Bail is considered one of the most important concepts of criminal procedure. It provides a liberty to the arrested person to not remain detained in legal custody or custody of the police authorities. The provisions relating to rules and procedures related to bail are given under Code of Criminal Procedure. Transit bail is a concept that is not codifies in the Indian laws as of now but has found its way through legal precedents and judicial practice. Transit bail refers to the concept of bail wherein the person who is trying to get bail is in fear or apprehension of getting arrested by the police authorities of any other state rather than the state where that person resides.
Transit bail is usually taken as a safety measure against a transit remand which is ordered by the Judicial Magistrate of a State. The Judicial Magistrate orders the police of other state to take that person in custody for the purpose of remand. If the arrestee is in apprehension of getting arrested can apply for getting transit bail to prevent arrest. The procedure of filing for this bail is the same as of the anticipatory bail application. In this situation also, the arrestee has the rights to know all the grounds for which he/she is getting arrested and have right to legal counsel and to all fundamental rights.
For example: Saksham is resident of Uttar Pradesh and has an apprehension that a case might be registered against him in Rajasthan. In normal circumstances, Saksham would have to travel to Rajasthan to get bail as Rajasthan Court is only entitled to grant bail. But, if Saksham is in apprehension that Rajasthan police might arrest him in UP, he can approach the UP court for grant of transit anticipatory bail. The local court provides for a limited protection till the time Saksham approaches the Court of Gujrat for bail.
Transit anticipatory bail is granted for the purpose so that the person can approach the appropriate court in case he is in apprehension that he might get arrested by the police. The bail is given only on the condition that the accused cooperates with the police during the investigation.
Use of Transit Bail: In absence of transit bail, the police can arrest that person without giving them a chance of applying for bail. The only option left for that person will be that will be to apply for regular bail once he is arrested and taken to the state where the case against him is registered. Transit bail is mainly used so that the people can be given some chance of being heard by the Court before being arrested, so the person has the right to apply for transit bail, so that if the people want to arrest the person, he will get out on bail. It is a remedy provided to the people of India from being arrested in situation where the case is registered in some other state and not the state in which that person resides.
Statutory Provision that is Relevant to Transit Bail: Section 438 of the CRPC deals with provision related to grant of bail to any person who is in apprehension of arrest. This provision does not specifically mention provision related to transit bail, but it specifies that if any person is apprehending arrest in relation to any suit, then he/she can apply to Court for bail. If the Court thinks fit, direct the authorities that in event of arrest, that person should be released on bail.
While the section 438 does not specifically talk about transit bail, but the Courts have granted this bail to people who feared arrest.
It clear that grant of Transit bail is not a clear formula and cannot be codified into specific rules, grant of transit bail depends on the circumstances of the case. Therefore, the following propositions can be considered to understand the grant of transit bail:
- Core provision specified under India law is Section 438 of the Code of Criminal Procedure.
- As the law on transit bail is mostly judicially interpreted, so High Court decisions and observations depend on the circumstances and facts of the case. So, a specific provision for transit bail to be made is a complex process and no straight principle can be formed that might apply in every case.
- While taking into considerations the applications of transit bail the court must take into consideration that there is no manipulation or intention of playing with the jurisdiction of the court.
- Due process of law must not be abused while granting transit bail.
- Apprehending personal liberty of an individual due to apprehension of arrest is considered as a ground for grant of transit bail.
- Court can show variance in grant of bail based on the seriousness of the offence and it is purely on the discretion of the Judge.
- Transit bail is only granted for a specific period so that the person can approach the relevant Court for grant of regular bail.
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