Mumbai: Can transit pre arrest bail be granted to an accused? Three bench judge of Bombay HC to decide

A division bench of justices SS Shinde and Sarang Kotwal referred the issue to a full bench on May 5, observing that it involved the liberty of citizens

Urvi MahajaniUpdated: Wednesday, May 11, 2022, 09:04 PM IST
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Can transit pre arrest bail be granted to an accused by a court when a case is registered outside its jurisdiction? A full bench of the Bombay High Court comprising three judges will decide on the issue.

A division bench of justices SS Shinde and Sarang Kotwal referred the issue to a full bench on May 5, observing that it involved the liberty of citizens. The court also noted that, while deciding on the issue, it would have to address difficulties faced by a probe agency and also ensure the provision (of granting transit bail) is not misused.

The court said the matter had to be heard and decided by a full bench, as there was a “vertical rift in the views expressed by different high courts”.

The issue came for consideration before the division bench after single judge – justice Revati Dere – referred the matter to a division bench in 2018 to decide whether transit anticipatory bail can be granted for short duration by courts in cases registered outside its jurisdiction.

She referred the matter since she opined that the transit anticipatory bail should be granted. However, an earlier order by another single judge had opined that such a transit anticipatory bail should not be granted.

Due to conflict in opinions of both the single judges, the matter was referred to a division bench.

On May 5, the HC said it was an important issue that involved the liberty of citizens. “The court will have to balance the difficulties of an investigating agency. The provision can be misused either by the accused or even the complainant,” the court said in its 37-page order.

“In a given case, only with a view to harass somebody, the informant may choose to file an FIR at a faraway place in India, by showing some part of cause of action there. In such a case, the accused would require some protection to approach that court,” it added.

The court, however, said that at the same time there were chances of misuse by some accused by obtaining transit bail and then buying some extra time. “Both these mischief must be checked while considering the issue,” it said.

“We are, therefore, of the view that the matter involves the larger interest of citizens and hence, can be more advantageously heard by a larger bench,” said the HC.

The central and the state government, represented by Additional Solicitor General Anil Singh and Advocate General Ashutosh Kumbhakoni, had opposed saying that orders granting transit bail for a short duration cannot be passed, as legally they are not sustainable and neither a sessions court nor a high court in one state can give protection from arrest in relation to an offence registered in some other state.

Arguing on favour of such transit anticipatory bails, senior counsels Amit Desai and Mihir Desai had said that such orders (granting transit bails) can be passed in the interest of justice. A reasonable apprehension of any person of his or her arrest should be the guiding factor while passing such an order and not territorial jurisdiction.

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