This article has been written by Jeeni Thirumalanadha Siva Seshu, a student of pursuing Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho.
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Bail is a well-established concept in Criminal Procedure Code and even a layman is aware of it. Equally, almost everyone most frequently uses the word anticipatory bail. According to 41st law commission report (1969) recommendations, the “Anticipatory Bail” provision was included in Criminal Procedure Code, 1973 in order to protect the personal liberty of individuals in the matters of arbitrary violence.
The word “anticipatory bail” is a concept of bail in the criminal Procedure code, 1973 (under section 438) where any person believes that he/she may be arrested for a non-bailable offence, can apply to the High Court or the Court of Sessions for anticipatory bail i.e. in the event of arrest he or she will be released on bail provided that the provisions of the code are satisfied and no obstructions are created on the path to justice.
However, in recent past, the terms like “transit bail” or “transit anticipatory bail” are the same and more often than not same and used interchangeably. This new coin took nation’s attention in ‘toolkit’ case. Mr.Shantanu Muluk who ought to arrest by the Delhi Police in connection with the toolkit case granted ten days transit anticipatory bail by the Bombay High Court. Adv. Nikita Jacob a Mumbai based lawyer was also granted three weeks transit anticipatory bail in the same case.
In this article, efforts are taken to explain the concept of “Transit Anticipatory Bail” in the Indian Judiciary System.
What is transit anticipatory bail?
The word “transit” means is an act of movement from one place to another. A “transit bail” is a bail granted by a Court, irrespective of jurisdiction over the place where offence was committed. In the same way a “transit anticipatory bail” whenin the person is apprehending arrest by police officials of another State other than the State where he/she is presently resides. It is majorly in relation to anticipatory bail.
Illustration: – “X” is the resident of Delhi and has a reason to believe that he may be arrested on an accusation in a case at Andhra Pradesh. X can apply for transit anticipatory bail in Delhi Court though the Jurisdiction is at Andhra Pradesh court. In normal circumstances X have to travel all along to Andhra Pradesh to apply for bail as Andhra Pradesh Court is empowered to grant bail to X. Thus, the local courts can grant the transit anticipatory bail to protect the accused temporarily from being arrest until accused approaches the jurisdictional court for bail.
The word “transit anticipatory bail” is not defined in Criminal procedure Code or for that matter in any other law in force in India. However, the roots of transit anticipatory bail concept are found under Criminal Procedure Code. This concept of transit anticipatory bail is not a codified law, but has its significance in judicial practice and legal precedent. This concept is a “judge made law” that is the reason we cannot find any provisions relating to this concept in criminal Procedure Code. In Indian legal system, the precedent is also binding in the judgments.
However, the fundamental right of the arrestee which is conferred by the constitution of India under Article 22 and the measures in compliance with provisions (Section 41-A to 41-D) of Criminal Procedure Code, 1973 are mandatorily followed.
When can a person apply for “transit anticipatory bail”?
Since the question of personal liberty is involved, when a person is apprehending arrest by a state police other than his/her place of residence, he/she can approach the nearest competent Court for a transit anticipatory bail or transit bail, though the court does not have proper jurisdiction. This temporary protection from arrest allows the applicant to approach the appropriate court for anticipatory bail where the case is registered.
What if the applicant absconded or misusing the liberties of transit anticipatory bail?
Though there is no specific provision in Criminal Procedure Code, 1973 for transit anticipatory bail, but in general the provisions under section 438 of Criminal Procedure Code, 1973 will be followed for transit anticipatory bail as-well. According to Section 438 of Criminal Procedure Code, 1973 the bail can be granted by the High Court or the Court of Sessions to a person apprehending arrest. However, there are certain factors that should be fulfilled to grant an anticipatory bail by the Court. They are following:
Section 438 1(i) The court must examine the nature and gravity of the offense.
(ii) The applicant must not be found previously convicted and underwent imprisonment.
(iii) The applicant must not abscond or miss led the court.
(iv) The accusation should not be implicated on the applicant with an object to defame his/her reputation.
In addition to the above, there are certain conditions that should be followed else, which amounts to Contempt of Court and the anticipatory bail shall be cancelled by the Court. The following are the main conditions it applies to transit bail also:
- The applicant should be available to the interrogation whenever required by the police officer.
- The applicant directly or indirectly should not influence the person acquainted with the facts of the accusation against him.
- The applicant shall not leave India without the prior permission of Court.
- Any such other conditions based on the case the Court may impose on the applicant of anticipatory bail.
Judicial Significance on Transit Anticipatory Bail
The law on grant of transit anticipatory bail is a “judicial interpreted law” the following are some of the important judgments laying down its principles.
Apprehension of arrest is the key factor for grant of transit anticipatory bail
The Bombay high Court (Aurangabad Bench) in the case of “Shantanu Shivlal Muluk vs State of Maharashtra, 2021”, granted transit anticipatory bail to the applicant (Muluk) for 10 days. In this case, the Hon’ble Court agreed with the applicant Council “apprehension of arrest is the key factor in such applications for transit anticipatory bail”.
The Court observed in that case “The only fact that is required to be considered as to whether the applicant can be granted liberty by way of transit bail to approach to the competent authority for seeking appropriate relief.” The applicant Council further stated that the Hon’ble Apex Court had also mentioned in catena of judgments that filing of copy of the FIR is not mandatory.
The Karnataka High Court, while granting bail to Republic TV COO Priya Mukherjee in “Priya Mukherjee v State of Karnataka” case, observed, “When personal liberty of a person is under threat and stake, there is an apprehension of arrest, the petitioner can seek relief before the Court invoking Section 438 of Criminal Procedure Code, 1973”.
Transit anticipatory bail can only be granted for a limited period
In the case of “Ku.Sabinaz vs State of Maharashtra, 2019”, the Hon’ble High Court of Madhya Pradesh Division Bench has observed “The anticipatory bail can be granted in cases arising beyond the jurisdiction of the Court having invested with the powers of grant of anticipatory bail. Such anticipatory bail should normally be granted only for a limited period specified therein if he so desires and thereby the Court granting anticipatory bail should leave it to the regular Court to deal with the matter after expiry of the duration.” Thus, the transit anticipatory bail shall only be granted for a limited period of time till the reach of competent Court.
The transit anticipatory bail applicant must be a bona-fide resident within its jurisdiction
In “Honey Preet Insan v. State & others 2017”, Though Honey Preet Singh is the resident of Haryana but applied for transit anticipatory bail in Delhi high Court. The Delhi High Court rejected the application, as Honey Preet is not a bonafide resident of Delhi by the following observation:
“Whenever an application for anticipatory bail is made before a court, where an FIR has been lodged elsewhere i.e. outside the territorial jurisdiction of that court, the court is duty bound to consider whether the applicant is a regular or bona fide resident of a place within the local limits of that Court and is not a camouflage to evade the process of law. If the court is not satisfied on this aspect, the application deserves to be rejected without going into the merits of the case.”
Grant of transit anticipatory bail in grave offences by courts
The High Court of Meghalaya in this “Shri. Akash Gupth vs State of Meghalaya, 2021” case, an FIR was filed against Shri Akash Gupta under section 498-A, 323, 504, 506 of Indian Penal Code ain the State of Uttar Pradesh by his wife. The applicant Akash Gupta resides in Meghalaya and he applied for transit anticipatory bail in Meghalaya High Court. The Hon’ble High Court while granting transit anticipatory bail has referred the Case of “N.K Nayar & others v. State of Maharashtra” and stated that “if arrest is likely to be effected within the jurisdiction of a Court, the concerned person should have the remedy of applying the anticipatory bail in that court though the offence might have been committed in other state.”
The Delhi High Court in “Suraj Pal v. Vijay Chauhan” observed that nature and gravity of offence must be considered while granting transit bail.
In this way in case of serious offences based on the nature and the circumstances of the case and the gravity of the offence, the High Courts of different states have laid their principals in granting transit anticipatory bail rather applying blanket order.
As transit anticipatory bail is mostly judicially interpreted law, according to the facts and circumstances of each case the High Court’s has made their observations, as there is no codified law to follow in every case.
However, the Bombay High Court in “Shantanu Muluk v State of Maharashtra” case has referred “Sandeep Sunilkumar Lahoriya v. Jawahar Chelaram Bijlani” case in which the Hon’ble Supreme Court has passed subsequent order dated 01.08.2013 and opined that the Supreme Court has left the question of law open in dealing transit Anticipatory bail.
The Courts must consider bona fide grounds while granting transit anticipatory bail and ensure that no interruption done for the process of investigation by the applicant/accused. Finally, the transit anticipatory bail is granted strictly for limited period in order to give opportunity to the accused to go to proper jurisdiction to get the bail.
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