Representing the state government, Advocate General Ashutosh Kumbhakoni and Additional Solicitor General Anil Singh for Central government argued that orders granting transit anticipatory bail for short duration could not be passed as they are legally unsustainable. A division bench of the Bombay High Court has recently referred to its full bench the issue of whether the HC or sessions courts can grant transit anticipatory bail to accused in cases registered or likely to be registered in another state, outside their jurisdiction.
A division bench of Justice S S Shinde and Justice S V Kotwal on May 5 passed a judgment in a 2018 reference made by a single-judge bench of Justice Revati Mohite-Dere, seeking ruling as to whether an application for transit anticipatory bail for a short duration is maintainable.
It noted that while transit anticipatory bail is not defined or mentioned under CrPC, generally it is understood to mean an order under Section 438 (grant of bail for person apprehending arrest) of CrPC for ‘short duration’ for an offence registered in a different state, so that the applicants can approach the court in that state for obtaining regular anticipatory bail.
The division bench noted, “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. On the other hand, the accused may take wrong advantage of this provision by obtaining this type of order to buy time, which could be used to destroy the evidence. Both these mischiefs must be checked while considering this issue.”
Best of Express Premium
The bench held, “…based on this discussion, we are of the view that the matter involves the larger interest of the citizens and, therefore, it can be more advantageously heard by a larger (full) bench.”
Representing the state government, Advocate General Ashutosh Kumbhakoni and Additional Solicitor General Anil Singh for Central government argued that orders granting transit anticipatory bail for short duration could not be passed as they are legally unsustainable.
However, senior advocates Mihir Desai and Amit Desai said such orders can be passed “in the interest of justice” as Section 438 flows from Article 21 of the Constitution since “liberty of person is paramount”.
- The Indian Express website has been rated GREEN for its credibility and trustworthiness by Newsguard, a global service that rates news sources for their journalistic standards.
