Transit Anticipatory Bail

• Transit Anticipatory Bail is a legal remedy that allows a person to seek protection from arrest while traveling from one state to another within the country.
• In this form of bail, the accused can be shielded from arrest until they reach a court with territorial jurisdiction for the alleged offense. The term transit anticipatory bail is not explicitly defined under the CrPC or any other legislation.
• The SC had embraced the approach of transit anticipatory bail in the case of State of Assam v. Brojen Gogol (1998).
• It offers fair and interim relief, allowing an accused residing in a different state to apply for anticipatory bail.
• This relief is provided for a specified duration, allowing the applicant to file for anticipatory bail before a court that can take cognizance of the offense.

At what point should Transit Bail be Sought

• Transit anticipatory bail becomes necessary when there is a likelihood of a case being filed, or has been filed, in a state different from the one where the person may face arrest. In essence, transit bail serves the purpose of securing the individual’s release, allowing them to approach the relevant court in the state where the case has been filed for anticipatory bail.
• Put simply, “transit bail” refers to bail granted by a court that lacks jurisdiction over the place where the offense occurred.
• For instance, let’s consider A, a resident of Gujarat, who anticipates the registration of a case against them in Rajasthan. Ordinarily, A would need to travel to Rajasthan from Gujarat for bail since the Rajasthan Court has the authority to grant it. However, if A fears arrest by Rajasthan Police within Gujarat’s jurisdiction, they can seek anticipatory bail from a Gujarat court. Local courts may grant bail as a limited protection until A approaches the court with jurisdiction.
• Primarily, the purpose of transit anticipatory bail is to provide temporary bail until the person reaches the appropriate court. This ensures that if the police seek arrest, the person will be released on bail. However, such bail comes with the condition that the accused must cooperate throughout the ongoing investigation process.

Conditions for Transit Anticipatory Bail

• Notice shall be served to the Investigating Officer and the Public Prosecutor by the court before issuing an order of limited anticipatory bail, and the court shall retain the discretion to grant interim anticipatory bail.
• The order of grant should explicitly state the reasons behind the applicant’s fear of interstate arrest and highlight the potential impact of interim anticipatory bail on the ongoing investigation.
• The jurisdiction where the offense has been acknowledged does not preclude the applicability of anticipatory bail, and this extends to the offense through a state amendment to Section 438 of the CrPC.
• The applicant must convincingly demonstrate to the court his inability to seek such bail from a court with territorial jurisdiction.
• Grounds raised by the applicant may include an immediate and credible threat to life, personal liberty, and physical well-being, the jurisdiction where the FIR is lodged, concerns about potential violations of the right to life and liberty, or obstacles due to arbitrariness, as well as the medical condition or disability of the person seeking extra-territorial limited anticipatory bail.

Use of Transit Anticipatory Bail

• Without transit anticipatory bail, law enforcement from another state can apprehend an individual in their hometown without affording them an opportunity to seek legal recourse. The only recourse for the individual would be to apply for regular bail, and upon arrest, they would be transported to the state where the case is registered.
• Primarily, the purpose of transit anticipatory bail is to secure release until the individual reaches the appropriate court. This ensures that if the police intend to make an arrest, the person will be granted bail. However, this bail is contingent on the condition that the accused must cooperate fully in the investigation.
• Upon arrest, the individual must be presented before a magistrate within 24 hours. The police from the state where the case is registered, having arrested the person, must secure transit remand for their transportation. It’s worth noting that, at times, it may not be feasible to produce the individual within the stipulated 24-hour period.

Supreme Court – Case Laws

• In a case brought forward by the complainant/wife, challenging the orders dated 07-07-2022 issued by the Additional City Civil and Sessions Judge, Bengaluru (‘Bengaluru Court’), granting anticipatory bail to the accused/husband and his family for alleged offenses under Sections 498-A, 406, and 323 of the Penal Code, 1860 (‘IPC’), registered in Rajasthan by the complainant/wife, the division bench comprising BV Nagarathna and Ujjal Bhuyan, JJ., has ruled that when an offense is committed in one state, and the FIR is filed in another state, and the accused is a resident in a third state, considering access to justice, the accused residing or present in the third state for a legitimate purpose should be allowed to seek limited anticipatory bail of a transitory nature.
• In this specific instance, the husband and his family members sought anticipatory bail relief under Section 438 of the Code of Criminal Procedure, 1973 (‘CrPC’) before the Bengaluru Court, and the court granted the relief. Dissatisfied with the grant of anticipatory bail, the wife filed a petition before this Court, which was subsequently withdrawn on February 17, 2023, with the liberty to pursue her legal remedies. Subsequently, the current Special Leave to Appeal was filed, and notice was issued by this Court on March 17, 2023.

Analysis

• The Supreme Court, in an appeal filed by the complainant/wife against the orders  by the Additional City Civil and Sessions Judge, Bengaluru (‘Bengaluru Court’), granting anticipatory bail to the accused/husband and family for offenses under Sections 498-A, 406, and 323 of the IPC, registered in Rajasthan, emphasized that when an offense is committed in one state and the FIR is filed in another state, the accused, residing or present for a legitimate purpose in a third state, should be allowed limited anticipatory bail for access to justice.
• In this case, the husband and family sought anticipatory bail under Section 438 of the CrPC before the Bengaluru Court, which was granted. Dissatisfied, the wife filed a petition before the Supreme Court, later withdrawn with liberty to pursue legal remedies. The present Special Leave to Appeal was filed, and notice was issued on 17-03-2023.
• The Court examined CrPC Section 2(e) and Section 2(j), defining “High Court” and “local jurisdiction,” emphasizing the importance of territorial jurisdiction under Section 177. It discussed Section 438, its evolution, and overseas legal positions.
• The Court interpreted Section 438, cautioning against an absolute bar on the High Court or Court of Session’s jurisdiction for interim anticipatory bail outside their territory. Restrictive interpretation undermines personal liberty and access to justice, and the Court must adopt a contextually sensitive construction in line with constitutional values.
• The Court noted the absence of a definition for “anticipatory bail” and explained the necessity of “transit anticipatory bail” arising from the requirement of transit remand for an accused, emphasizing constitutional imperatives for personal liberty.
• For extra-territorial anticipatory bail, the Court outlined conditions, including notice to the investigating officer, recording reasons for inter-state arrest apprehension, and satisfaction about the inability to seek bail in the territorial jurisdiction. Such power should be exercised in exceptional circumstances.
• The Court set aside judgments against extra-territorial anticipatory bail, expressing concern about forum shopping. It clarified that accused cannot seek anticipatory bail in a state where they reside if the FIR is in another state, but they can seek transit anticipatory bail in their residing state for a limited duration before pursuing regular anticipatory bail.
• The Court annulled the Bengaluru Court’s orders but, in justice’s interest, directed no coercive steps against the husband for four weeks, allowing them to approach the jurisdictional Court in Rajasthan for anticipatory bail.

Conclusion

• Acknowledging the paramount importance of safeguarding an individual’s freedom, the Hon’ble Supreme Court introduced the concept of transit anticipatory bail. This provision enables an accused, residing in a state different from where the FIR is filed, to petition for a limited-duration anticipatory bail in their home state. The Hon’ble Supreme Court justified this provision by emphasizing that denying access to transit anticipatory bail based solely on territorial jurisdiction would curtail the powers under Section 438 of the CrPC, potentially resulting in a miscarriage of justice and conflicting with principles of access to justice. The Hon’ble Supreme Court affirmed that the Court of Session or High Court can entertain a plea for limited anticipatory bail, even if the FIR is outside its territorial jurisdiction, and may grant transit anticipatory bail based on the circumstances until the accused can approach the competent court for full-fledged anticipatory bail.
• The captioned judgment provides crucial relief to individuals apprehensive about potential arrest while traveling to another state where an FIR has been lodged against them. These individuals can now petition for transit anticipatory bail from the High Court or Sessions Court within the territorial jurisdiction of their current residence or workplace. Concurrently, they retain the option to pursue a ‘full-fledged’ anticipatory bail from the High Court with jurisdiction over the territory where the FIR has been registered.

Upendra Pandey

Junior Associate

M&H Law Chambers, LLP

Mumbai.