“Transit Bail” or “Transit Anticipatory Bail”

Recently, words like “Transit Bail” “Transit Anticipatory Bail” have caught the nation’s attention, in the wake of the ‘toolkit’ case. 

Why in news ?

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.

What is bail ? 

the release of a person from legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgement of the court.

What is Bailable and Non-Bailable offence ?

 What is an ordinary/ regular bail ?

A ordinary/ regular bail is generally granted to a person who has been arrested or is in police custody. A bail application can be filed before the Court other than High Court of Court of Session for the regular bail under section 437 and High Court and Court of Session have special power regarding the bail under section 439.

What is Anticipatory Bail ? 

Anticipatory bail is granted under section 438 of CrPC either by session court or High Court. An application for the grant of anticipatory bail can be filed by the person who discerns that he may be arrested by the police for a non- bailable offence. For which 

Section 438(1) says, when any person has a reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Sessions Court for a direction under this section. The court may grant the bail if it deems fit.

Section 438(2) says that Bail on Condition can be given if there is compulsory presence for interrogation, no obstruction to justice or leaving the country.

Need of Anticipatory bail arises out of the following reasons : 

1. To avoid false cases for the purpose of disgracing or for other mala fide intentions by getting the framed/ victims detained.
2. Where there is likelihood of the accused getting absconded or misusing the rights and liberties etc.

As per section 438 in the Code of Criminal Procedure, 1973 states the Direction for the grant of the bail to any person apprehending arrest.

What is Transit Anticipatory Bail ?

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

The Word ‘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.

When to ask for Transit Bail?

 A transit anticipatory bail is sought when a case against a person has been or is likely to be filed in a state different from the one in which he or she is likely to be arrested. So the purpose of a transit bail is to allow the person bail, so they can approach the appropriate court in the state in which the case has been filed for anticipatory bail.

Simply, “Transit Bail” means bail granted by a Court not having jurisdiction over the place where offence was committed.

For Example, A is resident of Gujarat and has an apprehension that a case might get registers against A in Rajasthan. In normal situation, A will have travel to Rajasthan from Gujarat in order to get bail as the Rajasthan Court is empowered to grant bail to A. However, if A is apprehending arrest by Rajasthan Police within Gujarat jurisdiction, he can move to court in Gujarat for seeking anticipatory bail. The local courts grant 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 investigation process.

Use of Transit Anticipatory Bail

1. In absence of transit anticipatory bail, the police of some other state can arrest a person from their home town without granting them an opportunity to apply.
2. The only option left with the person would be to apply for a regular bail and once arrested to be taken into the state where the case is registered.
3. 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 want 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.

Once the person is arrested, they have to be produced before the magistrate within 24 hours. They are thus produced by the police of the other state (that has registered the case) where the person has been arrested to get the transit remand. It may not be possible to produce the person within 24 hours sometime too.

What is a Transit Remand Order?

In practical terms, ‘Transit Remand Order’ means on order passed by a Judicial Magistrate remanding an arrested person to police custody for the purpose of his transit to another state. By issuing such a ‘Transit Remand Order’, the local magistrate certifies that the police personnel from the outside state had the authority to arrest the person, and such arrest was done legally. Further, the Magistrate authorizes the other-state police to take the arrestee out of home state. 

Statutory Relevance of Transit Anticipatory Bail : Analysing Judicial Principles

Sec. 438 of the Code of Criminal Procedure deals with “direction for grant of bail to person apprehending arrest.” Although the provision directly indicate the grant of 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 release on bail.  

What courts have said before

While Section 438 does not talk about transit anticipatory bail, courts have in the past granted such bail to those who feared arrest.

For instance, in a 1985 judgment, a two-judge bench of the Bombay High Court considered the question whether Section 438 CrPC can be used by it when the case is filed in some other state.

The court ruled that it “would have jurisdiction if a person is likely to be arrested at a place within the jurisdiction of this court”. It referred to similar decisions given by the Karnataka High Court, the Calcutta High Court and the Delhi High Court.

However, in another 2017 judgment in the Gurugram school murder case, Justice A.S. Gadkari of the Bombay High Court opined that the jurisdiction in such cases rests with criminal courts in the place where the crime was committed and not where the accused lives or in any other part of the country.

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, requires to be consideration in such applications”

What HC Said in Muluk’s Case 

Muluk, a resident of Beed district, Maharashtra, had approached the Bombay HC with an application for anticipatory transit bail, informing the court that a Delhi Police team is already in Beed.

The high court noted that the FIR has been lodged in New Delhi and so any regular application for anticipatory bail under Section 438 of CrPC will be considered by the Delhi High Court. It, however, asserted that the court now needs to consider whether Muluk can be granted transit bail to be able to approach the proper court in Delhi for this purpose.

It then referred to the Bombay High Court’s 1985 verdict, saying it would be applicable in this 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 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 circumstances, application cannot be rejected only on ground that the Delhi Police are not party to this application. The purpose of the bail application would itself get frustrated”, the court observed.

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 Sunil kumar Lahoriya Vs. Jawahar Chelaram Bijlani vide order dtd. 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 month vide order dtd. 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 dtd. 14th June, 2013 were with regard to anticipatory bail and hence the observations made by this Court in the order dtd. 14th 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 recent case of 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 Offence  

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:

1. Core statutory provision concerning grant of transit anticipatory bail is sec. 438 of Cr.P.C
2. 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.
3. 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.
4. The Court must keep into mind that the due process of law is not abused while granting transit anticipatory bail.
5. Apprehension of infringement of personal liberty due to apprehension of arrest is a ground for seeking transit anticipatory bail.
6. 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.
7. Transit bail is granted only for a limited period to enable the accused to approach the court having regular jurisdiction to seek bail.

Other Judgements :

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.

It also noted that the high court last month granted transit anticipatory bail to ‘Tandav’ director Ali Abbas Zafar, Amazon Prime India head Aparna Purohit, producer Himanshu Mehra and the show’s writer Gaurav Solanki, against whom a case was registered in Lucknow for allegedly hurting religious sentiments through the web series.

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.”

Conclusion

Section 438 is a procedural provision which is concerned with personal liberty of an individual, entitled to the benefit of the presumption of innocent since he is not, on the date of his application for Anticipatory Bail, convicted of the offence in respect of which he seeks bail. Although the power to release on anticipatory bail can be described as of an “extraordinary” character this would not justify the conclusion that the power must be exercised in exceptional cases only. It is not necessary that the accused must make out a special case for the exercise of the power to grant anticipatory bail. Thus this paper dealt with how  A anticipatory bail and regular bail is generally granted to a person who has been arrested or is in police custody. A bail application can be filed before the Court other than High Court of Court of Session for the regular bail under section 437 and High Court and Court of Session have special power regarding the bail under section 439 and Benchmark Judgements and view taken by  Hon’ble High courts and Hon’ble Supreme court.

Author:  Dhruvil Kanabar

Editor: Adv. Aditya Bhatt & Adv. Chandni Joshi