Explainer : What Is 'Transit

Anticipatory Bail'? When Can

'Transit Bail' Be Granted?
Nupur Thapliyal 20 Feb 2021 9:34 PM

Recently, words like "Transit Bail" "Transit Anticipatory Bail" have

caught the nation's attention, in the wake of the 'toolkit' case.

The Bombay High Court last week granted 10 days transit

anticipatory bail to Shantanu Muluk whose arrest was sought by the
Delhi Police in connection with the toolkit case. Following this, a
Mumbai based lawyer, Adv. Nikita Jacob was also granted three
weeks transit anticipatory bail in the same case.

This piece is an attempt to provide a conceptual understanding of

these terms "transit anticipatory bail" or "transit bail", which mean
the same and are used interchangeably.

Transit Bail: Understanding The Meaning

The words 'transit bail' or 'transit anticipatory bail' are neither

defined under the Code of Criminal Procedure or any other law in
force, nor do the find any specific reference under the law of criminal
procedure. However, the roots of this concept can be traced under
the Cr.P.C.

The reason why these concepts do not have a specific or a single

source of provision is mainly because the concept is a "judge made
law". From time to time, Indian Courts have interpreted the concept
by reading between various sections under the criminal law thereby
giving a structure to an otherwise uncommon postulation in legal
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 jurisprudence.

Let us understand the meaning of the word "transit bail". A transit

bail is a bail granted by a Court not having jurisdiction over the place
where offence was committed.

A "transit anticipatory bail" therefore is when a person is

apprehending arrest by police of a State other than the State where
he/she is presently situated. As the word "transit" suggests, it is an
act of being moved or carried from one place to another. Moreover,
Black Law Dictionary defines the word "In Transitu" as on the
way/passage or while passing from one person or place to another.

For example, A is a resident of Punjab and has an apprehension that

a case might get registered against A in Delhi. In a normal situation,
A will have to travel to Delhi from Punjab in order to get bail as the
Delhi Court is empowered to grant bail to A. However, if A is
apprehending arrest by the Delhi Police within Punjab jurisdiction, he
can move a Court in Punjab seeking anticipatory bail. The local
courts grant transit bail as a limited protection till the time accused
approaches the jurisdictional court for bail.

Largely, 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.

Statutory Relevance of Transit Anticipatory Bail: Analyzing

Judicial Principles

Sec. 438 of the Code of Criminal Procedure deals with "direction for
grant of bail to person apprehending arrest." Although the provision
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 does not directly indicate the grant of a transit pre-arrest bail, it
provides that when any person has reason to believe that he may be
arrested on an accusation of having committed a non- bailable
offence, he may apply to the High Court or the Court of Session for a
direction under this section; and that Court may, if it thinks fit, direct
that in the event of such arrest, he shall be released on bail.

As already discussed before, since the law on grant of transit

anticipatory bail is a judicial interpreted law, let us look at some of the
important judgments laying down its principles.

Apprehension of Arrest- the key factor

In the recent order of the Bombay High Court(Aurangabad Bench) in

the Shantanu Muluk case, the High Court observed "that the
apprehension of arrest is the key factor, that is, required to be
considered in such applications"

"The only fact that is required to be considered as to whether the

applicant can be granted liberty by way of transit bail to approach to
the competent authority for seeking appropriate relief", the Court
observed in that case. Even the fact that Delhi police(which was
seeking to arrest the applicant in Maharashtra) was not made a party
in the bail application is not a ground to reject the application, the
Court said.

"It is submitted that officers from Delhi Police are already in Beed.
They will have to take help of local police for any operation to be
conducted in the investigation at Beed. Under such circumstance,
application cannot be rejected only on the ground that Delhi Police
are not party to this application. The purpose of the bail application
would itself get frustrated", the Court observed.

In a 1985 judgment, a division bench of the Bombay High Court held

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 in the case N K Nayar and others vs State of Maharashtra(1985)
that a court will have jurisdiction to consider an application under
Section 438 of the Code of Criminal Procedure if the applicant is
apprehending arrest within its jurisdiction.

"...this Court would have jurisdiction if a person is likely to be,

arrested at a place within, the jurisdiction of this Court...even if the
offences are said to have been committed outside the State of
Maharashtra", the High Court observed.

The Bombay High Court in that case referred to similar views

expressed by Karnataka High Court in the case of Dr. L. R. Naidu v.
State of Karnataka reported in 1984 Cri LJ 757, and the Calcutta
High Court in the case of B. R. Sinha v. State reported in 1982 Cri
LJ 61.

In Vijay Latha Jain v. State 2007 SCC Online Del 1723, the Delhi
High Court granted transit bail to the petitioner to enable them to
have a "recourse to remedy available" to them in the court where the
complaint case was registered.

The Bombay High Court recently dealt with applications seeking

transit anticipatory bail by corporate director and marketing agent of
an aviation institute who were apprehending arrest granted transit
bail to them. Offences were registered against the applicants under
sec. 420, 406 read with sec. 34 IPC. The Court while accepting their
applications ordered that they may approach the court of competent
jurisdiction for appropriate reliefs. (Rupesh Naryan Bawiskar v.
State of Maharashtra 2019 SCC Online Bom 13012).

Recently, the Karnataka High Court, while granting bail to Republic

TV COO Priya Mukherjee in the TRP scam case, observed that when
personal liberty is at stake, a person can seek transit bail.
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 "..when personal liberty of a person is under threat and stake there is
an apprehension of arrest, the petitioner can seek relief before the
Court invoking Section 438 of Cr.P.C", the High Court observed in
Priya Mukherjee v State of Karnataka.

In the order granting transit bail to Advocate Nikita Jacob, the

Bombay High Court observed :

"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 jeopardized. The real cause of making application under
Section 438 is proposed arrest of person. In the present case there
is strong apprehension of arrest"(Nikita Jacob v State of
Maharashtra).

In Nikita Jacob, the High Court followed its own decision in Javed
Anand and another Vs. State of Gujarat and another(ABA
No.627/2018, dated 5-4-2018)

Court can examine if the applicant is a bona-fide resident within

its jurisdiction

In Honey Preet Insan v. State 2017 SCC Online Del 10690 (the
famous Gurmeet Ram Rahin Singh case), a transit anticipatory bail
application was filed by Honey Preet Singh. Preet, ordinarily a
resident of Haryana had sought transit bail from a Delhi Court. The
Delhi High Court while analyzing sec. 438 Cr.P.C. and transit
anticipatory bail denied transit bail to her by laying down the
following observation:

"Whenever an application for anticipatory bail is made before a

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 court, where an FIR has been lodged elsewhere i.e. outside the
territorial jurisdiction of that court, the court is duty bound to
consider whether the applicant is a regular or bona fide resident of a
place within the local limits of that Court and is not a camouflage to
evade the process of law. If the court is not satisfied on this aspect,
the application deserves to be rejected without going into the merits
of the case."

Decisions expressing a different view

The Patna High Court has taken a different view on the matter.

In Syed Zafrul Hussan & Anr. v. State AIR 1986 Pat 194, the full
bench was dealing with the question as to "Whether Section 438
envisages the grant of anticipatory bail by any High Court or any
Court of Session within the country, irrespective of the locale of the
commission of the offence?"

The Court answered the question by observing that "Sec. 438 of the
Code does not permit the grant of anticipatory bail by any High
Court or any Court of Session within the country where the accused
may choose to Apprehend arrest. Such a power vests only in the
Court of Session or the High Court having jurisdiction over the locale
of the commission of the offence of which the person is accused."

Transit bail can only be for a limited period

A 5-judge bench of the Calcutta High Court, in the case Sailesh

Jaiswal v State of West Bengal(1998), while expressing broad
agreement with the said Patna High Court Full Bench decision, said
that transit bail can only be granted for a limited period.

The 5-judge bench was answering a reference made by a division

bench as to whether High Court can grant anticipatory bail with
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 respect to an FIR registered outside its jurisdiciton.

"...we are of the view that where any person has reason to
believe that he is likely to be arrested on an accusation of
having committed a non-bailable offence, he may either
approach to the High Court or Court of Sessions for a direction
that in the event of arrest he shall be released on bail. Therefore,
on a plain reading of the provision, it speaks that the person
allegedly accused of an offence must satisfy the court to which he
approached that there are strong reason that he may likely be
arrested in non-bailable offences. In support of such belief, he must
place sufficient material so that the court would be in a position to
form its opinion whether to grant or refuse anticipatory bail. In case,
either the High Court or the Court of Sessions on reference of
material produced before it that there is likelihood of a person being
arrested in a non-bailable offence, it could grant anticipatory ball
directing such person to be released on execution of bond or by
Imposing any other condition which the arresting officer deemed it,
just and proper. After such person being released on anticipatory
bail by the arresting officer, the accused person within reasonable
time but in no case beyond 24 hours of arrest shall appear before
the court within the Jurisdiction of which he ordinarily resides. Either
the Magistrate, Chief Judicial Magistrate or the Court of Sessions
upon consideration of the material placed by the arresting officer
and on hearing the Public Prosecutor of the locality in which the
offences alleged to have been committed shall pass an appropriate
order regarding regular ball under section 81 of the Code of Criminal
Procedure. The exercise of Jurisdiction of anticipatory ball by
any other court namely the High Court or the Court of Sessions
beyond the local limits of the Jurisdiction is limited to the extent
of consideration of a bail for the transitional period but it has no
jurisdiction to transgress into the limits of the local Jurisdiction
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 of the court within which offence is alleged to have been
committed. With the above observation, the reference of the
Division Bench has been answered".

The Calcutta High Court further said :

"...it is also highly desirable in the interest of justice that a court

granting anticipatory ball must make it conditional in term of
duration, in a case where the criminal case has been registered
elsewhere beyond its territorial Jurisdiction.

..the court, if it at all it grants anticipatory bail in favour of any person

in respect of a case registered outside its territorial Jurisdiction,
should expressly make the order of anticipatory bail operative
for a limited period requiring the petitioner to surrender before
the appropriate court in the meantime whereupon it will be for
that court to deal with the matter thereafter in accordance with law."

In the case of Dr. Augustine Francis Pinto & Ors. v. State of

Maharashtra & Ors., the Bombay High Court was dealing with
applications seeking transit anticipatory bail for enabling parties to
approach the competent Court in Haryana. The applicants
apprehended arrest in a case registered under sec. 302 of IPC and
sec. 25 of the Arms Act.

The Court while rejecting the applications, observed that "The

exercise of jurisdiction of anticipatory bail by High Court or the Court
of Sessions beyond the local limits of the jurisdiction is limited to the
extent of consideration of a bail within its territorial jurisdiction or for
the transitional period and it cannot have jurisdiction to transgress
into the local limits of the local jurisdiction of any other High Court or
Court of Session which is not under under its superintendence and
control, within whose Jurisdiction alleged offence has been
committed."
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 Supreme Court observations

Although the intervention of the Apex Court in the matters involving

the issue of transit anticipatory bail has been limited, the Supreme
Court has left the question open as to what will be the exact position
while dealing with transit anticipatory bail.

The Supreme Court in the case of Sandeep Sunilkumar Lahoriya v.

Jawahar Chelaram Bijlani vide order dated 14.06.2013 in Special
Leave to Appeal (Cri.) No.4829 of 2013 had the occasion of dealing
with a case wherein the accused was granted transit anticipatory bail
by the Madhya Pradesh High Court without noticing that the High
Court had rejected his anticipatory bail application which was upheld
by the Supreme Court.

The case was registered under Sec. 302, 120B and 34 of IPC and
sec. 3 and 25 of the Arms Act. The Supreme Court observed in the
order dated 14.06.2013 :

"The accused appears to have filed an application for anticipatory

bail in the nature of transit bail, which in our view has no provision
under the Code of Criminal Procedure, 1973."

The Court went ahead to observe "It is difficult to comprehend under

what provisions and under what authority of law such an application
was even registered by the High Court of Madhya Pradesh."

Thereafter, the Court while dealing with the same case after two
months vide order dated 01.08.2013 observed that:

"The order passed by the High Court was in regard to a transit bail
and the observations made by this Court in the order dated 14 th
June, 2013 were with regard to anticipatory bail and hence the
observations made by this Court in the order dated 14 th June, 2013
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 or in any other order passed by this Court in these matters, will not
prejudice in any way the claim of the respondent No.1 for either
temporary or regular bail before the Trial Court or the High Court
which may be decided on its own merits.

We also make it clear that observations in the order passed by this

Court on 14th June, 2013 or in any other order in these cases will
also not cause any prejudice to the claim of any other accused in this
matter for anticipatory or regular bail before the High Court or any
other appropriate Court".

In the Shantanu Muluk v State of Maharashtra case, the

prosecution had cited the observations of the Supreme Court in the
Sandeep Lahoriya case(order dated 14.06.2013) to argue that transit
bail application was not maintainable.

However, the Bombay High Court referred to the subsequent order

passed by the SC in the Sandeep Lahoriya case(order dated
01.08.2013) and opined that the apex court has left the question of
law on transit bail open.

The relevant observation of the High Court are as follows :

"Though the observations of Hon'ble Supreme Court are binding on

this Court, here in view of the fact that the matter was adjourned
and then Hon'ble Supreme Court while passing further order in the
same matter observing that, "we also make it clear that observations
in the order passed by this Court on 14th June, 2013 or in any other
order in these cases will also not cause any prejudice to the claim of
any other accused in this matter for anticipatory or regular bail
before the High Court or any other appropriate Court." ; to my mind,
has kept the said point open"

Transit bail in serious offences

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 Coming to the question whether transit anticipatory bail application
can be granted in serious offences also, let us look at some of the
cases where Court dealt with such applications involving serious
allegations.

Recently the Delhi High Court in Dr. Sumit Gupta v. State of NCT of
Delhi 2021 SCC Online Del 409 granted four weeks transit
anticipatory bail to a doctor husband who was apprehending arrest
in a case registered against him in Madhya Pradesh under sec. 498A
and 34 of IPC along with various provisions of Domestic Violence
Act.

The Court granted bail on the ground of his "apprehension of arrest"

with a direction that he may not be arrested on his way to reach
Bhopal prior to applying for anticipatory bail in the Court of
competent jurisdiction.

In another case, the Delhi High Court in Suraj Pal v. Vijay Chauhan
2015 SCC Online Del 10285 observed that while granting transit
bail, the nature and gravity of offence has to be taken into
consideration.

The Court observed thus "Without considering the nature and

gravity of the offence in question, transit bail has been granted for
inordinate period of three weeks and not only this, it has been
extended by another two weeks. Granting transit bail for such an
inordinately long period amounts to virtually granting pre-arrest bail.
Impugned orders do not provide any justification for granting transit
bail for such a long period. The nature and gravity of the offence has
not been considered. The discretion to grant transit bail has been
exercised by the learned Additional Sessions Judge in a most
inappropriate manner, which needs to be deprecated."
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 Therefore what falls from the above mentioned cases is that there
cannot be a straight jacket formula while dealing with transit bail
applications. More so, when the Apex Court has not yet gone
specifically into the question of devising its principles yet. However,
the following prepositions can be understood as far as grant of
transit bail or transit anticipatory bail is concerned:

Core statutory provision concerning grant of transit anticipatory

bail is sec. 438 of Cr.P.C
Since the law on transit anticipatory bail is mostly judicially
interpreted, High Court observations may differ according to the
facts and circumstances of each case. Therefore, there is no
straight jacket principle to follow in every case.
While dealing with the applications of transit anticipatory bail,
the Courts must take into consideration bona fide grounds to
ensure that there is no manipulation of playing with the
jurisdictions of the Court.
The Court must keep into mind that the due process of law is
not abused while granting transit anticipatory bail.
Apprehension of infringement of personal liberty due to
apprehension of arrest is a ground for seeking transit
anticipatory bail.
Courts may show variance while dealing with serious and non
serious offences while granting transit anticipatory bail. Such
bail is purely granted on the discretion of the judge.
Transit bail is granted only for a limited period to enable the
accused to approach the court having regular jurisdiction to
seek bail.
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