This article is written by Abhishek Chaudhary Attri, from UPES, School of Law, Dehradun. The author has critically analyzed the procedure and provisions related to the Transit Anticipatory Bail.
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In the recent development of the farmer’s protest, a toolkit surfaced in support of the farmers’ protests which was an online document, several activists were linked to the toolkit were arrested including Disha Ravi and Nikita Jacob, from various states across the country and were accused of producing and disseminating an action plan that led to violence during the farmers’ protest. On February 17 the Bombay high court gave the activist Nikita Jacob a three-week transit anticipatory bail so that the accused can take part in proceedings in Delhi without being arrested.
Referring to the meaning of transit anticipatory bail
Bail is an important concept present in the code of criminal procedure which provides an arrested person with an option of liberty in order to not be detained. The bail can be pleaded during the proceedings after the individual is arrested or in the case of anticipation of an arrest by the police in case of a non-bailable offence.
The transit anticipatory bail is however a concept that falls under the ambit of anticipatory bail. The anticipatory bail came into existence due to two reasons. one being the weak oversight of the judiciary on the arresting powers of the police. As the officers had to be subjectively satisfied that the arrest powers were used as they were intended to and hardly had to suffer any sanctions in case there was an arbitrary arrest. The other reason was the political influence over the police, as politicians used the arresting powers of the police to put their rivals behind bars and gain the moral support of the public, especially when done at a specific time like a few days before elections became an unethical yet effective tool. In 1973, the provision of anticipatory bail was enacted under section 438 of the CrPC.
The term transit here stands for the action of passing through a jurisdiction. A transit anticipatory bail is granted to someone when they are apprehended to be arrested in a different jurisdiction to the jurisdiction the suit has been filed against them.
Throwing light upon the statutory relevance of transit anticipatory bail
When the concept of transit anticipatory bail is discussed it refers to a person seeking anticipatory bail from one jurisdiction where he/she is apprehensive of being arrested by the police officers to a court of another jurisdiction where the proceedings shall take place.
Transit anticipatory bail is a remedy provided against a transit remand order. A transit remand order is a permit by the judicial magistrate of a state given to the police to arrest the person in a different state. This change in the jurisdiction of high courts requires a permit. The concept of transit anticipatory bail however is not codified under the code of civil procedure, rather it is an example of a precedent or a judge-made law.
It has come into existence through judicial practise and legal precedent. It is binding in nature, thus limiting the arrest powers of the police. The person apprehending such an arrest has to reach the nearest high court and apply for the transit anticipatory bail application in order to travel to the other state where the suit is filed, without being arrested by the police. The court then may grant the transit anticipatory bail to the person.
In the case of HoneyPreet Insan v. State it was held that when it comes to the cases where the person is a bona fide resident of the place and falls within the ambit of territorial jurisdiction of the court where the accused is being tried, the application shall be rejected without even referring to the merits of the case.
Discussing the apprehension of arrest through case laws
An arrest is anticipated when the person is accused of a non-bailable offence. when a non-bailable offence is committed the police has the right to arrest the person and present him/her to the court within 24 hours. Taking account of the fact that a person is innocent until proven guilty, anticipatory bail protects the liberty of an individual and ensures that the dignity of a person shall not be harmed on insubstantial and ill-considered grounds which may be framed by the prosecution. Priya mukarjee vs. State of Karnataka,in this case, the petitioner is the Chief Operating Officer of the ARG outliner media private limited and she is responsible for the operations of news channels Republic TV in English and R.bharat in Hindi.
The Mumbai police have alleged Republic TV in a face TRP scam. The key persons and the employees were summoned before the investigation team for the recording of the statement in detail on 17.11.2020 and on 18.11.2020. On 19.11.2020 the petitioner submitted a letter to the Mumbai police stating the deteriorating medical condition of her father and had to pay him a visit. The letter also stated that the petitioner is willing to cooperate to the maximum extent in the investigation process as soon as the health of her father improves. She had to seek the transit anticipatory bail apprehending that Mumbai police may arrest her in Bengaluru.
The Karnataka high court granted her transit bail for a period of 20 days stating that when the personal liberty of an individual is under threat due to the apprehension of arrest they can seek relief from the court, thus rejecting the arguments made by the Mumbai police. The Section 46(1) of the CRPC states the procedure of arrest by police by confinement of the body of the person arrested, Section 438 provides immunity against the “confinement” by the police. The high court can grant the anticipatory bail in circumstances where the individual has the apprehension to be arrested within its jurisdiction. If the case has been filed against the accused in any other state, then while taking up the transit anticipatory bail applications it becomes irrelevant in which state the case has been filed against the accused
The other side of the story : Syed Zafrul Hussan & Anr. v. State
Let us now have a glance at the other side of the story through the case of Syed Zafrul Hussain. Syed Zafrul Hussain and Prasanta Majumdar were the two petitioners in this case and were the employees of the Associated Cement Company Ltd. Both of them held the position of the dealing assistance and the head of the section respectively at the branch office in Patna.
A case was filed against an executive engineer of the company with regard to the 8000 tons of cement to the government. Apprehending the arrest filed an anticipatory bail application in the Patna High Court. The court while hearing the case came across an issue that whether Section 438 of the CRPC sufficiently deals with the grant of anticipatory bail in any sessions or high court in the country, irrespective of the fact that where the particular offence was committed.
The court came upon the conclusion that Section 438 does not envisage the grant of anticipatory bail in any sessions court or high court in the country where the accused may apprehend arrest. Such power vests only in the court of sessions or the high court having jurisdiction over the locale of the commission of the offence of which the person is accused.
Limited time period of a transit bail
The transit bail can only be granted for a limited time period for an individual who is likely to be arrested for an accusation of a non-bailable offence in a different jurisdiction from where the case is filed. In these circumstances, the high court needs to be made sure that the accused shall comply with the conditions set by the court for granting the bail as the proceedings progress.
The order given by the court shall be for a reasonable time period so as to the accused shall surrender before the court of the appropriate jurisdiction and deal with the matter further.
This was decided through the case of Sailesh Jaiswal v. State of West Bengal (1998) by the 5 judge bench of the Calcutta high court. The petitioner was an Iron merchant in a factory situated in Kolkata. Some individuals disclosing themselves as police officials required petitioner’s attendance in relation to a criminal matter in Allahabad, while he was away conducting business activities. The petitioner made it clear to the court as to why his attendance was completely unwarranted and illegal and prayed for anticipatory bail.
Precedents set forth by the Supreme Court
As the concept of transit anticipatory bail is a judicial precedent rather than a codified law the observations made by the apex court concerning the matter are significant. One key insight can be drawn from the case of Sandeep Sunilkumar Lahoriya v. Jawahar Chelaram Bijlani. The case was registered under Sections – 302, 120B and 34 of the Indian penal code and also with sections 3 and 25 of the Arms Act. The case was registered in the state of Maharashtra.
The accused then applied for anticipatory bail in the high court of Bombay where the application was rejected. The accused then filed an anticipatory bail in the nature of a transit bail which is not present under any provision of the code of criminal procedure. Without considering the order passed by the Bombay high court and that the bail application was maintainable or not.
The supreme court shockingly said that it was difficult for them to even comprehend that under what provisions and authority such an application was even registered in the high court of Madhya Pradesh. Also, the orders passed by the high court of Madhya Pradesh in regard to granting the transit bail shall not in any way let the accused claim anticipatory bail or regular bail before any trial court or the High Court. However, here the discussion on the question of law for transit bail was kept open by the supreme court.
The transit anticipatory bail is a concept that is yet to be completely utilised in order to provide equity and justice to the citizens of this country. It is used in some cases to help the accused pray for the anticipatory in front of the appropriate court or in other cases as exploited as a loophole and also as per the observation mentioned above by the supreme court it is yet to frame principles for the better use of the concept.
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