The Bombay High Court recently referred an issue to a larger bench on whether transit bail can be granted by a court in cases registered outside its jurisdiction.
On May 5, a division bench of Justices S.S. Shinde and S.V. Kotwal was hearing a plea to answer the reference made by a single bench of Justice Revati Mohite Dere in an anticipatory bail application of 2018. The question is, “whether an application for transit anticipatory bail for a short duration, is maintainable in order to enable the accused to approach the Court of appropriate jurisdiction for seeking regular anticipatory bail for a short duration?”
Reference to a larger bench was necessitated because Justice Mohite Dere disagreed with the view of Justice A.S. Gadkari that applications for transit anticipatory bail were not maintainable.
Additional Solicitor General Anil Singh and Advocate General A.A. Kumbhakoni took the stand that such type of orders cannot be passed since legally they are not sustainable; and neither a Sessions Court nor a High Court in one State can give protection in the nature of the order under Section 438 (direction for grant of bail to person apprehending arrest) of Code of Criminal Procedure (CrPC) in relation to an offence registered in a some other State.
The 37-page order read, “It is more than clear that there is a vertical rift in the views expressed by different High Courts. The importance of this question cannot be overstated. It involves the liberty of citizens. At the same time, the Court will have to balance the difficulties of the investigating agency. The provision can be misused either by the accused or even by the complainant. In a given case, only with a view to harass somebody, the informant may choose to file his FIR at a far away 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.”
