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

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 factorIn 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 ...

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

Nupur Thapliyal

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