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TRANSIT ANTICIPATORY BAIL

The concept of transit anticipatory bail' as a necessary legal innovation has

emerged to address the complexities arising from cross-jurisdictional arrests.
The issue is faced in cases where the arrest is made beyond the
place/jurisdiction where the offense is committed.

The words 'transit bail' or 'transit anticipatory bail' are neither defined
under the BNSS or Cr.P.C. or any other law in force, nor do they find any
specific reference under the law of criminal procedure. However, the roots of
this concept can be traced under the BNSS (Cr.P.C).

 Meaning of "Transit Bail"

 Black Law Dictionary defines the word "In Transitu" as on the way/passage
or while passing from one person or place to another. Thus, 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.
Put simply, a transit anticipatory bail is a temporary protection or relief
granted to a person, who is a resident in a particular State but is apprehending
arrest by the police in another State, and needs time to approach that
jurisdictional court for appropriate relief, without being arrested during the
transitory period.

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 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.

 Purpose: 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.

 The issue that have mostly cropped up is “Whether Section 482 BNSS
(Section 438 Cr.P.C.) 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?"

There were differing opinions among the High Courts on whether transit
anticipatory bail can be granted by a court other than the one in the jurisdiction
where the offence occurred.
i. One opinion was that Transit Anticipatory Bail can be granted by a court not
having jurisdiction to try the case but the Court must examine if the

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applicant is a bona-fide resident within its jurisdiction, in order to avoid

forum shopping.
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 Section
438 Cr.P.C. denied transit bail to her by laying down the following observation:
"Whenever an application for anticipatory bail is made before a 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.”

ii. Another opinion of certain High Courts was that Section 482 BNSS (Section
438 Cr.P.C) 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.

iii. Third Opinion was that Transit bail can only be for a limited period by High
Court (not by COS) so that the applicant can approach the appropriate
forum. Therefore, the exercise of Jurisdiction of anticipatory bail by any other

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High Court 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 of the court within
which offence is alleged to have been committed.
Thus, 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.

Finally the matter has been settled by the hon’ble Supreme Court in the
landmark judgment of Priya Indoria v. State of Karnataka 2023 LiveLaw
(SC) 996, the apex 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.
The Court laid down the conditions for the grant of limited anticipatory bail
as follows:
i. Notice to Investigating Officer and Public Prosecutor: Before passing an
order of limited anticipatory bail, the investigating officer and public prosecutor
involved in the FIR must be issued notice on the first day of the hearing. The
court retains discretion to grant interim anticipatory bail in appropriate cases.
ii. Reasoned Order: The order granting limited anticipatory bail must provide
detailed reasons explaining why the applicant fears an inter-state arrest and the
potential impact of such protection on the ongoing investigation.

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iii. Offence not excluded from scope of anticipatory bail by state amendment:
Jurisdiction Clarification: 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. Grounds to be pleaded: The applicant seeking anticipatory bail must convince
the court of their inability to seek relief from the court with territorial
jurisdiction. Grounds for such requests may include immediate threats to life,
violations of personal liberty, arbitrary actions, or medical status/disability.
v. Only in Exceptional and compelling Circumstances: The power to grant
extra-territorial anticipatory bail is reserved for exceptional and compelling
circumstances. The court emphasizes that this authority should only be
exercised when the denial of such relief would cause irreparable harm to the
applicant.

There should be some territorial nexus between the accused and the
Court. The Court also drew attention to the potential abuse of the legal process
and issue of forum shopping. The accused cannot travel to another state only
to seek anticipatory bail. To address this, the court asserted the necessity for
establishing a territorial connection or proximity between the accused and the
court's jurisdiction where anticipatory bail is sought.

Another issue which was clarified by the Supreme Court in Priya Indoria’s
case was that both, High Courts and Sessions Courts possess the power to
grant Transit Anticipatory Bail in situations where an FIR has been filed
against the accused in a different state, however the same is to be exercised

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sparingly and in exceptional circumstances i.e. denying transit bail or interim

protection to enable the applicant to make an application under section 438
(Section 482 of Bhartiya Nagarik Suraksha Sanhita) would cause
irremediable and irreversible prejudice to the applicant.

Conclusion: Therefore, in the light of these cases and discussions, if a person

commits an offence in one State and the FIR is lodged within the jurisdiction
where the offence was committed but the accused resides in another State he
can approach the Court in the other State and seek transit anticipatory bail of
limited duration. The accused could approach the competent Court in the State
where he is residing or is visiting for a legitimate purpose and seek the relief of
limited transit anticipatory bail although the FIR is not filed in the territorial
jurisdiction of the District or State in which the accused resides, or is present
depending upon the facts and circumstances of each case.

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