Introduction
The code of criminal procedure nowhere defines the term transit anticipatory bail. However, by the virtue of the literal meanings of the terminologies Transit (movement), Anticipatory (about to happen), and Bail (temporary release), it can be defined as the bail being sought by a person apprehending arrest by other state police to a court of another jurisdiction where the proceeding is taking place.
The transit anticipatory bail is the legal remedy to the concept of transit remand. The latter is the permit given to the police to arrest a person in different jurisdictions granted by the judicial magistrate, whereas the former objects to limiting the absolute arresting power of the police. The concept of transit anticipatory bail is comprehensive yet fathoming out the provisions of bail and anticipatory bail is a prerequisite.
Concept of Bail
The bail is written permission from the court that affirms the liberty option of the accused person as not to be detained yet compel him to remain with the court’s jurisdiction so as to ensure his future attendance for the trial. In the case of Vaman Narain Ghiya v. State of Rajasthan,[1] it was elucidated by the court that the bail could be understood as a right for the assertion of freedom against the state imposing the restraint. In other words, it is a temporary release of an accused person for a specified time interval. Etymologically, the word ‘bail’ is purported to be derived from the French word ‘baillier’, which gives the meaning of ‘to deliver or to give’. Though bail has not been defined in CrPC, it has been used numerous times throughout the procedural code and has been a pivotal concept of the criminal justice system backed by the fundamental principles enshrined under Part III and IV of the Indian constitution.
“The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process”. – Justice V.R. Krishna Iyer
The bail connotes surety,[2] thus the bail could be perceived as the arrested person’s release from the custody, on either the promise of the bails-person (surety) or the personal bond of the accused himself. It is universal that bail relies on monetary assurance either self-assurance or third-party sureties. This definition was reiterated by the Apex Court in the case of Motiram & Ors v. State of Madhya Pradesh.[3] It is pertinent to note that the concept of bail is based on the bedrock principle of presumption of innocence.
Provision relating to bail is provided under chapter XXXIII of CrPC. The conditional liberty qua the bail is explicated under Sections 436 to 450 of the code. Bail is the legal right of an arrested person in a bailable offence,[4] whereas in a non-bailable offence[5] though it is not a matter of right, it can still be availed\granted at the discretion of the competent court.[6]In bailable offence, police are empowered to grant bail, whereas in non-bailable offences, police custody is an inevitable concomitant of arrest, and the bail can only be pleaded during the proceeding just after the arrest of a person. Section 436 is mandatory in nature where police and court[7] have no discretion in the matter, and it has dealt with the cases in which the bail can be granted. The subsequent Section 437 talks about the non-bailable cases, where the bail may be taken.
Anticipatory Bail
One of the imperative concepts pertaining to bail is Anticipatory bail. Anticipatory bail is the bail in anticipation of an arrest. Any person who apprehends the arrest in a non-bailable offence can apply for anticipatory bail before High Court or Session court. Though such preventive relief has not been originally included in the code, the provision, which expressly dealt with the procedure of seeking anticipatory bail by the person who is expecting an arrest, is Section 438. One of the conflicting aspects of anticipatory bail was regarding the duration of the anticipatory bail so as to whether it can be granted for a specific period or not. However, it is not a Res Integra question as the same has been settled by the Apex Court in the case of Sushila Aggarwal & Ors v. State (NTC of Delhi)[8]. In this case, it was held that the protection granted to a person under Section 438 of the code should not be confined to a limited time unless a special case is made out. Further, the court went on to expound that the life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed but can continue till the end of the trial.[9]
In the case of HDFC Bank Ltd v. J.J. Mannan,[10] the court explained the legislative intent of provision 438 as the object of Section 438 is that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. Similarly, in the case of Parvinderjit Singh v. State (U.T. Chandigarh),[11] the Apex Court stated that an order under Section 438 is a device to secure the individual’s liberty; it is neither a passport to the commission of crime nor a shield against any and all kinds of accusations likely or unlikely.
Regular Transit Bail
The concept is dealt with under Sections 79 to 81 of CrPC. This bail can be sought when an arrest is made outside the jurisdiction of the court where proceeding is taking place, the court of that place where the arrest has been made is competent to grant bail.
Transit Anticipatory Bail
This concept falls under the purview of Anticipatory bail elucidated under Section 438 of the code. Reiteratively, though the term ‘transit anticipatory bail’ has not been used much throughout the code, the significance of the same can never be overlooked as it is being a ‘judge-made law’ that came into existence through judicial practice. The anticipatory bail can be sought when a case is filed against a person in one jurisdiction, where he is not currently residing, and apprehending arrest by the police of that state. Basically, transit anticipatory bail is bail granted by a court not having jurisdiction over the place where offence is has been committed.
The procedure is that the person apprehending such arrest can move the application of transit anticipatory bail to the nearest court to travel to the other state where the suit has been filed, without being arrested by the police. Again, it is truly at the court’s discretion to decide whether or not to grant the remedy been pleaded by the applicant. In the case of Honey Preet Insan v. State and Anr,[12] it was held by the Delhi court that the application of transit anticipatory bail will be rejected without even referring to the merit of the case if it is apparent that the applicant is a bona fide resident of a place falls under the ambit of the court’s jurisdiction where he is been tried.
Since there is no provision, which expressly dealt with it either to permit or to disallow the transit anticipatory bail, there are conflicting views, they are as follows,
Limited view: Patna High Court expressed its view on the subject as the application for transit anticipatory bail can only be filed before the court where the case is filed i.e. the court, which has jurisdiction over the case.
Extensive interpretation: Delhi High Court was of the view that since the object of this non-statutory yet judge-made law is to ensure the widest possible protection to personal liberty, such application can be made to the nearby High Court that has jurisdiction over the place where the accused is apprehending the arrest.
The views of Bombay, Karnataka, Kerala, Calcutta, and other High Courts are being a walk on a tightrope in this issue as it has been stated in a catena of cases that such application can be made before the court having no jurisdiction over the offence. But, the protection is confined to its jurisdiction with a supplemented time limit. Since the views of the High Court are conflicting in nature, the observation made by the Supreme Court is imperative. In the case of Sandeep Sunilkumar Lahoriya v. Jawahar Chelaram Bijlan[13] expressed its view on the matter as while rejecting the application of transit anticipatory bail, it was difficult to comprehend under what provision and authority did the applicant has made such application. Therefore, it is relatively easy to grasp that the Apex Court is yet to definitively settle the law on this as the question is still up in the air.
Necessity of Transit Anticipatory Bail
Let’s assume that a case has been filed in Kolkata against a person who lives in Chennai. The general procedure is that the application for anticipatory bail has to be filed at either session court or high court of that jurisdiction where the case has been filed (here, it is Kolkata). By the time this person arranges an advocate for getting the anticipatory bail at Kolkata, there is a possibility that he could be arrested by the Kolkata police. As already stated, a person is always presumed to be innocent unless proven otherwise. If an innocent get arrested by the police though he is willing to cooperate in the investigation process, there is a likelihood of facing social ramifications. Therefore, the purpose of the Transit anticipatory bail is to grant such person a temporary bail till a specific time sufficient to reach the appropriate court.
Notable Cases on Transit Anticipatory Bail
Suraj Pal v. Vijay Chaudan[14]
After analyzing the facts, the Uttar Pradesh High Court was refused to grant the Transit anticipatory bail in a heinous offence of dowry death by stating that there is no provision to do so.
N K Nayar and Ors v. State of Maharashtra
In this case, it was held by the Bombay High Court that the court has jurisdiction to hear an application for transit anticipatory bail only if the applicant is apprehending his arrest within its jurisdiction.
Priya Mukherjee v. The State of Karnataka
This is the most recent case where the Karnataka High Court held that the court is duty-bound to look upon the application for anticipatory bail in order to safeguard the right being guaranteed under Article 21 of the Indian constitution if the personal liberty of an individual is in danger.
Conclusion
The concepts of anticipatory bail and transit anticipatory bail are fortifying the interests of individuals falsely accused of committing offences and subjects to wrongful detention. It not only seeks to prevent the accused from deprivation of rights and liberties but also curb him/her from fleeing off-trail, as it is granted only when the applicant undertakes that he/she shall be present in court whenever it is necessary and promises to extend full cooperation to the investigation. Besides, the concomitant of availing bail is abiding by the specified time limit, before which the accused person should present himself before officials in the jurisdiction where the actual offence has taken place.
References:
- Bharat, C. (2020) law of Bail. [online] Bharat Chungh. Available at: https://bharatchugh.in/2020/05/10/law-101-law-of-bail/
- A. (2021) What is Transit Anticipatory Bail? All about the Bail Nikita & Shantanu got in Toolkit Case. [online] The Print. Available at: https://theprint.in/theprint-essential/what-is-transit-anticipatory-bail-all-about-the-bail-nikita-shantanu-got-in-toolkit-case/606661/
- Shairwal, S & Shloka, C. (2022) Understanding the Idea of Transit Bail in Criminal Laws. [online] Lexology. Available at: https://www.lexology.com/library/detail.aspx?g=4cb60019-3070-4bad-b556-c0646a971306
[1] (2009) 2 SCC 281.
[2] Sunil Fulchand Shah v. Union of India, AIR 2000 SC 1023.
[3] (1978) 4 SCC 47.
[4] S. 2(a) of CrPC.
[5] Id at 4.
[6] Shakuntala Devi v. State of UP, 1986 CriLJ 365.
[7] VamanNarainGhiya v. the State of Rajasthan, AIR 2009 SCC 281.
[8] 2020 SCC OnLine SC 98.
[9] Id at 8.
[10] AIR 2010 SC 618.
[11] AIR 2009 SC 502.
[12] 2017 SCC OnLine Del 10690.
[13] Special Leave to Appeal (Cri.) No. 4829 of 2013.
[14] 2015 SCC OnLine Del 10285.
