What is Transit Anticipatory Bail?

In the light of Allahabad High Court Judgment:

In Criminal Laws, the term ‘Transit Anticipatory Bail’ is not defined however, it is to be noted and understood under Section 438 of Cr.P.C, which states about the directions for the grant of a person apprehending arrest. The above section confers power to the High Courts and the Courts of Sessions to grant Transit Anticipatory Bail any accused, only if the court deems fit for it. However, Transit Anticipatory Bail is different from anticipatory bail and regular bail which any accused seeks after registration of complaint. It could be understood in the light of the following judgement of Allahabad High Court.

Facts

On Friday, 30^th September’2022, Hon’ble Rajesh Singh Chauhan, J. of Allahabad High Court in Ajay Agarwal vs. State Of U.P. Thru. Addl. Chief Secretary, Home Lko. And 3 Others, (Criminal Misc. Anticipatory Bail no. 1669 of 2022, decided on 30.09.2022) observed that the transit anticipatory bail can be granted to persons against complaints made under the jurisdictions of other High Courts in the light of Section 438 of Cr.P.C. In Ajay Agarwal (Supra), High Court, Allahabad explained that there is no legislation or law which defines “transit or anticipatory bail” in definitive or specific terms. Court referred to the 41^st Law Commission Report, 1949 and its recommendation for the provision of Anticipatory Bail to safeguard the right of life and personal liberty of a person under Article 21 of the Constitution of India. Later, provision of Section 438 of anticipatory bail was inserted in the Code of Criminal Procedure. It is also observed that the term ‘transit’ here means the act of being moved from one place to another while the word ‘anticipatory bail’ refers to a temporary release of any accused who is anticipating arrest, therefore transit anticipatory bails refers to the bail granted to any person who is apprehending arrest by the Police of a State other than the State he is presently located in.

Observations

Allahabad High Court also observed that a transit bail is protection from arrest for a certain definite period of time which is granted by the court. Any accused granted transit bail does not mean that the bail can be converted into an anticipatory bail or he could merely get it extended by the court under which jurisdiction it falls. It is further observed that the accused granted transit bail for a definite certain period of time has to apply for the anticipatory bail or the regular bail before the court. That regular court will decide to grant anticipatory bail on its own merit. Therefore, transit bail is a temporary relief which an accused gets for certain period of time so that he/she could apply for anticipatory bail before the regular court.

Allahabad High court also observed the judgement of Teesta Atul Seetalvad & Anr Vs. State of Maharashtra & Others, in which the Bombay High Court observed that the High Court of one State can grant Transit Bail in respect of a case registered within the jurisdiction of another High Court in exercise of power under Section 438 Cr.P.C. The above Teesta Atul Seetalvad (Supra) case was further taken as S.L.P NO. 1770 to the apex court.  The Supreme Court in the said matter declined to interfere. 

The Allahabad High Court also observed another judgement of Bombay High Court, Nikita Jacob Vs. The State of Maharashtra, (Anticipatory Bail Application No. 441 of 2021 decided on 17.02.2021) in which the Bombay High Court reiterated and adopted the same principle as has been laid down in the case of Teesta Atul Setalvad (Supra)

Hence, Allahabad High Court further states that, “It appears from the said judgment that there is no fetter on the part of the High Court in exercising the power under Section 438 of the Code in granting anticipatory bail for a limited period to enable the applicant to move the appropriate Court as the gravity of pre-trial arrest and the loss of liberty of the individual cannot be compromised on the anvil of the powers, competence and/or jurisdiction of the Court and there is no doubt that the right to liberty is enshrined in Part-I1I of the Constitution of India and such rights cannot be impinged except by following procedure established by law.”.

Allahabad High Court granted six weeks time to the accused in the above Ajay Agarwal (Supra) case from the date of order so the applicant approach the competent court from which he is seeking relief.

Case:- Ajay Agarwal vs. State Of U.P. Thru. Addl. Chief Secretary, Home Lko. And 3 Others, (Criminal Misc. Anticipatory Bail no. 1669 of 2022, decided on 30.09.2022)