Transit Bail – Statutory Right or Judicial Innovation?

1. History and concept

Despite instances of transit anticipatory bail having been granted as far back as 1980, the phrase “transit anticipatory bail” is not defined under the Code of Criminal Procedure, 1973 or any other law in India.

Having not been codified at the time, the grant of anticipatory bail itself was adjudicated upon by courts as part of their inherent and discretionary power prior to 1973. Being “Judge made law”, the idea of transit anticipatory bail was occasionally interpreted by Courts in India by a conjoined reading of multiple provisions of the Code of Criminal Procedure, 1898, thereby giving structure to an otherwise unusual postulation in legal jurisprudence.

2. Procedure

Pursuant to a warrant of arrest being issued, the accused is granted bail by the Court within which jurisdiction she resides, to enable her to reach the Court of competent jurisdiction and seek bail. Transit bail is usually sought to achieve protection against arrest arising out of warrant issued in one State, by a person residing in a different State.

It is sought for specifically and solely during the period of transit from the jurisdictional Court wherein the accused resides to the Court of competent jurisdiction where the warrant was issued. Essentially, transit bail is a form of protection from arrest for a definite amount of time.

For example, A is a director of a multinational corporation and resides in Bengaluru. An FIR has been registered against A in Mumbai. To seek bail, A would have to travel to Mumbai to apply for anticipatory bail before the Court of competent jurisdiction. However, A may be arrested by the Mumbai Police whilst she is in Bengaluru, before she has the opportunity to seek anticipatory bail in Mumbai. To avoid such unpleasantness, A may apply for transit anticipatory bail in Bengaluru. Transit anticipatory bail may be granted as a temporary measure of security while A applies for bail at the jurisdictional Court.

3. Essential elements of transit anticipatory bail

(i) Court of competent jurisdiction

Generally speaking, a Court granting anticipatory bail is limited by the principle of territorial jurisdiction in granting the bail. A Court cannot usurp the jurisdiction of other Courts and disturb the comity of Courts. However, the High Court of Bombay in Teesta Atul Setalvad v. State of Maharashtra,¹ relied on the decision of N.K. Nayar v. State of Maharashtra² to observe that there is a possibility that the pre-trial arrest and loss of liberty would result in the need to receive proportionate protection.

The Court seems to have drawn a nexus in jurisdiction by stating that the arrest is most likely to take place wherever the arrestee is located, and hence the court closest to the arrestee will have jurisdiction to issue bail.

(ii) Time period

Being granted for a definite period is an essential element of transit anticipatory bail. Courts across the country have reiterated that the time period for transit bail should not be so long as to make it equivalent to regular bail.

It is to be noted that once transit bail has been granted in favour of the arrestee, that by itself does not mean that anticipatory bail ought to be granted by another court. Transit bail is a temporary relief, which allows the accused a definitive time period within which she is to apply for anticipatory bail before a Court of competent jurisdiction, which will consider the case on its merits and decide the same.

The Supreme Court in Sushila Aggarwal v. State (NCT of Delhi)³ held that the time period for which anticipatory bail can be granted is discretionary and can vary depending on the facts and circumstances of each case. The Supreme Court also placed reliance on Gurbaksh Singh Sibbia v. State of Punjab⁴ wherein it was held that anticipatory bail was a question of personal liberty, and hence not subject to a time period. These principles are applicable to transit bail as well.

4. Important judicial rulings

A Division Bench of the Bombay High Court in N.K. Nayar⁵ observed that in the event an accused is apprehending arrest within its jurisdiction, the competent Court therein will have jurisdiction to consider an application under Section 438 of the Code of Criminal Procedure.

The High Court of Karnataka in Dr. L.R. Naidu v. State of Karnataka⁶ and the High Court of Calcutta in B.R. Sinha v The State of West Bengal ⁷expressed similar views.

Courts across the country continue to adopt a similar view, particularly in instances wherein it appears that criminal complaints are being filed with ulterior motives.

Reiterating the views expressed in L.R. Naidu⁸, the High Court of Karnataka while granting transit bail to the petitioner in Priya Mukharjee v. State of Karnataka,⁹ observed that Section 438 of the Code of Criminal Procedure is a beneficial provision and is required to be considered in favour of the citizen. Similarly, transit bail was granted to the directors of an online gaming company, by the High Court of Karnataka¹⁰ in respect of an FIR registered against them by the Mumbai Police.

In Nikita Jacob v. State of Maharashtra,¹¹ the petitioner was granted transit bail by the High Court of Bombay where the Court observed that “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.”

The High Court of Allahabad in Ajay Agarwal v. The State of U.P.,¹² relied on Teesta and Nikita Jacob to grant transit bail while observing that “(…) there is no fetter on the part of the High Court in granting a transit anticipatory bail to enable the Applicants to approach the Courts including High Courts where the offence is alleged to have been committed and the case is registered. There is no doubt that the right to liberty is enshrined in Part-III of the Constitution of India and such rights cannot be impinged except by following procedure established by law. This court finds that the commercial transaction ensued between the applicants and the complainant and there are criminal cases lodged by the parties against each other. It is a fit case where the applicants should get the privilege of transit pre-arrest bail in the light of the order passed in the case of Nikita Jacob (supra).”

It must be noted however, that the High Court of Bombay has in Dr. Augustine Francis Pinto. v. State of Maharashtra.¹³ rejected transit bail on the ground that courts cannot transgress into the local jurisdiction of other courts within which alleged offences have been committed. However, this judgement has been doubted by later judgements of the High Court of Bombay including in Nikita Jacob and Shantanu Shivlal Muluk v. The State of Maharashtra.¹⁴

5. Conclusion

Although Section 438 of the Code of Criminal Procedure primarily deals with the issuance of “anticipatory bail”, which is a broader concept of protection, “transit anticipatory bail” falls within the ambit of this afforded protection under Section 438 of the Code of Criminal Procedure, 1973.

With the expansion of businesses and the e-commerce boom, higher managerial personnel often have warrants of arrest issued against them for alleged offences occurring in other States. Transit bail has proved essential in protecting these individuals and ensuring the protection of their personal liberty and freedom.

The decisions passed by several High Courts across the country have reflected and upheld the sanctity of personal liberty and freedom, particularly in cases of media trial and in cases that appear motivated.