What is Transit Anticipatory Bail And Why is it Dangerous?

Transit anticipatory bail for a limited period raises significant concerns, at the cost of upholding the liberty of a person accused of serious and heinous crimes.

A fundamental question that arises: to what extent is there misuse by individuals evading arrest in a democracy such as India, where the National Crime Records Bureau Report clocked a total of 58,24,946 cognisable crimes comprising 3,561,379 Indian Penal Code (IPC) crimes and 2,263,567 special and local laws crimes in 2021? Did the judgment account for rules of criminal jurisprudence regarding territoriality?

In an elaborately described illustration, the judgment in the case of Priya Indoria, contemplates a situation where a person is assaulted with an iron rod in Goa and the assailant thereafter travels to Odisha for work.

The family of the injured lodges a first information report (FIR) at Bicholim Police Station against the assailant who is now in Odisha. With full knowledge of the fact that he has assaulted the injured in Goa, he approaches the sessions court in Odisha as he is apprehending arrest.

The judgment in the case of Priya Indoria, contemplates a situation where a person is assaulted with an iron rod in Goa and the assailant thereafter travels to Odisha for work.

The maintainability of such an application for protection being granted by a court different from the one having jurisdiction of the case was the issue at hand before the Supreme Court.

In Priya Indoria, the Supreme Court held that such a person could be granted protection from arrest for a limited period of time for approaching the ‘appropriate court’ for the grant of a ‘regular’ anticipatory bail.

The dispute between a husband and wife led to the filing of the present appeals where the appellant-wife had lodged an FIR in Rajasthan, alleging harassment for dowry by the husband and his refusal to consummate the marriage.

Subsequently, the husband, along with his family, was granted protection from arrest by the Bengaluru sessions court, where the accused was residing. The petitioner-wife challenged the said Order before the Supreme Court to determine the jurisdiction of a Bengaluru court to grant anticipatory bail in an FIR registered in Rajasthan.

What is missing from the 29-page judgment is a consideration of the probability of blatant abuse of the law by those accused of heinous crimes while analysing the grant of ‘transit’ anticipatory bail for a limited time without perusing the entirety of the crime.

A cursory glance at the offence was never the intention of the legislature, though the jurisprudence on bail has liberalised towards personal liberty over the recent years.

Prior to 1969, the concept of anticipatory bail was an uncharted territory. The 41st Law Commission Report recommended the introduction of protection from arrest due to the increase in the number of immediate arrests owing to false cases.

Subsequently, the 48th Law Commission Report also recommended the introduction of the provision of anticipatory bail on the basis of the recommendation made by the previous commission. It was specifically observed that though the suggestion was useful, it is required to be exercised in very exceptional cases.

A cursory glance at the offence was never the intention of the legislature, though the jurisprudence on bail has liberalised towards personal liberty over the recent years.

Demarcation of territories into states and further sub-divisions into cities and districts, and the establishment of police machinery by the Constitution were done with a view to ease the administrative system and ordain a sense of hierarchical authority controlled by the State.

This is precisely why states were at liberty to carry out their respective amendments to the Code of Criminal Procedure, 1973 (replaced by the Bharatiya Nagarik Suraksha Sanhita, 2023 or BNSS) in order to adopt a mechanism befitting them and their administrative needs.

However, in Priya Indoria, the Supreme Court felt differently. What weighed with the court was primarily the fact that interpretation of all statutes should in all circumstances be favorable to personal liberty, subject to fair and effective administration of justice.

Priya Indoria has attempted to draw a parallel between the concept of ‘transit anticipatory bail’ with the idea of ‘transit remand’, essentially contemplated by the draftsmen of the erstwhile Criminal Procedure Code (now Bhartiya Nagarik Suraksha Sanhita, 2023) upon arrest and not otherwise.

Production of a person before the nearest magistrate upon arrest, before such magistrate grants transit remand to the court having jurisdiction is purposive to the extent of preventing physical abuse on such arrest of such person.

But equating the provision of transit remand to the ability of the court of session and the high court to grant transit pre-arrest bail is especially flawed on more than just one aspect.

The judgment allows the accused to approach a court of sessions or the high court where they are ‘residing’, not being the court within whose jurisdiction the first information report was lodged, to obtain a pre-arrest bail.

What did not fall for consideration though was the determination of bona fide residence of the accused. A person named in an FIR lodged in Meerut, working from home and living on rent in Mumbai, for a company situated in Delhi, can approach multiple courts for a grant of transit anticipatory bail, virtually enabling him to choose a court of his liking.

While the court contemplated a situation where young couples migrate to cities for better job opportunities, it did not consider what material courts should look at for considering proof of residence. That being so, it essentially enables the accused to show no substantial grounds for approaching a particular court for seeking pre-arrest bail leading to forum shopping— a choice to opt for a favorable Bench with a ‘liberal approach’.

Usage of ‘the’ before the words ‘high court’ or ‘court of session’ in Section 438 of the erstwhile CrPC was intended to connote a definite article. Judicial interpretation of the word ‘the’ was well explained by the Supreme Court in Ishar Alloys which was followed subsequently in Canon India.

‘The’ was held to have a particularising effect to denote a particular thing or a person and was a definite article. If the Parliament intended that the accused could approach any court under Section 438, then it would have used the word ‘any’ instead of ‘the’.

The Parliament aimed to circumscribe the jurisdiction of the sessions court or the high court to the place where the offence was committed, therefore the operation of the Order was limited to the jurisdiction of the court granting the Order in respect of that offence.

‘The’ was held to have a particularising effect to denote a particular thing or a person and was a definite article.

Before granting ‘transit’ anticipatory bail, the Supreme Court held that it was imperative for the courts to issue notice to the public prosecutor and the investigation officer in order for them to be heard.

The situation on the ground is starkly different. With not enough public prosecutors to handle day-to-day cases and investigation officers having to deal with the ongoing investigations and court-mandated presence in other cases, to require them to attend court in a different state is no easy task.

Additionally, the FIRs are lodged in the local language of the place of commission of the offence. An investigating officer from Delhi, having limited linguistic expertise, would have to interpret and understand a first information report lodged in Tamil in Tirunelveli.

In a hypothetical situation, an accused person having several FIRs lodged against him in various states for different offences, on the strength of one transit anticipatory bail Order, would approach another court for another transit anticipatory bail Order in respect of a different FIR.

But what happens when one court allows his request for grant of transit anticipatory bail, while another rejects it? The possibility of a judicial tug-of-war resulting in divergent views would consequently benefit the accused person, weakening the investigation and also resulting in a multitude of litigation across various states.

Priya Indoria virtually left no choice for the courts but to grant transit anticipatory bail to persons without delving into the merits of the case keeping in mind personal liberty.

In recent times, the Supreme Court has encouraged the setting up of virtual courts throughout the country in a bid to keep up with changing times and technology.

With the Bombay High Court, in Hema Ahuja, mandating all courts to video record cases under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, it would not be implausible to consider mandating accused persons seeking anticipatory bail to appear virtually in courts having jurisdiction over their matter.

Thus, a rather effortless and uncomplicated approach would be better than allowing the accused to approach another court for grant of transit anticipatory bail.

Before granting ‘transit’ anticipatory bail, the Supreme Court held that it was imperative for the courts to issue notice to the public prosecutor and the investigation officer in order for them to be heard.

The Bombay High Court in Arjun Kishanrao Malge considered minor victims' right to participate in the judicial process. However, Priya Indoria does not protect the interest of minors specifically since one of the parameters for grant of transit anticipatory bail is notice to the public prosecutors and not the victims.

Priya Indoria marks a pivotal moment in the criminal law jurisprudence towards widening individual rights and liberties. Despite the judgment being rendered in 2023, the BNSS which was enforced in the month of July 2024 conspicuously omitted the aspect of transit anticipatory bail, which is telling on the intention of the legislature to purposefully limit the territorial operation of an anticipatory bail Order to the courts having jurisdiction.

The omission could be considered deliberate or it could be a reproduction of the old law. It remains to be seen how courts interpret grant of transit anticipatory bail in reference to the BNSS.

Vilasini Balasubramanian practises law before the Bombay High Court, with a keen interest in criminal law and gender equality.