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Explainer : What Is 'Transit Anticipatory Bail'? When Can 'Transit Bail' Be Granted?

Nupur Thapliyal
20 Feb 2021 4:04 PM GMT
Doctrine of Legitimate Expectation and Promissory Estoppel

Recently, words like "Transit Bail" "Transit Anticipatory Bail" have caught the nation's attention, in the wake of the 'toolkit' case.

The Bombay High Court last week granted 10 days transit anticipatory bail to Shantanu Muluk whose arrest was sought by the Delhi Police in connection with the toolkit case. Following this, a Mumbai based lawyer, Adv. Nikita Jacob was also granted three weeks transit anticipatory bail in the same case.

This piece is an attempt to provide a conceptual understanding of these terms "transit anticipatory bail" or "transit bail", which mean the same and are used interchangeably.

Transit Bail: Understanding The Meaning

The words 'transit bail' or 'transit anticipatory bail' are neither defined under the Code of Criminal Procedure or any other law in force, nor do the find any specific reference under the law of criminal procedure. However, the roots of this concept can be traced under the Cr.P.C.

The reason why these concepts do not have a specific or a single source of provision is mainly because the concept is a "judge made law". From time to time, Indian Courts have interpreted the concept by reading between various sections under the criminal law thereby giving a structure to an otherwise uncommon postulation in legal jurisprudence.

Let us understand the meaning of the word "transit bail". A transit bail is a bail granted by a Court not having jurisdiction over the place where offence was committed.

A "transit anticipatory bail" therefore is when a person is apprehending arrest by police of a State other than the State where he/she is presently situated. As the word "transit" suggests, it is an act of being moved or carried from one place to another. Moreover, Black Law Dictionary defines the word "In Transitu" as on the way/passage or while passing from one person or place to another.

For example, A is a resident of Punjab and has an apprehension that a case might get registered against A in Delhi. In a normal situation, A will have to travel to Delhi from Punjab in order to get bail as the Delhi Court is empowered to grant bail to A. However, if A is apprehending arrest by the Delhi Police within Punjab jurisdiction, he can move a Court in Punjab seeking anticipatory bail. The local courts grant transit bail as a limited protection till the time accused approaches the jurisdictional court for bail.

Largely, the purpose of transit anticipatory bail is to grant bail to a person till the time he/she reaches the appropriate Court so that in case the police wants to effect the arrest, the person will be released on bail. However, such bail is given at the condition that the accused has to cooperate in the investigation throughout the ongoing investigative process.

Statutory Relevance of Transit Anticipatory Bail: Analyzing Judicial Principles

Sec. 438 of the Code of Criminal Procedure deals with "direction for grant of bail to person apprehending arrest." Although the provision does not directly indicate the grant of a transit pre-arrest bail, it provides that 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 Court 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.

As already discussed before, since the law on grant of transit anticipatory bail is a judicial interpreted law, let us look at some of the important judgments laying down its principles.

Apprehension of Arrest- the key factor

In the recent order of the Bombay High Court(Aurangabad Bench) in the Shantanu Muluk case, the High Court observed "that the apprehension of arrest is the key factor, that is, required to be considered in such applications"

"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 Court observed in that case. Even the fact that Delhi police(which was seeking to arrest the applicant in Maharashtra) was not made a party in the bail application is not a ground to reject the application, the Court said.

"It is submitted that officers from Delhi Police are already in Beed. They will have to take help of local police for any operation to be conducted in the investigation at Beed. Under such circumstance, application cannot be rejected only on the ground that Delhi Police are not party to this application. The purpose of the bail application would itself get frustrated", the Court observed.

In a 1985 judgment, a division bench of the Bombay High Court held in the case N K Nayar and others vs State of Maharashtra(1985) that a court will have jurisdiction to consider an application under Section 438 of the Code of Criminal Procedure if the applicant is apprehending arrest within its jurisdiction.

"...this Court would have jurisdiction if a person is likely to be, arrested at a place within, the jurisdiction of this Court...even if the offences are said to have been committed outside the State of Maharashtra", the High Court observed.

The Bombay High Court in that case referred to similar views expressed by Karnataka High Court in the case of Dr. L. R. Naidu v. State of Karnataka reported in 1984 Cri LJ 757, and the Calcutta High Court in the case of B. R. Sinha v. State reported in 1982 Cri LJ 61.

In Vijay Latha Jain v. State 2007 SCC Online Del 1723, the Delhi High Court granted transit bail to the petitioner to enable them to have a "recourse to remedy available" to them in the court where the complaint case was registered.

The Bombay High Court recently dealt with applications seeking transit anticipatory bail by corporate director and marketing agent of an aviation institute who were apprehending arrest granted transit bail to them. Offences were registered against the applicants under sec. 420, 406 read with sec. 34 IPC. The Court while accepting their applications ordered that they may approach the court of competent jurisdiction for appropriate reliefs. (Rupesh Naryan Bawiskar v. State of Maharashtra 2019 SCC Online Bom 13012).

Recently, the Karnataka High Court, while granting bail to Republic TV COO Priya Mukherjee in the TRP scam case, observed that when personal liberty is at stake, a person can seek transit bail.

"..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 Cr.P.C", the High Court observed in Priya Mukherjee v State of Karnataka.

In the order granting transit bail to Advocate Nikita Jacob, the Bombay High Court observed :

"Temporary relief to protect liberty and to avoid immediate arrest can be granted by this Court. Generally the powers of High Court in anticipatory bail applications are limited to its territorial jurisdiction. However, as observed in the case of Javed Anand(supra), there may be cases where if protection is not granted, liberty of an individual would be jeopardized. The real cause of making application under Section 438 is proposed arrest of person. In the present case there is strong apprehension of arrest"(Nikita Jacob v State of Maharashtra).

In Nikita Jacob, the High Court followed its own decision in Javed Anand and another Vs. State of Gujarat and another(ABA No.627/2018, dated 5-4-2018)

Court can examine if the applicant is a bona-fide resident within its jurisdiction

In Honey Preet Insan v. State 2017 SCC Online Del 10690 (the famous Gurmeet Ram Rahin Singh case), a transit anticipatory bail application was filed by Honey Preet Singh. Preet, ordinarily a resident of Haryana had sought transit bail from a Delhi Court. The Delhi High Court while analyzing sec. 438 Cr.P.C. and transit anticipatory bail denied transit bail to her by laying down 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."

Decisions expressing a different view

The Patna High Court has taken a different view on the matter.

In Syed Zafrul Hussan & Anr. v. State AIR 1986 Pat 194, the full bench was dealing with the question as to "Whether Section 438 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?"

The Court answered the question by observing that "Sec. 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."

Transit bail can only be for a limited period

A 5-judge bench of the Calcutta High Court, in the case Sailesh Jaiswal v State of West Bengal(1998), while expressing broad agreement with the said Patna High Court Full Bench decision, said that transit bail can only be granted for a limited period.

The 5-judge bench was answering a reference made by a division bench as to whether High Court can grant anticipatory bail with respect to an FIR registered outside its jurisdiciton.

"...we are of the view that where any person has reason to believe that he is likely to be arrested on an accusation of having committed a non-bailable offence, he may either approach to the High Court or Court of Sessions for a direction that in the event of arrest he shall be released on bail. Therefore, on a plain reading of the provision, it speaks that the person allegedly accused of an offence must satisfy the court to which he approached that there are strong reason that he may likely be arrested in non-bailable offences. In support of such belief, he must place sufficient material so that the court would be in a position to form its opinion whether to grant or refuse anticipatory bail. In case, either the High Court or the Court of Sessions on reference of material produced before it that there is likelihood of a person being arrested in a non-bailable offence, it could grant anticipatory ball directing such person to be released on execution of bond or by Imposing any other condition which the arresting officer deemed it, just and proper. After such person being released on anticipatory bail by the arresting officer, the accused person within reasonable time but in no case beyond 24 hours of arrest shall appear before the court within the Jurisdiction of which he ordinarily resides. Either the Magistrate, Chief Judicial Magistrate or the Court of Sessions upon consideration of the material placed by the arresting officer and on hearing the Public Prosecutor of the locality in which the offences alleged to have been committed shall pass an appropriate order regarding regular ball under section 81 of the Code of Criminal Procedure. The exercise of Jurisdiction of anticipatory ball by any other court namely the High Court or the Court of Sessions beyond the local limits of the Jurisdiction is limited to the extent of consideration of a bail for the transitional period but it has no jurisdiction to transgress into the limits of the local Jurisdiction of the court within which offence is alleged to have been committed. With the above observation, the reference of the Division Bench has been answered".

The Calcutta High Court further said :

" is also highly desirable in the interest of justice that a court granting anticipatory ball must make it conditional in term of duration, in a case where the criminal case has been registered elsewhere beyond its territorial Jurisdiction.

..the court, if it at all it grants anticipatory bail in favour of any person in respect of a case registered outside its territorial Jurisdiction, should expressly make the order of anticipatory bail operative for a limited period requiring the petitioner to surrender before the appropriate court in the meantime whereupon it will be for that court to deal with the matter thereafter in accordance with law."

In the case of Dr. Augustine Francis Pinto & Ors. v. State of Maharashtra & Ors., the Bombay High Court was dealing with applications seeking transit anticipatory bail for enabling parties to approach the competent Court in Haryana. The applicants apprehended arrest in a case registered under sec. 302 of IPC and sec. 25 of the Arms Act.

The Court while rejecting the applications, observed that "The exercise of jurisdiction of anticipatory bail by High Court or the Court of Sessions beyond the local limits of the jurisdiction is limited to the extent of consideration of a bail within its territorial jurisdiction or for the transitional period and it cannot have jurisdiction to transgress into the local limits of the local jurisdiction of any other High Court or Court of Session which is not under under its superintendence and control, within whose Jurisdiction alleged offence has been committed."

Supreme Court observations

Although the intervention of the Apex Court in the matters involving the issue of transit anticipatory bail has been limited, the Supreme Court has left the question open as to what will be the exact position while dealing with transit anticipatory bail.

The Supreme Court in the case of Sandeep Sunilkumar Lahoriya v. Jawahar Chelaram Bijlani vide order dated 14.06.2013 in Special Leave to Appeal (Cri.) No.4829 of 2013 had the occasion of dealing with a case wherein the accused was granted transit anticipatory bail by the Madhya Pradesh High Court without noticing that the High Court had rejected his anticipatory bail application which was upheld by the Supreme Court.

The case was registered under Sec. 302, 120B and 34 of IPC and sec. 3 and 25 of the Arms Act. The Supreme Court observed in the order dated 14.06.2013 :

"The accused appears to have filed an application for anticipatory bail in the nature of transit bail, which in our view has no provision under the Code of Criminal Procedure, 1973."

The Court went ahead to observe "It is difficult to comprehend under what provisions and under what authority of law such an application was even registered by the High Court of Madhya Pradesh."

Thereafter, the Court while dealing with the same case after two months vide order dated 01.08.2013 observed that:

"The order passed by the High Court was in regard to a transit bail and the observations made by this Court in the order dated 14 th June, 2013 were with regard to anticipatory bail and hence the observations made by this Court in the order dated 14 th June, 2013 or in any other order passed by this Court in these matters, will not prejudice in any way the claim of the respondent No.1 for either temporary or regular bail before the Trial Court or the High Court which may be decided on its own merits.

We also make it clear that observations in the order passed by this Court on 14th June, 2013 or in any other order in these cases will also not cause any prejudice to the claim of any other accused in this matter for anticipatory or regular bail before the High Court or any other appropriate Court".

In the Shantanu Muluk v State of Maharashtra case, the prosecution had cited the observations of the Supreme Court in the Sandeep Lahoriya case(order dated 14.06.2013) to argue that transit bail application was not maintainable.

However, the Bombay High Court referred to the subsequent order passed by the SC in the Sandeep Lahoriya case(order dated 01.08.2013) and opined that the apex court has left the question of law on transit bail open.

The relevant observation of the High Court are as follows :

"Though the observations of Hon'ble Supreme Court are binding on this Court, here in view of the fact that the matter was adjourned and then Hon'ble Supreme Court while passing further order in the same matter observing that, "we also make it clear that observations in the order passed by this Court on 14th June, 2013 or in any other order in these cases will also not cause any prejudice to the claim of any other accused in this matter for anticipatory or regular bail before the High Court or any other appropriate Court." ; to my mind, has kept the said point open"

Transit bail in serious offences

Coming to the question whether transit anticipatory bail application can be granted in serious offences also, let us look at some of the cases where Court dealt with such applications involving serious allegations.

Recently the Delhi High Court in Dr. Sumit Gupta v. State of NCT of Delhi 2021 SCC Online Del 409 granted four weeks transit anticipatory bail to a doctor husband who was apprehending arrest in a case registered against him in Madhya Pradesh under sec. 498A and 34 of IPC along with various provisions of Domestic Violence Act.

The Court granted bail on the ground of his "apprehension of arrest" with a direction that he may not be arrested on his way to reach Bhopal prior to applying for anticipatory bail in the Court of competent jurisdiction.

In another case, the Delhi High Court in Suraj Pal v. Vijay Chauhan 2015 SCC Online Del 10285 observed that while granting transit bail, the nature and gravity of offence has to be taken into consideration.

The Court observed thus "Without considering the nature and gravity of the offence in question, transit bail has been granted for inordinate period of three weeks and not only this, it has been extended by another two weeks. Granting transit bail for such an inordinately long period amounts to virtually granting pre-arrest bail. Impugned orders do not provide any justification for granting transit bail for such a long period. The nature and gravity of the offence has not been considered. The discretion to grant transit bail has been exercised by the learned Additional Sessions Judge in a most inappropriate manner, which needs to be deprecated."

Therefore what falls from the above mentioned cases is that there cannot be a straight jacket formula while dealing with transit bail applications. More so, when the Apex Court has not yet gone specifically into the question of devising its principles yet. However, the following prepositions can be understood as far as grant of transit bail or transit anticipatory bail is concerned:

  • Core statutory provision concerning grant of transit anticipatory bail is sec. 438 of Cr.P.C
  • Since the law on transit anticipatory bail is mostly judicially interpreted, High Court observations may differ according to the facts and circumstances of each case. Therefore, there is no straight jacket principle to follow in every case.
  • While dealing with the applications of transit anticipatory bail, the Courts must take into consideration bona fide grounds to ensure that there is no manipulation of playing with the jurisdictions of the Court.
  • The Court must keep into mind that the due process of law is not abused while granting transit anticipatory bail.
  • Apprehension of infringement of personal liberty due to apprehension of arrest is a ground for seeking transit anticipatory bail.
  • Courts may show variance while dealing with serious and non serious offences while granting transit anticipatory bail. Such bail is purely granted on the discretion of the judge.
  • Transit bail is granted only for a limited period to enable the accused to approach the court having regular jurisdiction to seek bail.
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