The author of this post is Mr. Mohit Kandpal, student at National Law University, Orrisa.
Introduction
For the past sometimes, we have witnessed plenty of activism regarding the content over the internet. Be it the people getting offended over Tandav, the Amazon Prime web series, or be it the furor over the Greta Thunberg Toolkit leak, what remains common is numerous FIRs getting registered all over the country. Due to the global reach of the content, using the internet, the offense can be alleged at places that otherwise might have nothing to do with the person accused. While the Internet has enabled us to access the world, in turn, it has also provided the potential to the world, to encroach upon our rights and liberties. As it is well said, we live in a global world where your every action on the internet is being noticed and has its potential consequences.
This has brought to light the concept of ‘Transit Anticipatory Bail’ for the people named in such FIRs. For a person accused of a non-bailable offense in the State of their residence, an anticipatory bail application is moved under S. 438 of the Criminal Procedure Code, 1973 before the concerned High Court or Sessions Court to prevent the accused from getting into police custody. However, if the FIR has been filed in any state other than the state of residence or from where the accused has to be arrested, the question gets complex. Consider a situation, where a person is apprehending arrest from the police of some other state, the police might be knocking at their door any moment. At that moment, they obviously cannot approach the court having jurisdiction over the complaint, and therefore, they will have no option other than to get arrested and then apply for regular bail. In such a case where the accused apprehends arrest by the police of some other State, where the case is registered, in such a situation the accused moves a Transit Anticipatory Bail application. Although the Court might not have jurisdiction over the complaint registered against the applicant, this procedure is adopted to buy some time to approach the competent Court in whose jurisdiction the complaint is registered. There is no express provision under the Criminal Procedure Code regarding the grant of a Transit Bail and therefore the whole jurisprudence has evolved only through the judicial pronouncements. There has been no Supreme Court ruling on the issue to date and hence multiple anomalies exist in the views adopted by various High Courts on the issue. In this article, we shall be discussing the major questions surrounding transitory bail and the views adopted by the Indian Courts.
Conflict of jurisdiction and silence of legislation
As previously discussed regarding the absence of any express provision for Transit Anticipatory Bail, the question that arises here is of the jurisdiction of a Court to grant relief in such an application. Our criminal justice system works according to offense-based jurisdiction and not residence-based jurisdiction, which means the Court, where the offense takes place, shall be vested with the jurisdiction to provide relief. However, S. 438 of the Criminal Procedure Code speaks about “… direction for grant of bail apprehending arrest” which on an expansive and pro-liberty interpretation, by some High Courts have paved the path for grant of Transit Anticipatory Bails. While on strict interpretations, some High Courts have rejected such contentions.
The Delhi High Court has held that a Transit Pre-arrest Bail is allowed to the applicant for a certain period, enabling them to approach the Court having jurisdiction over the complaint. The emphasis by the Delhi High Court on the protection of personal liberty of the accused can be understood by another case of Transit Bail under S. 438 of the Criminal Procedure Code. In the instant case, the remedy has not been provided under S. 438. Since the crime had been registered in Uttar Pradesh wherein; the State Legislation had deleted the relief available under S. 438 through amendment for the accused persons of crimes in the State. The High Court, despite this, invoked its power under S. 482 to provide relief to the applicant and granted protection of 2 weeks from police custody.
Some other Courts such as the Bombay High Court, Gujarat High Court, Karnataka High Court, and the Kerala High Court have also had a similar pro-personal liberty opinion towards transit anticipatory bails in the cases where the arrest is to be conducted within the Court’s jurisdiction. Among these, the Kerala High Court has had a very peculiar opinion wherein while granting protection to the accused from police custody, it held that the protection shall be effective only against arrest within the State and not beyond the State.
While all these states have been holding an expansive and pro-liberty approach, the Full Bench of the Patna High Court has held otherwise. The court interpreted the phrases “the High Court” and “the Court of Session” used in S. 438 in a restrictive manner to signify specifically the Courts having territorial jurisdiction over the locale of the complaint.
An interesting question arises here that in quest of protecting personal liberty can the applicant approach the nearest competent Court? Answering this the Delhi High Court held that only the Court having jurisdiction over the ‘regular or bonafide place of residence of the applicant shall give the Transit Bail. Another crucial point of difference between a transit anticipatory bail and regular anticipatory bail is that unlike the latter the former is for a certain period, as specified by the Court, this time is provided solely as a remedy to enable the applicant to approach the Court having jurisdiction over the locale of crime and shall not result into any abuse of process of law or transgression into the jurisdiction of the Local Court within whose jurisdiction the crime has happened. This has been opined by the Calcutta High Court after discussing the issue at length and a similar approach has also been adopted by other courts while granting transit anticipatory bails. If the applicant fails to approach the competent Court having jurisdiction and causes inordinate delay in the same, then they might not be able to secure another transit bail in the matter, such a view was expressed by the Delhi High Court in a similar fact situation.
Conclusion
While the pro-personal liberty view of some High Courts might seem more convincing to the mind, on consideration of the Patna High Court’s interpretation of the language of S. 438. Thus, a serious conflict arises whether section 438 is to be interpreted literally or in light of the fundamental principle of protection of personal liberty. The silence of the legislation over the issue coupled with the lack of any authoritative pronouncement from the Supreme Court has resulted in this situation of anomaly and conflict between opinions of different High Courts. For the past some time, we have witnessed a surge in the number of FIRs being registered across the country against people over posts, tweets, web series, and other such acts over the internet. Taking these factors into consideration, it seems that it is appropriate time for Parliament to revisit S. 438 of the Criminal Procedure Code, to bring in an amendment to settle the conflict of jurisdiction. The simplest and most efficient solution to this problem can be the deletion of the word “the” from S. 438 which forms the basis of the Patna High Court’s view against the grant of Transit Bail.
Preferred Citation: Mohit Kandpal, A Conundrum of Personal Liberty – Transit Anticipatory Bail , The Criminal and Constitutional Law Blog, Published on 24th August 2021