Introduction

Prisons or Jails are the oldest institutions meant for detaining prisoners. It holds both convicts and under-trials. However, since India holds great reverence for the Doctrine of “Innocent until proven guilty” every person has the right to live a free life until proven guilty. Depriving someone of its liberty without due process of law is equal to a punishment. and to avoid this blatant wrong and miscarriage of justice, over time developed the concept of ‘Bail’. It can be defined, “as temporary relief of an arrestee secured by a bond or promise to appear in future court hearings and adhere to conditions of bail”. 

The concept of bail as is understood in the modern context, developed in 1215 in England and is often referred to as the Magna Carta. In India, bail was first lawfully recognized and codified in the year 1898, with the coming into of Code of Criminal Procedure.  

The ground covered under bail has since then only expanded and saw the coming in of new concepts such as Anticipatory Bail and a much newer practice of Transit Anticipatory Bail. This paper shall attempt to capture the essence of transit bail and will shed light on its development and the present condition. Further the paper shall also analyse by comparing the concept of transit bail and its existence in other countries. This paper has been written with an aim to create awareness about developments of law and conduct a critical analysis of the same. It shall be a critical descriptive paper. The data for this paper has been provided by other research papers of the same genesis, law reports, statutory provisions, landmark judgements and recent news reports. The conclusion has been drawn by an interpretative approach of the various sources used and giving equal space to varying opinions. 

Development 

The original CrPC of 1898, implemented in British India, defined and classified offences as bailable and non-bailable. The bailable offences meant minor offences, such as obstruction in discharge of public function or sale of noxious eatables wherein the investigating officer can grant bail to the accused, whereas crimes of much serious nature such as murder and kidnapping were put in the category of non-bailable offence and the power to grant bail, rested with the judicial magistrate or judge. This approach had a confined perspective and the option of bail was available only after the arrest of an accused. The main contention with this approach was that a person can be charged for false and frivolous offences and this will lead to an inevitable arrest, bringing him embarrassment and mental suffering. To overcome this challenge, the Law Commission came up with an innovative idea of ‘Anticipatory Bail’ or pre-arrest bail. 

The intent was to reduce the chance of misuse of criminal laws by the ‘influential people’ of the society.

The suggestion given by the Law Commission in its 41st report saw the light of the day, with the codification of  ‘Code of Criminal Procedure, 1973. This act continued the practice of grant of ordinary bail, which was covered under section 437, and also brought in provisions for grant of anticipatory bail which were codified under section 438. The main difference between an ordinary bail and anticipatory bail lies in the fact that the former is available only after arrest whereas the latter is a remedy if a person is anticipating arrest and is hence executable at the time of the arrest.

In the case of Gurbaksh Singh v. State of Punjab,the Supreme Court held that Section 438 is concerned with the liberty of a person. It must be assessed concerning Article 21. The court held that the ‘beneficent provision of the section must be preserved’. The court opted for a liberal interpretation of the article so that it can fulfil the intention of the legislative drafters. The courts have, however, restrained from treating anticipatory bail as a fundamental right and the section lays down certain conditions for grant of relief under this provision. The High court or Session court can lay down one or all of the following conditions, 

(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;

(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;

(iii) a condition that the person shall not leave India without the previous permission of the Court. 

Furthermore, the apex court in the case of Sushila Aggarwal v. State (NCT of Delhi) clarified the issue of the period of anticipatory bail. The court held that the bail period can be decided with regards to the case facts, the bail may be till a period the person moves to regular court for bail or may be extended for an even longer duration. Thus the basic genesis of this article i.e. respect for the liberty of citizens always remained the central theme. 

The judges in recent years have taken a step further and tried to expand the scope of the provision by bringing in the practice of ‘transit anticipatory bail’.  

Modern Approach

Transit anticipatory bail or transit bail often used interchangeably, is the expanded and accumulative form of anticipatory bail. The words ‘Transit Bail’, is nowhere mentioned in the Code of Criminal Procedure and this provision is completely a judge-made law. Black Law Dictionary defines ‘In Transitu’ as being in the passage from one place to another. The term transit here stands for the action of passing through a jurisdiction. A transit anticipatory bail is granted to someone when they are apprehended to be arrested in a different jurisdiction to the jurisdiction the case has been filed against them. Thus, if a person is anticipating arrest from the police of a state other than the state where he resides, can approach the High Court of Session Court present in his proximity and request it to provide temporary relief. 

The start of this practice can be traced back to the case of B.R. Sinha v. State, where the Calcutta high court was pleased to grant anticipatory bail. The case actually started in a court, which was outside the jurisdiction of the High Court. The Hon’ble court declared that Section 438 in no way bars other High courts or Session courts from granting anticipatory bail. The court, held that bail should be granted based on the merits of the case and fulfilling the grounds of anticipatory bail. If the appellant has reason to believe that he may be arrested, he can approach the nearest High court or Session court to seek temporary relief before he can appear in front of the actual court. If the conditions are satisfied, then grant of bail will be constitutional and lawful. A similar line was chosen by Karnataka High court and it was held that the interpretation of Section 438 should be done in favour of the liberty of citizens, since the act does not explicitly bars grant of bail by another high court, it can be used to the rescue of people This view also fulfils the constitutional mandate of freedom of a person. An akin view but with a different lens was provided by the Bombay High Court in the case of N.K Nayar v. State of Maharashtra. The case involved a petitioner who resided in Maharashtra but a non-bailable case was registered against him in Gujarat. The court held that grant of bail in such cases would be on grounds similar to that of anticipatory bail. The court also declared that although the case was registered in some other state but since the arrest is apprehended inside the jurisdiction of this court, hence the High courts and Session courts of other states can also grant bail. Clarifying, on the issue of time period of such bail, the Calcutta High Court in case of Sailesh Jaiswal v. State of West Bengal held that if any person has reason to believe that he may be arrested for a non-bailable offence the court shall then, based on the merits of the case, grant him interim relief. The court in the present case also declared that the length of such bail should be reasonable. It should provide a sufficient amount of time to the accused to appear before the court having actual jurisdiction but also should not be of such length that it transgress into limits of jurisdiction of the court within which the offence is alleged to be committed. A similar stance was taken by the Bombay High Court in the very recent Shantanu Muluk case. Shantanu, who was a resident of Beed in Maharashtra was charged by Delhi Police for alleged involvement in making of a toolkit document to be used to further agitate the ongoing farmers protest but he was granted Transit bail by the Aurangabad bench of Bombay High Court. Other than satisfying the grounds for an anticipatory arrest, the court in case of transit breach should look at certain additional aspects as well. In the case of Honey Preet Insan v. State, the Delhi High Court held that it is the duty of the court to make sure that the person is a regular or bona fide resident of a place within the limits of court. It must not be a camouflage to evade the process of law. Hence, only a regular resident of a place can apply in the High Court or Session Court of the place. The other grounds of bail remain the same. Thus, the concept developed as a brainchild of Indian judges and has been evolving since then. This development has ensured that the fundamental rights of a person provided under section 22 have been delivered to the citizens. 

General Consensus 

A vast set of practices are evident with relation to grant of bail in different countries of the world based on the criminal justice system followed in these countries. The two most prominent systems of judicial working are the Adversarial system and the Inquisitive system. Many European countries including France, Germany and Poland follow the inquisitorial system wherein the judges have more power associated with them and they actively take part in the proceedings and at times even in investigations. On the other hand, most of the common law countries including Britain, India, America etc. follow the adversarial system. The judges in such a system don’t get involved in the investigation and the plaintiff and respondent contend against each other.   In America the bail system is considered to be wealthy-friendly, and the release of an accused to a great extent depends on their financial condition. This is because the US is the only country other than the Philippines, where a cash bond is a precondition to bail. The accused can only be granted bail if he submits a certain amount of money as surety or else he should plead guilty and end up in the criminal record. The black defendants often have to pay a greater bail amount then the white defendant and this system at times end

 up curtailing the rights of the poor while being soft on the rich. The United Kingdom governs the grant of bail under the Bail Act, 1976 and the Police and Criminal Evidence Act 1984. The system is considered one that easily grants bail to an accused unless the prosecutor demands a non-grant of bail. In such a condition, the onus shifts on the prosecutor to prove that the accused have a flight-risk or can be dangerous to society if released without trial. The country, however, has still no prevalent practice of anticipatory bail and a release can only happen from the Police Station or the Court. A similar approach is taken by Scotland but here the disapproval of bail by the public prosecutor makes the grant of bail nearly impossible.  The French Republic follows an inquisitorial system, hence the judges have a higher authority in the grant of bail. The bail before trial or controle judiciaire is mainly governed under French Criminal Code 2005. The system lays a lot of emphasis on the liberty of an individual and hence the release of a person is highly appreciated. However, the major roadblock in this context are the overburdened courts. The courts in Paris for example face a heavy backlog of cases due to which an accused may spend much more time in prison without getting a chance to be heard. An important reform to tackle this problem has been done and the time spent in prison is reduced from the jail term but it still applies to the actual convicts and the accused who are set free still have to face the brunt of the system. 

Can Section 438 of the CrPC sufficiently deal with the grant of anticipatory bail in any sessions or high court in the country?

 In the case of Syed Zafrul Hussain & Anr. Vs. State, Syed Zafrul Hussain, and Prasanta Majumdar were the two petitioners and were employees of the Associated Cement Company Ltd. Both of them held the position of the dealing assistant and the head of the section respectively at the branch office in Patna.

        A case was filed against an executive engineer of the company about the 8000 tons of cement to the government. Apprehending the arrest, filed an anticipatory bail application in the Patna High Court. The court while hearing the case came across an issue that whether section 438 of the CrPC sufficiently deals with the grant of anticipatory bail in any sessions or high court in the country, irrespective of the fact where the particular offense was committed.

        The court concluded that Section 438 does not envisage the grant of anticipatory bail in any sessions court or high court in the country where the accused may apprehend arrest. Such power vests only in the sessions or the high court having jurisdiction over the locale of the commission of the offense of which the person is accused.

Conclusion

In India the courts have often agreed on the fact that the police may be misused and they often act with oblique motives, and hence came the system of anticipatory bail. The courts have time and again stated that bail should be the norm and jail before trial should be an exception. When compared with other countries we perform better at certain parameters, for instance India is among the very few countries which recognize the legitimacy of bails prior to arrest. But we lack behind on certain grounds and can improve by taking cue from practices followed in other countries. There is also a strong need that the grounds concerning transit bail should be clarified for once and all by a superior authority. In the case of Sandeep Loharia v. Jawahar Bijlani, the apex court held the issue of anticipatory bail. The court declared it to be valid but left it in the high courts to decide the cases as per their understanding. Because of this there is no clear consensus on the matter and judgements in the matters differ to a great extent based on the understanding of a particular court and after recent cases like that of ‘Toolkit’ where persons living in a one state are charged of sedition by officials in another state, a clear consensus is much needed. It is well documented that the Indian jails are overburdened and being in prison without the completion of trial is a mental agony. In the present system the economically weaker have to suffer while the rich elite gets an easy pass through. A change in the judicial system in this context would further make it a people and justice-friendly system which may work to uphold liberty of all citizens because impartial administration of justice is the foundation of liberty. 

Written By – 
Yash Agrawal