What are the provisions of transit anticipatory bail?

The term transit anticipatory bail is not used much, but is an important provision under Sec. 438 of the CrPC, when a case is filed against a person in such jurisdiction of the state where he does not usually reside and is in some other state at the time of apprehending an arrest.

The phrase "transit anticipatory bail" came into notice through the bail granted by the Bombay High Court to Shantanu Muluk, an activist.

It is necessary to understand the difference between bail and anticipatory bail before understanding transit anticipatory bail. The regular bail petition is filed when the applicant is in police custody and is accused of a bailable offence whereas, anticipatory bail petition is filed before a Session Court or High Court when the applicant is apprehending that he might be taken to the police custody for a non-bailable offence.

What is transit anticipatory bail?

There is no specific concept called 'transit anticipatory bail' in CrPC. When a person is apprehending that he might be arrested by the police of the state where he resides, or any other state, he can proceed to get a 'transit anticipatory bail' granted.

In absence of transit anticipatory bail, the police of some other state can arrest a person from his residential state, for example, if the accused is at his residence in West Bengal, Bihar Police can arrest him from his residence and take him to Bihar and keep in custody.

In case of such an event, the only option left with the person is of ordinary or regular bail. The bail petition shall be filed in the Court where the case is registered.

What is the necessity of 'transit anticipatory bail' when there is already an anticipatory bail provision?

Imagine a case has been filed in Delhi against a person who lives in Mumbai. As per the rule, the petition for anticipatory bail is required to be filed at the Session Court or High Court of that jurisdiction, where the actual case has been filed. By the time the person arranges a lawyer in Delhi and apply for anticipatory bail, the Delhi police can reach and arrest him. However, this arrest is done following the prescribed rules and regulations for an arrest.

Therefore, the purpose of transit anticipatory bail is to grant bail to a person till the time he/she reaches the appropriate Court.

However, such anticipatory bail is subject to a certain condition that the accused has to co-operate in the investigation.

Once the person is arrested they have to be produced before the magistrate within 24 hours. They are thus produced by the police of the other state (that has registered the case) where the person has been arrested to get the transit remand. It may not be possible to produce the person within 24 hours sometimes too.

In which cases the transit anticipatory bail can be sought?

It will be easier to understand if we quote some real-life cases where transit anticipatory bail is granted -

Case 1: Vijay Latha Jain vs State 2007 SCC Online Del 1723, where the petitioner was granted transit anticipatory bail from Delhi High Court enabling the accused to have "recourse to remedy available" in the court where the complaint case was registered.

Case 2: In the case of N K Nayar and others vs State of Maharashtra(1985), the division bench of the Bombay High Court held that a court has jurisdiction to hear an application of anticipatory bail under Section 438 of the Code of Criminal Procedure, if the applicant is apprehending his arrest within the said jurisdiction.

Case 3: In the recent case of Priya Mukherjee vs. the State of Karnataka, the High Court of Karnataka while granting bail to Priya Mukherjee, accused of TRP scam, said that, if the personal liberty of an individual is in danger, in order to secure the fundamental right granted under Article 21 of the Constitution of India, the individual can seek for transit anticipatory bail.

Case 4: Honey Preet Insan vs. State 2017 is another popular case, where Honey Preet tried to get the transit anticipatory bail from Delhi High Court, though she was a resident of Haryana, where the case had its jurisdiction. The Delhi Court however denied the bail stating the reason that the provision is for secured the ones in need, not to camouflage in order to evade the judicial proceeding.

Transit Anticipatory Bail is Subject to Its Own Conditions

Under the petition or application for the transit anticipatory bail, the applicant has to undertake that he or she shall be present whenever the judicial proceeding demands and co-operate with the Court.

Moreover, transit anticipatory bail has a time limit. Before the expiry, the accused has to appear before the official in the jurisdiction where the case has been filed.

The provisions and procedure of the transit anticipatory bail shall be regulated under the provision of Sec. 438 of the CrPC.