- Sakshar Law Associates
Understanding the Idea of Transit Bail In Indian Criminal Laws
Updated: Sep 1, 2022
In the wake of the ‘Toolkit’ case, words like ‘transit bail’ and ‘anticipatory bail’ surfaced and caught the attention of people. The Aurangabad bench of Bombay HC granted ten days transit bail to activist Shantanu Muluk and three weeks transit bail to Adv. Nikita Jacob. According to the report filed by the Delhi Police, they were guilty of Sedition in the case with regard to the ‘toolkit’ shared by a Swedish environmental activist Greta Thunberg in connection to the anti-farm law protests in Delhi (North India).
No legislation or law defines ‘transit or anticipatory bail’ in definitive or specific terms, however, the roots to the concept of transit bail can be traced back to the Code of Criminal Procedure (CrPC). The 41st Law Commission Report in 1969 recommended the provision of Anticipatory bail to safeguard the right to life and personal liberty of a person under Article 21 of the Constitution in this democratic country of India. The Code of Criminal Procedure 1973 acted on such recommendation and inserted the provision of Anticipatory Bail in Section 438 of the Act. The term ‘transit’ means the act of being moved from one place to another while the word ‘bail’ means a temporary release of any accused person who is anticipating trial, therefore, transit bail refers to when any person is apprehending arrest by police of a State other than the State he presently located in.
Section 22 of the Constitution of India speaks in regard to protection against arrest and detention. According to this section, any person who is arrested or detained in custody has to be presented before the nearest Magistrate within 24 hours of the arrest; however, it should be kept in mind that this period excludes any time of journey from the place the person has been arrested to the court. It also should be recorded that the arrested person cannot be detained beyond the period of 24 hours without the order of the magistrate. Bail is simply a written authorization allowing the accused to be released from the jail for the time being to ensure their presence in trial.
Section 438 of the Code of Criminal Procedure specifies direction for grant of bail to a person apprehending arrest and moreover confers power only upon the High Court and the Court of Sessions to grant anticipatory or transit bail if they deem fit. At the point when an individual has the motivation to accept that he might be captured on an allegation of having submitted a non-bailable offense, he may apply to the High Court or the Court of Session for a bearing under this part; and that Court may, on the off chance that it thinks fit, direct that in case of such capture, he will be delivered on bail. Nonetheless, transit anticipatory bill is different from ordinary bail. Ordinary bail is granted after arrest, releasing the accused from custody while anticipatory bail is granted in the anticipation of arrest i.e. it precedes detention of the accused and is effective immediately at the time of the arrest. In plain words, when an accused is arrested in accordance with the order of the court and whereas the accused needs to be tried in some other competent court having jurisdiction in the aforementioned matter, the accused is given bail for the transitory period i.e. the time period required for the accused to reach that competent court from the place he is arrested in.
In Mahesh Kumar Sarda Alias… v. Union of India, the learned judge after referring to various cases and judgments held that Section 438 of the CrPC does not permit High court or Sessions Court to grant anticipatory or transit bail within the city where the accused may choose to apprehend arrest. Power to grant transit bail confers only upon the Sessions Court or the High Court having jurisdiction over that place wherein the crime is committed or to decide the commission of the crime by the accused.
In the case of Smt. Merry Bina Marak v. State of Meghalaya & Anr. 2018, the High Court of Meghalaya stated that the jurisdiction to grant pre-arrest bail (transit bail) rests with Sessions Court and the High Court under Sections 438 and 482 of CrPC. It was further held that for granting transit bail in regards to non-bailable offenses in the meriting cases, the force of the High Court or Court of Sessions inside whose locale, individual lives, or place he apprehends arrest is reasonable and not banned as such. In this manner, blamed can summon ward for the High Court or Court of Sessions inside whose purview he lives or spot where he catches capture, however, granting anticipatory or transit bail cannot be a matter of routine and that the heinousness of the crime should be taken into consideration in such circumstances. The need for anticipatory bail arises from the likelihood of the accused escaping or misusing his rights or liberties while also avoiding bogus cases made against the accused of the sole purpose of tarnishing his reputation or wrongfully detaining him.
The High Court or the Sessions Court not only has the power to grant bail but also to deny anticipatory bail. Recently, the Allahabad High Court rejected the plea application to grant anticipatory bail to the commercial head of the Amazon Originals in India- Ms. Aparna Purohit in reference to various cases filed against the makers and actors of the Amazon web series ‘Tandav’ in various parts of India. The court rejected the plea on the grounds that showing the Hindu Gods in such disgraceful light not only is disrespectful to the beliefs and culture of the Hindu religion but also has a disastrous impact upon society as a whole. The court further added that although the western filmmakers refrained from mocking their god Lord Jesus, the Indian filmmakers have repeatedly bashed Hindu Gods and are still doing so. Allahabad High Court also referred to the controversial case of the stand-up comedian Munawar Faruqui, who in one of his Indore shows mocked the Hindu Gods and was later gained undue publicity when arrested for hurting the religious sentiments of the audience. The court brought up this case as an example that this trend of disrespecting gods has moved on as a trend from movies to comedy. “Such individuals make the worshipped figures of the religion of lion's share local area wellspring of bringing in cash in a most shameless way taking advantage of the liberal and lenient custom of the country”, the court held. The plea for anticipatory bail of Aparna Purohit was rejected as she had not been cautious and has acted unreliably making her open to the criminal indictment in allowing gushing of a film which is against the principal privileges of most residents of this country and along these lines, her essential right of life and freedom can't be secured by the award of expectant bail to her in the activity of optional forces of the Court.
Section 438(2) of the Code of Criminal Procedure enumerates the conditions which should be laid on the accused while providing him interim protection from arrest/ detention and in the light of facts that the High Court may think fit; these include:
(I) A condition that the individual will make himself accessible for cross-examination by the police as and when required;
(ii) A condition that the individual will not, straightforwardly or in a roundabout way, make any actuation, danger or guarantee to any individual familiar with current realities of the case to discourage him from uncovering such realities to the Court or to any police officer;
(iii) A condition that the individual will not leave India without the past authorization of the Court;
Section 438 sub-clause (3) of the Code of Criminal Procedure states the pre-requisites for applying for transit (or anticipatory) bail before the High Court or the Court of Sessions, whatever the case may be. The act provides that anticipatory bail can be obtained only in case of non-bailable offenses. Section 2(a) of the CrPC defines non-bailable offenses. It comprises all offenses which are not bailable under the First Schedule. In layman terms, Non- bailable offenses refer to grave offenses that when committed are punishable by either death penalty or life imprisonment or imprisonment for more than a period of seven years. For example- Abetment of mutiny, the offense of murder, etc. Other than the offense being non-bailable, there should be serious apprehension that the accused would be arrested or detained for committing such offense, to be eligible to claim anticipatory bail.
Whether granting Transit Bail should be limited by time? Various cases and judgments debated on the fact that whether the protection conferred upon the accused through the transit bail should be restrained to a particular period of time. In the case of Gurbaksh Singh Sinia v. State of Punjab AIR 1980 SC, the apex court held that granting of transit bail as a matter of right to personal liberty of the accused should not be limited by time, however, the appropriate court has the power to impose limitations based on the nature and its own understanding of the case i.e. on a case by case basis. In Salauddin Abdulsamad Shaikh v. State of Maharashtra AIR 1995 SC, the Supreme Court overruled its own ruling and held that granting transit bail should be limited by time. In SS Mhetre v. State of Maharashtra & Ors. AIR 2010 SC, the Supreme Court, again overruled its own judgment and stated that the life of an order granting transit bail cannot be restrained.
Due to contradicting views on the same subject matter of limitation on the transit bail, the Supreme Court in the recent landmark judgment in Sushila Agarwal v. State of Delhi AIR 2020 SC, had to decide on two issues: i) Regardless of whether the assurance conceded to an individual under Section 438 of Cr. P.C ought to be restricted to a fixed period to empower the individual to give up under the steady gaze of the preliminary court and look for normal bail, and (ii) Whether the life of expectant bail should end at that point and stage when the blamed is brought to court.
The Constitutional Bench of the apex court held that there can be no time limit set for the Anticipatory Bail by the court. The five-judge seat was satisfied to consistently hold that the protection allowed to an individual under Section 438 CrPC ought to not perpetually be restricted to a fixed period; it ought to acclimate for the denounced with no limitation on schedule." Answering the second issue the Hon'ble court held that "The life or span of a bail request doesn't end typically at that point and stage when the blamed is called by the court, or when charges are outlined, yet can proceed till the finish of the preliminary. Once more, if there are any uncommon or unconventional highlights requiring the court to restrict the tenure of anticipatory bail, it is open for it to do as such.
Cancellation of Anticipatory Bail: Section 437(5) and Section 439 of the Code of Criminal Procedure deals with the provision of canceling an anticipatory bail. Section 437(5) empowers any court which had the power to grant transit/anticipatory bail to cancel such bail and commit the accused to custody. Section 439 mentions the special powers of the High Court and the Sessions Court. The High Court or the Sessions Court may direct to arrest and detain into custody any person (accused) who has been released on bail. However, if the bail is granted not by the courts but by a police officer, then, the courts have no power to cancel bail which was not issued by them in the first place.
For years anticipatory bail has been safeguarding the interests of individuals falsely accused of committing offenses from their wrongful detention. It has protected their right to personal liberty and allowed them to seek redressal in the stipulated time and to protect their reputation from being tainted due to allegations. Anticipatory bail as a provision not only protects the interests of the accused but also prevents the accused from exploiting his rights and liberties or fleeing without trial.
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