is approached from another angle. Section
496 of the Code provides that a person accused of a
bailable offence shall be released on bail when he is
arrested by the police, or appears or is brought
before a Court, provided he is prepared to give
bail. Section 497 which deals with non-bailable
offences, provides that a person accused of a nonbailable
offence, other than the one punishable with
death or imprisonment for life, if he is arrested by the
police, or appears or is brought before a Court, may
also be released on bail by such Court. The expression
"a Court" occurring in both these sections cannot
mean and include any other, whether within or
outside the State of Jammu and Kashmir, but must
mean a Court competent to try or commit the
accused for trial, for the contrary interpretation to be
placed upon it is bound to bring Section 497, into
conflict with Section 167 of the Code, in particular, to
Sub-section (2) thereof. Sub-section (2) of Section
167 reads as under:
(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 authorise the
detention of the accused in such custody as
such Magistrate thinks fit, for a term not
exceeding fifteen days in the whole. If he has
not jurisdiction to try the case or commit it for
trial and considers further detention
unnecessary, he may order the accused to be
forwarded to a Magistrate having such
jurisdiction. Provided that:
(a) the Magistrate may authorise detention of
the accused person, otherwise than in custody
of the police, beyond the period of fifteen days
if he is satisfied that adequate grounds exist
for doing so but no magistrate shall authorise
the detention of the accused person in custody
under this section for a total period exceeding
sixty days and on the expiry of the said period
of sixty days the accused person shall be
released on bail if he is prepared to and does
furnish bail, and every person released on bail
under this section shall be deemed to be so
released under the provisions of Chapter XXXIX
for the purpose of that Chapter;
(b) No Magistrate shall authorise detention in
any custody under this section unless the
accused is produced before him:
(c) No Magistrate of the second class not
specially empowered in this behalf by the
Government or the High Court, as the case
may be, shall authorise detention in the
custody of the police.
7. On its plain language, where further detention of
the accused in police custody is not considered
necessary by the Magistrate before whom the
accused is produced for remand, he shall not release
him on bail, unless he has the power to try or commit
him for trial, Such a Magistrate may, however,
release him on bail in exercise of his powers
under Section 497, if "a Court" of which this section
speaks, were to mean and include any Court. Section
497 has, therefore, to be read along with Section
167 to find out the amplitude of the expression "a
Court" occurring in it. On the parity of the reasoning,
the High Court and a Court of Session of
which Section 497-A speak, must also mean the High
Court and the Court of Session competent to try the
accused seeking enlargement on bail..
7. On the basis of the aforequoted reasoning, the
Court came to the conclusion that the High Court has no
jurisdiction to grant anticipatory bail to a person against
whom a case has been registered with a police station
which is situated outside the local limits of its
jurisdiction under the Code.
8. From the aforequoted enunciation of law on the
subject, it is clear that this Court does not have
jurisdiction to entertain and decide the bail application
which relates to an FIR that has been registered beyond
the local limits of this Court even though the
accused/petitioner may be residing within the
jurisdiction of this Court.
9. The petitioners in the instant case are not seeking
transit bail but are seeking bail in anticipation of their
arrest on a permanent basis, regarding which this Court
lacks jurisdiction in view of the ratio laid down in the
aforequoted judgment.
10. For the foregoing reasons, the petition is held to be
not maintainable and the same is dismissed accordingly.
(Sanjay Dhar)
Judge
Srinagar,
03.06.2022
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