This article has been written by Varsha Thapa of 2nd year B.B.A. L.L.B. studying in Army Law College, Pune.
Transit anticipatory bail
- Bail is a written permission from a court, allowing a person charged with a criminal offence to be out of jail while they wait for their trial, or some other result in their case. Bail is an important procedure during court proceeding when the court approves the arrested or accused from the custody. Bail is for a temporary periods ranging from 90 to 60 days. The accused can again be bought into custody if the court denies further permission for bail.
- Anticipatory bail or also known as pre-arrest bail is the legal procedure of approving the accused person to apply for bail before being arrest. Anticipatory bail is allowed under section 438 of CrPC, 1973. anticipatory bail is granted in anticipation of arrest and is therefore effective at the very moment of arrest.
- Transit anticipatory bail refers to the procedure of getting bail to any accused person who has been arrested in a state that is different from the state he is presently located. Transit refers to movement of a thing or person from one place to another. Therefore the accused is being moved from one place to another under transit anticipatory bail due to the reason that the accused can be moved from his location to the location of which his jurisdiction of crime falls.
- Only session court and high court have the power to grant transit, transit anticipatory and usual bail. It can also deny the permission to grant bail if the offenses are on significant matter.
Procedure of anticipatory bail
Section 438 of The Code of Criminal Procedure, 1973 gives the guide for grant of bail to person apprehending arrest.
- 438(1) when a person has 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 court of session for a direction under this section and that court mat, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
- 438(2) bail on condition: compulsory presence for interrogation, no obstruction to justice, no leaving country etc.
Transit anticipatory bail
- there is no mention of transit anticipatory bail in CrPC.
- Let’s take an example a case has been filed on Mr x in city of Delhi but Mr x is living in city of Kolkata. therefore
Police of Delhi will come in cit of Kolkata to arrest Mr x and present in the court of the city of Delhi. The time period in which the arrest is being taken by other city police, then the court grants transit anticipatory bail, so that Mr x can reach the city in which the case has been filed against him and follow the proceeding there.
- In the absence of transit anticipatory bail, the result would be that another state’s police could arrest a person from their home state without the having the opportunity to apply for anticipatory bail at all.
- The only option the left would be to apply for regular bail once they are arrested and taken to the state in which the case is registered.
Case reference
- Shantanu Mulak, a resident of Beed district, Maharashtra, had approached the Bombay High Court with an application for anticipatory transit bail, informing the court that a Delhi police team is already in Beed to arrest him.
- The Bombay 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.
- However, High Court asserted that Muluk can be granted transit bail to be able to approach the proper court in Delhi for anticipatory bail based on its previous verdict where it held “Bombay High Court would have jurisdiction if a person is likely to be arrested at a place within the jurisdiction this court.
Problems with transit anticipatory bail
- In Sandeep Lohariya and others vs Jawahar Chelaram and others 2013 case, the accused was charged under IPC and Arms Act Provisions in Navi Mumbai
- The accused approached the Bombay High Court for anticipatory bail, which was rejected in February 2013. The order was upheld by the supreme court twice.
- Following this, the accused managed to get transit anticipatory bail from the Madhya Pradesh high court, suppressing the fact that his anticipatory bail had been rejected by the Bombay High Court as well as the supreme court.
Necessity of transit remand
- Since the arrested person is required under the law to be presented before a magistrate within 24 hours of arrest, they are produced by the police of the other state- which has registered the case- before the nearest magistrate of the place from where the person has been arrested to get a transit remand.
- It may be not possible to travel from one state to another within 24 hours.
References