Understanding Transit Anticipatory Bail

Whether protection from arrest can be granted to a person/ accused named in the FIR registered outside the territorial jurisdiction of the permanent living place of the accused, by the Court of Session or High Court whose jurisdiction the accused is residing?  

The above question has been examined in details by the Hon’ble Supreme Court in its recent judgment dated 20.11.2023 passed in a case of Priya Indoria Vs. State of Karnataka & Ors. arising out of an S.L.P (Crl.) No.11423-11426 of 2023.

In the circumstance where a person/ accused named in the FIR registered outside the jurisdiction of the permanent living place of the accused, approached the Court of Session or High Court whose jurisdiction the accused is residing, seeking protection from arrest, the usual practice which the Court of Session and High Court were adopting, to grant transit anticipatory bail to the accused for a limited period.

What is transit anticipatory bail?

Transit bail or transit anticipatory bail is a type of an anticipatory bail granted by a Court of Session or High Court whose jurisdiction the accused is residing, for a limited period in which a short time protection from arrest is provided to a person/ accused named in the FIR registered outside the jurisdiction of the permanent living place of the accused and has reasonable apprehension of arrest. This protection is provided to the person/ accused to enable him to approach the concerned Court having proper jurisdiction to grant anticipatory bail. The purpose of transit bail is to protect the person from arrest while he is travelling to approach the jurisdictional Court for anticipatory bail having proper territorial jurisdiction over the Police Station where alleged offence has been registered. 

Observation of the Supreme Court:- 

The Hon’ble Supreme Court in the case of Priya Indoria Vs. State of Karnataka & Ors. (Supra) after discussing the several judgments passed by the different High Courts on the issue involved and concerned provisions of Laws, has observed as under:-

33. Considering that the nature of criminal law regime in India, entwined with State amendments, the exercise of the jurisdiction for grant of extra-territorial anticipatory bail must be cognizant of the possibility of forum shopping. We also deem it necessary to take note of the evolution of the law on inter-state arrests, as this lies at the heart of ‘apprehension of arrest,’ for which the extraordinary jurisdiction of the High Court and Court of Session are attracted in case the accused resides in or is located in a territorial jurisdiction different from the

jurisdiction in which cognizance of crime is taken by the Court of competent jurisdiction.

34. Section 48 of CrPC permits the police to pursue an accused in other jurisdictions. A police officer, for the purpose of arresting without a warrant, one whom he is allowed to arrest, may pursue an individual anywhere in India. Prior to effecting the arrest outside a particular jurisdiction, the police is obligated to secure the transit remand i.e. the remand of the accused, for taking him from one place to another in their own custody, usually for the purpose of producing him before the

concerned magistrate who has jurisdiction to try/commit the case. The primary purpose of such a remand is to enable the police to shift the person in custody from the place of arrest to the place where the matter can be investigated and tried. However in various cases, the police and investigating agencies have failed to exercise necessary restraint while functioning within their legal remit. It is for the aforesaid reason that an accused apprehending arrest seeks pre-arrest bail. The Courts in India have to be vigilant about such applications being filed particularly when a person alleged to have committed an offence can be proceeded with by

setting the criminal law in motion in a place other than the place where the offence has actually occurred. In such circumstances the Courts must balance the interest of the accused in the context of the salutary principle of access to justice which is a facet of Article 21 of the Constitution as well as a Directive Principle of State Policy, especially Article 39(A). More importantly, it is a facet of Article 14 of the

Constitution which guarantees to every person in the country, equality before the law and equal protection of the law.

36. In view of what we have discussed above, we are of the view that considering the constitutional imperative of protecting a citizen’s right to life, personal liberty and dignity, the High Court or the Court of Session could grant limited anticipatory bail in the form of an interim protection under Section 438 of CrPC in the interest of justice with respect to an FIR registered outside the territorial jurisdiction of the said Court, and subject to the following conditions:

(i) Prior to passing an order of limited anticipatory bail, the investigating officer and public prosecutor who are seized of the FIR shall be issued notice on the first date of the hearing, though the Court in an appropriate case would have the discretion to grant interim anticipatory bail.

(ii) The order of grant of limited anticipatory bail must record reasons as to why the applicant apprehends an inter-state arrest and the impact of such grant of limited anticipatory bail or interim protection, as the case may be, on the status of the investigation. (iii) The jurisdiction in which the cognizance of the offence has been taken does not exclude the said offence from the scope of anticipatory bail by way of a State Amendment to Section 438 of CrPC.

(iv) The applicant for anticipatory bail must satisfy the Court regarding his inability to seek anticipatory bail from the Court which has the territorial jurisdiction to take cognizance of the offence. The grounds raised by the applicant may be -

a. a reasonable and immediate threat to life, personal liberty and bodily harm in the jurisdiction where the FIR is registered;

b. the apprehension of violation of right to liberty or impediments owing to arbitrariness;

c. the medical status/ disability of the person seeking extraterritorial limited anticipatory bail.

37. It would be impossible to fully account for all exigent circumstances in which an order of extra territorial anticipatory bail may be imminently essential to safeguard the fundamental rights of the applicant. We reiterate that such power to grant extra-territorial anticipatory bail should be exercised in exceptional and compelling circumstances only which means where, denying transit anticipatory

bail or interim protection to enable the applicant to make an application under Section 438 of CrPC before a Court of competent jurisdiction would cause irremediable and irreversible prejudice to the applicant. The Court, while considering such an application for extra-territorial anticipatory bail, in case it deems fit may grant interim protection instead for a fixed period and direct the applicant to make an application before a Court of competent jurisdiction.

39. We shall now revert to our illustration given at the beginning of this judgment. In the illustration, we have stated that if a person commits an offence in one State and the FIR is lodged within the jurisdiction where the offence was committed but the accused resides in another State he can approach the Court in the other State and seek transit anticipatory bail of limited duration. We have held that the accused could approach the competent Court in the State where he is residing or is visiting for a legitimate purpose and seek the relief of limited transit anticipatory bail although the FIR is not filed in the territorial jurisdiction of the District or State in which the accused resides, or is present depending upon the facts and circumstances of each case. Conversely, the offence may be committed in one State, the FIR may be lodged in another State and the accused may reside in a third State. In which of the Courts of the three States would the accused approach for grant of anticipatory bail? We feel that having regard to the salutary concept of access to justice, the accused can seek limited transit anticipatory bail or limited interim protection from the Court in the State in which he resides but in such an event, a ‘regular’ or full-fledged anticipatory bail could be sought from the competent Court in the State in which the FIR is filed.

 Conclusion:- 

In the circumstance where a person/ accused named in the FIR registered outside the jurisdiction of the permanent living place of the accused, the High Court or the Court of Session could grant limited anticipatory bail in the form of an interim protection under Section 438 of CrPC in the interest of justice with respect to an FIR registered outside the territorial jurisdiction of the said Court, and subject to the following conditions: (i) Prior to passing an order of limited anticipatory bail, the investigating officer and public prosecutor who are seized of the FIR shall be issued notice on the first date of the hearing, though the Court in an appropriate case would have the discretion to grant interim anticipatory bail. (ii) The order of grant of limited anticipatory bail must record reasons as to why the applicant apprehends an inter-state arrest and the impact of such grant of limited anticipatory bail or interim protection, as the case may be, on the status of the investigation. (iii) The jurisdiction in which the cognizance of the offence has been taken does not exclude the said offence from the scope of anticipatory bail by way of a State Amendment to Section 438 of CrPC. (iv) The applicant for anticipatory bail must satisfy the Court regarding his inability to seek anticipatory bail from the Court which has the territorial jurisdiction to take cognizance of the offence. The grounds raised by the applicant may be - a. a reasonable and immediate threat to life, personal liberty and bodily harm in the jurisdiction where the FIR is registered; b. the apprehension of violation of right to liberty or impediments owing to arbitrariness; c. the medical status/ disability of the person seeking extraterritorial limited anticipatory bail.