When an accused is residing in a state different from the state where FIR is lodged, the accused can seek a transit anticipatory bail in the state they are residing in. Transit anticipatory bail is a limited time bail. For instance an FIR is registered against A in Delhi but A resides in Mumbai. A will have to apply for bail in competent jurisdiction, that is Delhi. However, chances of arrest during this time period and travel may occur, hence A can apply for transit anticipatory bail before bail is sought in court of competent jurisdiction. It is a temporary measure to safeguard individual’s liberty and rights.
Most arrests will happen where the accused is residing, hence the Supreme Court came with the concept of Transit Anticipatory Bail, which is protection for the accused against arrest until they can reach a court with territorial jurisdiction where FIR is registered.
The Supreme Court justified this provision by asserting that denying access to Transit Anticipatory Bail based solely on territorial jurisdiction would restrict the powers under Section 438 of CrPC, potentially leading to a miscarriage of justice and contradicting principles of access to justice. The Court of Session or High Court can entertain a plea for limited anticipatory bail, even if the FIR is outside its territorial jurisdiction, and may consider Transit Anticipatory Bail based on the circumstances until the accused can approach the competent court for full-fledged anticipatory bail.
Latest Judgement by Supreme Court: The latest ruling comes in the case of Priya Indoria vs State of Karnataka, where the accused husband and his family were granted extraterritorial anticipatory bail without issuing notice to the investigating officer and public prosecutor in Chirawa police station, Rajasthan, wherein the wife had lodged the FIR. The Bench continued the protection from arrest for four weeks to enable accused persons to approach the jurisdictional court in Chirawa for anticipatory bail.
Tool kit case and transit anticipatory bails: Earlier the Bombay High court in Nikita Jacob vs state of Mumbai, Jacob was granted three week transit anticipatory bail, as non bailable warrant was issued by Tis Hazari court, Delhi . This was the infamous “Toolkit” case, where another accused was granted transit pre arrest bail. This is a protection under ambit of Section 438 Cr.P.C. The Bombay High Court in it’s order mentioned “Temporary relief to protect liberty and to avoid immediate arrest can be granted by this Court. Generally, the powers of High Court in anticipatory bail applications are limited to its territorial jurisdiction. However, as observed in the case of Javed Anand (supra), there may be cases where if protection is not granted, liberty of an individual would be jeopardised. The real cause of making application under Section 438 is proposed arrest of person. In the present case there is strong apprehension of arrest.”
Recently, the Supreme Court held that High Courts and Sessions Court have power to grant interim/transit anticipatory bail even when the First Information Report (FIR) has been registered in another state.
Conditions for extra territorial transit 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 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 reasonable and immediate threat to life, personal liberty and bodily harm in the jurisdiction where the FIR is registered;
- the apprehension of violation of right to liberty or impediments
owing to arbitrariness;
- the medical status/ disability of the person seeking extra-
territorial limited anticipatory bail.
To avoid Forum -shopping in such cases, the Supreme Court has further laid down that 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 or 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,”
The Supreme Court has reiterated that 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.
