Transit Anticipatory Bail Under the Bharatiya Nagarik Suraksha Sanhita (BNSS): Can Courts Still Grant It?

 Introduction

The concept of transit bail, also known as transit anticipatory bail, plays a crucial role in safeguarding the rights of individuals who fear arrest in a jurisdiction different from where they currently reside. With the recent enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaces the Code of Criminal Procedure (CrPC), questions have arisen regarding the continued availability and legal basis of transit bail. This article explores whether courts can still grant transit bail under the BNSS and examines the current legal landscape.

What is Transit Bail?

Transit bail is a temporary relief granted to a person who anticipates arrest in connection with a case registered outside the jurisdiction of their current residence. The primary purpose of transit bail is to provide interim protection from arrest, allowing the individual sufficient time to approach the competent court in the jurisdiction where the offence is alleged to have occurred and seek regular or anticipatory bail.

Is Transit Bail Codified in the BNSS?

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Whether the Court entertaining transit anticipatory bail has duty to ascertain proximity between the Accused and the territorial jurisdiction of the Court?

  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.  {Para 39}

40. We are conscious that this may also lead the Accused to choose the Court of his choice for seeking anticipatory bail. Forum shopping may become the order of the day as the Accused would choose the most convenient Court for seeking anticipatory bail. This would also make the concept of territorial jurisdiction which is of importance under the Code of Criminal Procedure pale into insignificance. Therefore, in order to avoid the abuse of the process of the Court as well as the law by the Accused, it is necessary for the Court before which the plea for anticipatory bail is made, to ascertain the territorial connection or proximity between the Accused and the territorial jurisdiction of the Court which is approached for seeking such a relief. Such a link with the territorial jurisdiction of the Court could be by way of place of residence or occupation/work/profession. By this, we imply that the Accused cannot travel to any other State only for the purpose of seeking anticipatory bail. The reason as to why he is seeking such bail from a Court within whose territorial jurisdiction the FIR has not been filed must be made clear and explicit to such a Court. Also there must be a reason to believe or an imminent apprehension of arrest for a non-bailable offence made out by the Accused for approaching the Court within whose territorial jurisdiction the FIR is not lodged or the inability to approach the Court where the FIR is lodged immediately.

41. Having regard to the vastness of our country and the length and breadth of it and bearing in mind the complex nature of life of the citizens, if an offence has been committed by a person in a particular State and if the FIR is filed in another State and the Accused is a resident in a third State, bearing in mind access to justice, the Accused who is residing in the third State or who is present there for a legitimate purpose should be enabled to seek the relief of limited anticipatory bail of transitory nature in the third State.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. ... of 2023 (Arising out of SLP (Crl.) Nos. 11423-11426 of 2023 (Arising out of Diary No. 7943 of 2023))

Decided On: 20.11.2023

Priya Indoria Vs. State of Karnataka and Ors.

Hon'ble Judges/Coram:

B.V. Nagarathna and Ujjal Bhuyan, JJ.

Author: B.V. Nagarathna, J.

Citation:  MANU/SC/1246/2023.

Read full Judgment here: Click here

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Whether Police Must Secure Transit Remand For Arrests Outside State To Safeguard Rights of accused Under Article 22 of constitution?

  Section 48 of Code of Criminal Procedure 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.

{Para 34}

35. Perhaps the need and necessity for transit anticipatory bail has occasioned because the police has been conferred power under the Code of Criminal Procedure to pursue an Accused in other jurisdictions. Immediately upon affecting the arrest of a person outside the jurisdiction where the offence is registered, the police is obligated to secure a transit remand. The arrested person has to be produced before the nearest magistrate. If such a magistrate finds that he has no jurisdiction to try the case in which the Accused has been arrested, he may order the Accused to be forwarded to a magistrate having the jurisdiction to try the case or to commit it for trial. Thus, the police is obligated to secure a transit remand of the Accused for taking him from the place where he is arrested to the place where the crime is registered, for production before the competent magistrate in terms of the requirement of Article 22. As we have already noted, the primary purpose of such a transit 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. 

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. ... of 2023 (Arising out of SLP (Crl.) Nos. 11423-11426 of 2023 (Arising out of Diary No. 7943 of 2023))

Decided On: 20.11.2023

Priya Indoria Vs. State of Karnataka and Ors.

Hon'ble Judges/Coram:

B.V. Nagarathna and Ujjal Bhuyan, JJ.

Author: B.V. Nagarathna, J.

Citation:  MANU/SC/1246/2023.

Read full Judgment here: Click here

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Supreme Court lays down conditions for grant of transit anticipatory bail

 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 Code of Criminal Procedure 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 Code of Criminal Procedure.

(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 extra- territorial limited anticipatory bail.

{Para 36}

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 Code of Criminal Procedure 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.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. ... of 2023 (Arising out of SLP (Crl.) Nos. 11423-11426 of 2023 (Arising out of Diary No. 7943 of 2023))

Decided On: 20.11.2023

Priya Indoria Vs. State of Karnataka and Ors.

Hon'ble Judges/Coram:

B.V. Nagarathna and Ujjal Bhuyan, JJ.

Author: B.V. Nagarathna, J.

Citation:  MANU/SC/1246/2023.

Read full Judgment here: Click here

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Whether 'transit anticipatory bail' can be granted by a High Court or Court of Session to a person apprehending arrest?

If a rejection of the plea for limited/transitory anticipatory bail is made solely with reference to the concept of territorial jurisdiction it would be adding a restriction to the exercise of powers Under Section 438. This, in our view, would result in miscarriage and travesty of justice, aggravating the adversity of the Accused who is apprehending arrest. It would also be against the principles of access to justice. We say so for the reason that an Accused is presumed to be innocent until proven guilty beyond reasonable doubt and in accordance with law. In the circumstances, we hold that the Court of Session or the High Court, as the case may be, can exercise jurisdiction and entertain a plea for limited anticipatory bail even if the FIR has not been filed within its territorial jurisdiction and depending upon the facts and circumstances of the case, if the Accused apprehending arrest makes out a case for grant of anticipatory bail but having regard to the fact that the FIR has not been registered within the territorial jurisdiction of the High Court or Court of Session, as the case may, at the least consider the case of the Accused for grant of transit anticipatory bail which is an interim protection of limited duration till such Accused approaches the competent Sessions Court or the High Court, as the case may be, for seeking full-fledged anticipatory bail. {Para 46}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. ... of 2023 (Arising out of SLP (Crl.) Nos. 11423-11426 of 2023 (Arising out of Diary No. 7943 of 2023))

Decided On: 20.11.2023

Priya Indoria Vs. State of Karnataka and Ors.

Hon'ble Judges/Coram:

B.V. Nagarathna and Ujjal Bhuyan, JJ.

Author: B.V. Nagarathna, J.

Citation:  MANU/SC/1246/2023.

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Can the high court grant anticipatory bail if the offence is registered outside that state even though the accused was residing in its jurisdiction?

 That apart, the High Court of Jammu and Kashmir

not having the appellate powers under Chap. XXXl

nor the revisional powers under Chap, XXXI of the

Code, and nor even the powers of superintendence

and control Under Section 104 of the Constitution of

Jammu and Kashmir in relation to Courts situated

outside the territory of the State, its order will have

no binding force on those Courts. The same will be

true of the Police Stations which are situated outside

the territory of the State. Law will not, therefore,

countenance a situation where an order of the High

Court may be flouted by a Court lower than the High

Court or for that matter by an officer-in-charge of a

police station with impunity. If the interpretation

sought to be placed on Section 497-A by Mr. Singh,

that the High Court and the Court of Session have

powers to grant anticipatory bail to a person, against

whom a case has been registered with a police

station, situated outside the territory of the State is

to be accepted, then a situation is likely to arise

where the High Court of Jammu and Kashmir may

have to watch as a helpless spectator its order

granting anticipatory bail to the accused in that case

being disregarded by the Officer-in-charge of the

police station. Such cannot be the true intent and

scope of Section 497-A. {Para 5}

7. On the basis of the aforequoted reasoning, the

Court came to the conclusion that the High Court has no

jurisdiction to grant anticipatory bail to a person against

whom a case has been registered with a police station

which is situated outside the local limits of its

jurisdiction under the Code.

8. From the aforequoted enunciation of law on the

subject, it is clear that this Court does not have

jurisdiction to entertain and decide the bail application

which relates to an FIR that has been registered beyond

the local limits of this Court even though the

accused/petitioner may be residing within the

jurisdiction of this Court.

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

Bail App. No.65/2022

NASIR AHMAD WANI & ORS Vs  POLICE STATION NEEMUCH & ORS.

CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE

Dated: 03.06.2022.

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Questions and answers on law part 20

Q 1:-  What is transit bail and when court should grant it?

Ans:- A transit bail is a bail granted by a Court not having jurisdiction over the place where offence was committed.

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.

Q. 2:- Whether court can grant interim compensation as per O 15A of CPC(Maharashtra amendment) if eviction suit is filed against gratuitous licensee?

Ans: In case reported in AIR 2007 Bombay 83 Radheshyam v\s Tuljaprasad Honble Bombay High court has taken a view that the the provisions of order 15 A of C.P.C. would come into play only when there is prima facie evidence to show that the rent or licence fees was agreed between the parties.

In case of gratuitous licensee, there is no any fixed amount payable. Therefore no question of grant of interim compensation..

Q 3:-  Whether court should send order of cancellation of registered will to sub registrar?

Ans:- S 31 of specific relief Act,

(1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.

(2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.

Hence As will is registered, court should send it to sub-registrar.

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Whether court in whose jurisdiction accused is apprehending arrest may apply for transit bail even if the offence is committed in another court's jurisdiction?

According to my view, the law laid down by the Division Bench

of this Court in N.K. Nayar’s case (supra) would then be applicable, wherein it has been observed -

“While considering the question as to whether the provisions of

Section 438 of the Code of Criminal Code, 1973 can be utilized by

this Court when the case or the contemplated criminal proceedings

would be in some other State, has held that, if arrest is likely to be

effected within the jurisdiction of this Court, the concerned person

should have the remedy of applying to this Court for anticipatory bail

even if offence might have been committed in some other State. It is

further observed that, consequently this Court would have jurisdiction

if a person is likely to be arrested at a place within the jurisdiction of

this Court.”

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

965 ANTICIPATORY BAIL APPLICATION NO.154 OF 2021

SHANTANU SHIVLAL MULUK Vs THE STATE OF MAHARASHTRA

CORAM : SMT. VIBHA KANKANWADI, J.

DATE : 16th FEBRUARY, 2021.

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