Bail is a commonly known and well established concept of the Code of Criminal Procedure which provides an arrested person with the liberty of not remaining detained. The working concept of Bail is enshrined in the Code and explicit and specific with regards to the procedures.

However, when we talk about 'transit bail', we actually refer to a concept of bail wherein the person seeking the bail is apprehensive of being arrested by the police officials of another State rather than the State where he resides or is situated. This concept of transit bail is not codified in Indian law, but has found its identity through judicial practice and legal precedent, which is one of the remarkably dynamic features of the Indian legal system where the judge-made law, i.e., precedent, is also binding.

In the present times, the concept of transit bail or transit remand is on the rise, especially due to the arrest of Disha Ravi. In the said case, the transit bail was applied for from the Delhi Court, but from the Bengaluru jurisdiction. Although the concept isn't entirely novel in the strictest sense, it is necessary to understand the same in order to understand the presently prevailing legal scenario in the nation.

Transit bail is usually sought against a transit remand order wherein the Judicial Magistrate of one State permits the police of another State to arrest the person and the said person is accordingly put in police custody solely for the purpose of remand.

Once an arrestee is apprehending an arrest in another State, the arrestee can apply for a transit anticipatory bail to prevent such arrest. The procedure to be followed in this regard is exactly the same as of any other anticipatory bail application. Even in this case, the arrestee has the rights to be informed about the grounds of arrest, to hire a lawyer or take assistance of any legal aid and to all other fundamental rights.

All of these required protective measures for the arrestee are mandatory and shall be strictly followed in compliance with Article 22 of the Constitution of India and Sections 41-A to 41-D of the Code of Criminal Procedure.

As regards the procedural aspects of Transit, when a person is apprehending such an arrest in a different State, the person is required to travel to the nearest competent court of the State to obtain his bail. Transit bail is majorly connected to anticipatory bail. Since the arrested person is required under the law to be presented before a magistrate within 24 hours of arrest, they are produced by the police of the other state – which has registered the case – before the nearest magistrate of the State where the person has been arrested to get a transit remand.[1] In Vijay Latha Jain v. State[2], the Delhi High Court granted transit bail to the petitioner to enable them to have a "recourse to remedy available” to them in the court where the complaint case is registered.[3]

When we look into the jurisprudential aspect of bail in general, the entire path taken by the judiciary since years seems to be quite topsy-turvy. The jurisprudential picture reflects that “bail is the rule and jail is the exception”. Consistent adherence to this principle by the judges has created difficulties the criminal authorities with regards to penalizing people for their crimes. All across the country, there have been various reasons on the basis of which bail is granted; some cases are such where the grant of bail may seem unreasonable to a few and reasonable to others.

This variation of perception and reasoning and rationale of the judges while making decisions is primarily because deciding a bail plea needs to be finely balanced between personal liberty and public well-being. It is the realist school of Jurisprudence significantly propounded by Oliver Wendell Holmes which germinated and developed the concept of transit bail. Realism is one of the basic methods through which novel concepts of law pave their way into legal theories and practice and get identified as procedural concepts.

In the case of Sanjay Chandra v. CBI[4], the Supreme Court made a liberal interpretation of the bail laws basing them on the premise of presumption of innocence. The Apex Court considered the personal liberty of a citizen to be of prime and paramount importance among all the fundamental rights. In Honey Preet Insan v. State[5], Honey Preet Singh filed a transit anticipatory bail application. Preet, generally a resident of Haryana had pursued transit bail from a Delhi Court. While analysing the scope and operation of Section 438 of the Cr.P.C and the concept of transit anticipatory bail, the Delhi High Court rejected her plea for transit bail with 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.”

The most recent update regarding the implementation of a transit bail is with regards to the Toolkit Case. The Bombay HC recently granted transit anticipatory bail to Mumbai-based lawyer Nikita Jacob in connection with the farmers' protest “toolkit” case in which environmental activist Disha Ravi was arrested from Bengaluru last week.[6] In this case, Nikita Jacob will be released on a personal bond in case she is arrested. This is primarily the reason behind the hype over transit remand and transit anticipatory bail.

It is to be noted that transit bail is protection from arrest for a certain definite period as granted by the Court granting such transit bail. The mere fact that an accused who has obtained transit bail does not mean that the regular court, under whose jurisdiction the case would fall, would extend such transit bail and would convert such transit bail into anticipatory bail. Upon the grant of transit bail, the accused person, who has been granted such transit bail, has to apply for anticipatory bail before the regular court.

The regular court, would consider such anticipatory bail, on its own merits and shall decide such anticipatory bail application. Therefore, it could be easily said that transit bail is a temporary relief which an accused gets for certain period of time so that he/she could apply for anticipatory bail before the regular court.

End-Notes:

1. Sofi Ahsan, 'Transit remand, bail explained: Legal provisions invoked in Greta Thunberg 'toolkit' case', February 19, 2021
2. 2007 SCC Online Del 1723
3. https://www.livelaw.in/know-the-law/what-is-transit-anticipatory-bail-when-can-transit-bail-be-granted-170161
4. (2012) 1 SCC 40
5. 2017 SCC Online Del 10690
6. Swati Deshpande, 'Toolkit row: HC gives 3-week transit bail to Nikita, cites NBW', available at https://timesofindia.indiatimes.com/india/toolkit-row-hc-gives-3-week-transit-bail-to-nikita-cites-nbw/articleshow/81081103.cms

Written By: Dr Farrukh Khan is an Advocate and Managing Partner of Law Firm- Diwan Advocates. Somya Mishra & Abhigyan Choudhary are Advocates, working with Diwan Advocates.