Transit Anticipatory Bail in India: Constitutional Imperatives, Jurisdictional Nuances, and Emerging Jurisprudence

Transit Anticipatory Bail in India: Constitutional Imperatives, Jurisdictional Nuances, and Emerging Jurisprudence

Introduction

The jurisprudence of anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 (“CrPC”) has evolved as a critical safeguard of personal liberty. A more recent off-shoot—transit anticipatory bail—has gained prominence amid increasing inter-State mobility of both citizens and investigative agencies. Transit anticipatory bail refers to a short-term protective order granted by a High Court or Court of Session outside the territorial jurisdiction of the First Information Report (“FIR”) to enable the applicant to approach the competent court in the State where the offence is registered.[1] Despite its practical utility, the concept remains uncodified, thereby raising doctrinal and procedural questions that merit rigorous analysis.

Statutory and Constitutional Background

Section 438 CrPC

Section 438 empowers the High Court or Court of Session to direct that, in the event of arrest, an applicant shall be released on bail. The section is conspicuously silent on territorial limits, leading to divergent judicial responses when jurisdictional conflicts arise.[2]

Constitutional Matrix

  • Article 21: Protection of life and personal liberty.
  • Article 14: Equality before law—used by courts to justify uniform access to pre-arrest remedies across State lines.[3]
  • Article 39-A: Directive Principle mandating equal access to justice, invoked to constitutionalise transit relief.[4]

Evolution of Transit Anticipatory Bail

Early Judicial Recognition

While anticipatory bail was constitutionally endorsed in Gurbaksh Singh Sibbia v. State of Punjab (1980),[5] explicit reference to transit relief appeared much later. High Courts began granting time-bound protection where an accused was physically present within their territory but faced imminent arrest from another State police force.[6]

Supreme Court Clarification in Priya Indoria v. State of Karnataka (2023)

The Supreme Court delivered the first authoritative pronouncement on the subject, holding that:

“…the accused cannot seek full-fledged anticipatory bail in a State where he is a resident when the FIR has been registered in a different State. … he would be entitled to seek a transit anticipatory bail from the Court of Session or High Court in the State where he is a resident which necessarily has to be of a limited duration….”[7]

The Court thus conferred a “constitutional imprimatur” on the evolving practice, anchoring it firmly in Articles 14 and 21.

Divergent High Court Approaches

Despite Priya Indoria, High Court practice remains heterogeneous. Key strands are analysed below.

Restrictive Jurisdictional View

  • Nikita Jacob v. State of Maharashtra (2021, Bombay HC): The Court initially questioned its own jurisdiction, emphasising that Section 438 powers should normally be exercised by the court within whose territory the offence was registered.[8]
  • Ajay Agarwal v. State of U.P. (2022, Allahabad HC): Recognised absence of statutory definition but maintained that ordinary anticipatory bail ought to be sought from the competent State; nonetheless granted fifteen-day transit bail to protect liberty.[9]

Liberal Protective Approach

  • Manda Suresh Parulekar v. State of Goa (2023, Bombay HC): Granted four-week transit bail, stressing the comity of courts and Article 21.[10]
  • Ku. Sabinaz v. State of M.P. (2019, MP HC): Relied on a Division Bench decision to allow one-month transit bail, recognising inter-State investigative powers.[11]
  • Nil Prafulbhai Balakia v. State of Gujarat (2020, Gujarat HC): Extended transit bail citing COVID-19 constraints, demonstrating pragmatic flexibility.[12]

Intermediate or Conditional Stance

Several decisions, including Tarun Gawri v. State of U.P. (2023) and Shalini Jain v. State of Delhi (2024), adopt a balanced posture—granting brief protection while underscoring the primacy of the jurisdictional court.[13]

Analytical Issues

(1) Territorial Jurisdiction under Section 438

The interpretive dilemma stems from the absence of an explicit territorial qualifier in Section 438. A purposive reading—consistent with Article 21—favours an expansive jurisdiction so long as the threat of arrest materialises within the forum State.[14] Conversely, a strict textualist view cautions against judicial overreach that could undermine comity and lead to “forum-shopping.” The Supreme Court in Priya Indoria harmonised these positions by limiting the duration of relief.

(2) Duration and Conditions

Case law uniformly characterises transit anticipatory bail as time-bound. Typical durations range from one week to four weeks, calibrated to enable the applicant to approach the competent court. Conditions usually mirror those in Section 438(2) CrPC—such as cooperation with investigation and non-tampering with evidence.

(3) Constitutional Rationales

  • Access to Justice: Without transit protection, an out-of-State accused may face arrest en route to seek anticipatory bail, effectively negating the remedy.[15]
  • Right to Travel: Liberty of movement under Article 19(1)(d) indirectly supports the need for safe passage.
  • Public Interest: Courts impose stringent conditions to prevent abuse, aligning with the balancing test articulated in Sushila Aggarwal v. State (NCT of Delhi) (2020).[16]

(4) Interface with Investigative Powers

Police may arrest an accused outside the investigating State pursuant to Sections 79 and 80 CrPC (execution of warrants). Transit anticipatory bail functions as a constitutional check against arbitrary or premature arrests that may otherwise occur before the accused can access the competent forum.

Comparative Analogy: Freezing Orders under Section 102 CrPC

In Teesta Setalvad v. State of Gujarat (2017), the Supreme Court expanded police powers to freeze bank accounts without notice, yet underscored judicial oversight to prevent misuse.[17] A similar equilibrium is sought in transit anticipatory bail: immediate police powers are balanced by provisional judicial protection safeguarding liberty.

Synthesis and Proposed Framework

  1. Threshold of Apprehension: Applicant must establish a reasonable belief of imminent arrest, supported by material such as FIR copy, summons, or credible threat.
  2. Forum Competence: Any High Court or Sessions Court where the applicant is physically present may entertain the plea, provided relief is strictly transitory.
  3. Duration: Orders should not ordinarily exceed two to four weeks unless exceptional circumstances (e.g., health or pandemic restrictions) justify longer periods.
  4. Conditions: Courts should impose Section 438(2) safeguards and may direct the applicant to share itinerary and contact details with the investigating agency.
  5. Comity Clause: Order must explicitly state that the competent court in the investigating State shall adjudicate regular anticipatory bail on its own merits, without influence from the transit order.

Conclusion

Transit anticipatory bail has transitioned from an ad hoc judicial innovation to a constitutionally endorsed mechanism, particularly after Priya Indoria. While statutory amendment to Section 438 CrPC could clarify territorial scope, current jurisprudence—rooted in Articles 14, 21 and 39-A—adequately empowers courts to balance personal liberty with investigative efficacy. Uniform adoption of the proposed framework would foster doctrinal coherence, minimise forum-shopping, and fortify the right to access justice across the federal landscape of India.

Footnotes

  1. Definition articulated in Amita Garg v. State of U.P. (2022 SCC Online ALL 463).
  2. Text of Section 438 CrPC.
  3. Priya Indoria v. State of Karnataka, 2023 SCC OnLine SC 1484 (“Priya Indoria”).
  4. Ibid., ¶ 45.
  5. (1980) 2 SCC 565.
  6. See, e.g., Capt. Satish Kumar Sharma v. Delhi Administration, ILR (1990) 1 Del 203.
  7. Priya Indoria, supra note 3, ¶ 45.
  8. Nikita Jacob v. State of Maharashtra, 2021 SCC OnLine Bom 13919.
  9. Ajay Agarwal v. State of U.P., order dated 25.07.2022 (ALL HC).
  10. Manda Suresh Parulekar v. State of Goa, 2023 SCC OnLine Bom 1568.
  11. Ku. Sabinaz v. State of M.P., 2019 SCC OnLine MP 1615.
  12. Nil Prafulbhai Balakia v. State of Gujarat, 2020 SCC OnLine Guj 3409.
  13. Tarun Gawri v. State of U.P., order dated 31.01.2023; Shalini Jain v. State of Delhi, order dated 02.01.2024.
  14. See discussion in Nathu Singh v. State of U.P., (2021) 6 SCC 64.
  15. Priya Indoria, supra note 3.
  16. (2020) 5 SCC 1.
  17. Teesta Atul Setalvad v. State of Gujarat, 2017 SCC OnLine SC 1490.