In the decision Priya Indoria v. State of Karnataka

STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 THE STATION HOUSE OFFICER, KADAKKAL POLICE STATION, KADAKKAL, KOLLAM, PIN - 691536 THE STATION HOUSE OFFICER, GACHIBOWLI POLICE STATION, GACHIBOWLI, CYBERABAD, HYDERABAD, TELANGANA, PIN - 500032 OTHER PRESENT: SR.PP-SRI.VIPIN NARAYAN THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON

24.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: B.A.No.10065 of 2023 2 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure filed by the sole accused in Crime No.1088 of 2023 of Gachibowli Police Station, Hyderabad, Telangana, registered under Sections 376(2)(n) and 506 of the Indian Penal Code.

2. The prosecution allegation is that, in August 2021, the petitioner who belongs to Kollam District, Kerala State, sexually assaulted and committed rape on the victim at Hyderabad, who is a resident of Hyderabad, when he went there in connection with a film project.

3. Though notice was sent to the third respondent Station House Officer, Gachibowli Police Station, Cyberabad, Hyderabad, Telangana, there was no response from his part. Learned Public Prosecutor also did not get any instructions from the third respondent. The copy of FIR and FIS are also not made available by the third respondent inspite of service of notice. B.A.No.10065 of 2023 3

4. Heard learned counsel for the petitioner and learned Public Prosecutor.

5. Learned Public Prosecutor would submit that, the offence was committed in Hyderabad, and hence, an anticipatory bail cannot be granted from this Court.

6. Learned counsel for the petitioner would submit that, he was an Associate Director in the Malayalam Film Industry, and he went to Hyderabad in August 2021, and there he got acquainted with the defacto complainant lady aged 35 years, who was married and was having a girl child. According to the petitioner, she was demanding money from him, and since he was not ready to heed to her demands, a false complaint was filed against him.

7. The petitioner is a permanent resident of Kerala State at Kadakkal in Kollam District, and learned counsel for the petitioner would submit that, he is apprehending arrest by Gachibowli Police in Crime No.1088 of 2023. Learned counsel would submit that, on

19.01.2024, Police from Hyderabad reached the house of the petitioner to arrest him, but because of the interim B.A.No.10065 of 2023 4 order passed by this Court, they went back without arresting him. So, he is seeking a transit bail for enabling him to appear before the jurisdictional court to apply for bail.

8. In the decision Priya Indoria v. State of Karnataka; [2023 KHC 6997], the Apex Court laid down the law regarding the relief of limited transit anticipatory bail/interim protection order, in a case where FIR is not filed in the territorial jurisdiction of the District or State in which the accused is residing.

9. The Apex Court in Priya Indoria’s case cited supra held that for 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 the Code of Criminal Procedure in the interest of justice, with respect to an FIR registered outside the territorial limits of the said Court. Paragraphs 36 and 37 of the judgment in Priya Indoria’s case (supra) read thus; B.A.No.10065 of 2023 5 “36. 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 S.438 of Cr.P.C. 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 S.438 of Cr.P.C. (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.A.No.10065 of 2023 6 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.

37. It would be impossible to fully account for all exigent circumstances in which an order of extra territorial anticipatory bail may be imminently essential to safeguard the fundamental rights of the applicant. We reiterate that such power to grant extra – territorial anticipatory bail should be exercised in exceptional and compelling circumstances only which means where, denying transit anticipatory bail or interim protection to enable the applicant to make an application under S.438 of Cr.P.C. before a Court of competent jurisdiction would cause irremediable and irreversible prejudice to the applicant. The Court, while considering such an application for extra – territorial anticipatory bail, in case it deems fit may grant interim protection instead for a fixed period and direct the applicant to make an application before a Court of competent jurisdiction.”

10. Here, the petitioner, who is residing in Kerala, is apprehending arrest by Gachibowli Police, Hyderabad, Telangana. Substantiating his apprehension Gachibowli Police reached his house on 19.01.2024 to arrest him. Notice was issued to the third respondent SHO, Gachibowli Police Station, but, he has not turned up, and no instructions whatsoever has been given to the learned B.A.No.10065 of 2023 7 Public Prosecutor. In this circumstance, the petitioner is apprehending arrest and torture at the hands of Gachibowli Police. Since the petitioner is apprehending arrest by Gachibowli Police, and now he is staying in Kerala, this Court is inclined to grant an interim protection order to the petitioner on the following terms; The petitioner shall make an application for bail before the competent Court in Hyderabad Telangana State on or before 12.03.2024. Till 12.03.2024, he shall not be arrested by the third respondent in Crime No.1088 of 2023 of Gachibowli Police Station. Sd/- SOPHY THOMAS JUDGE