Transit Anticipatory Bail

• 23 Nov 2023

For Prelims: First Information Report (FIR), Anticipatory Bail,Bail and its Types, Code Of Criminal Procedure (CrPC), 1973, Article 21

For Mains: Protection of Fundamental Rights in Criminal Justice Process, Judiciary, Constitutional Protection, Types of Bail.

Source: IE

Why in News?

Recently, the Supreme Court (SC) of India in the case of Priya Indoria vs State of Karnataka and Ors, 2023 ruled that a Sessions Court or the High Court in a state can grant transit anticipatory bail to an accused though the First Information Report (FIR) is registered outside their jurisdiction.

• The SC emphasizes the constitutional imperative of protecting citizens' right to life and personal liberty as enshrined in Article 21 of the Constitution of India.

Note:

• Transit anticipatory bail serves as a form of protection for the accused against arrest until they can reach a court with territorial jurisdiction for the alleged offense.
  • The term "transit anticipatory bail" is not explicitly defined in the Code Of Criminal Procedure (CrPC) or any other legislation.
  • The SC introduced the concept of transit anticipatory bail in the case of State of Assam v. Brojen Gogol in 1998.
• This type of bail provides equitable and interim relief, particularly for individuals residing in a different state, allowing them to seek anticipatory bail.

What is the SC’s Ruling on Transit Anticipatory Bail?

• SC rules that the High Court/Sessions Courts should grant transit anticipatory bail in the form of interim protection under Section 438 of the Code Of Criminal Procedure (CrPC), 1973 in the interest of justice concerning FIR registered outside the territorial jurisdiction of the said court,
  • SC highlighted that an absolute bar on jurisdiction could lead to unjust consequences, especially for bona fide(genuine) applicants facing wrongful, mala fide, or politically motivated prosecution.
• The SC noted transit anticipatory bail should be granted in "exceptional and compelling circumstances only" to prevent irreparable harm to the applicant.
• The SC Laid Down Conditions for Interim Protection:
  • Notice to the investigating officer and public prosecutor is mandatory during the first hearing.
  • The order granting limited relief must explicitly record reasons explaining why the applicant anticipates an inter-state arrest and the potential impact of such protection on the ongoing investigation.
  • The applicant must satisfy the court regarding their inability to seek anticipatory bail from the court with territorial jurisdiction over the FIR.
    • The satisfaction could be based on apprehension of threats to life or personal liberty in the jurisdiction where the FIR is registered, concerns about arbitrariness, or medical reasons.
• The ruling acknowledges the possibility of accused individuals choosing a favourable court for interim protection.
  • To prevent abuse, the court highlights the importance of a territorial connection between the accused and the court's jurisdiction.

What is Bail and What are its Types?

• Definition:
  • Bail is the conditional/provisional release of a person held under legal custody (in matters which are yet to be pronounced by the Court), by undertaking a promise to appear in the Court as and when required.
  • It signifies a security/collateral deposited before the Court for release.
    • In the Supt. and Remembrancer of Legal Affairs v. Amiya Kumar Roy Choudhry (1973) case, the Calcutta High Court explained the principle behind giving Bail.
• Types of Bail in India:
  • Regular Bail:
    • It is a direction given by the Court (any Court within the country) to release a person who is already under arrest and kept in police custody.
      • For such Bail, a person can file an application under Sections 437 and 439 of the Code Of Criminal Procedure (CrPC), 1973.
  • Interim Bail:
    • Bail granted for a temporary and short period by the Court till the application seeking Anticipatory Bail or Regular Bail is pending before a Court.
  • Anticipatory Bail or Pre-arrest Bail:
    • It is a legal provision that allows an accused person to apply for bail before being arrested. In India, pre-arrest bail is granted under section 438 of the CrPc, 1973.
    • It is issued only by the Sessions Court and High Court.
      • The provision of pre-arrest bail is discretionary, and the court may grant bail after considering the nature and gravity of the offence, the antecedents of the accused, and other relevant factors.
      • The court may also impose certain conditions while granting bail, such as surrendering the passport, refraining from leaving the country or reporting to the police station regularly.
  • Statutory Bail:
    • The remedy of statutory bail, also known as default bail, is distinct from bail obtained in the ordinary procedure under CrPC Sections 437, 438, and 439.
    • As the name implies, statutory bail is given when the police or investigating agency fails to file its report/complaint within a certain time frame.
      • This is enshrined in Section 167(2) of the CrPC.

Legal Insights: Transit Anticipatory Bail

https://www.drishtijudiciary.com/en