The Allahabad High Court, recently comprising of a bench of Justice Rajesh Singh Chauhan held that a High Court of one State can grant transit bail in respect of a case registered within the jurisdiction of another High Court in exercise of power under Section 438 of the Code of Criminal Procedure. (Ajay Agarwal v. State Of U.P. Thru. Addl. Chief Secy. Home Lko. And 3 Others)
Facts of the case
The present applicant was apprehending his arrest in an FIR registered under Sections 406 & 420 IPC.
Issue before the court
Whether the transit anticipatory bail could be granted to the applicant or not?
Contention of the Parties
Learned counsel for the applicant submitted that the present applicant has been falsely implicated in the case as he has not committed any offence as alleged in the prosecution story so narrated in the FIR. In the FIR, name of the accused is Ajay Agrawal, resident of 19/30, Salt Lake, Kolkata, however, the present applicant is Ajay Agarwal, but he is not resident of Kolkata and he is not that person against whom the allegation has been levelled in the FIR. Since investigation is going on at Maharashtra, therefore, the applicant will have to participate in such investigation at Maharashtra.
However, the FIR has been lodged under Sections 406 & 420 IPC wherein the punishment is upto seven years, therefore, in view of the dictum of the Hon'ble Apex Court in re; Arnesh Kumar vs. State of Bihar, (2014) 8 SCC 273 and Satender Kumar Antil vs. CBI and others, Special Leave to Appeal (Criminal) No.5191 of 2021, the applicant should not be arrested till investigation, but the concerning Investigating Officer has issued a letter dated 10.09.2022 to the applicant to participate in the investigation, therefore, he will have to participate in such investigation and he is apprehensive of his arrest.
Learned counsel submitted that the present applicant is a reputed businessman of Uttar Pradesh dealing with the safety products, therefore, the present applicant may be given transit anticipatory bail.
Courts Observation and Judgment
The bench at the very outset observed, "there is no legislation or law which defines ”transit or anticipatory bail’ in definitive or specific terms. The 41st Law Commission Report in 1969 recommended the provision of Anticipatory bail to safeguard the right to life and personal liberty of a person under Article 21 of the Constitution of India."
The Court further observed, "The term ''transit' means the act of being moved from one place to another while the word ''anticipatory bail' means a temporary release of any accused person who is anticipating arrest, therefore, transit anticipatory bail refers to bail granted to any person who is apprehending arrest by police of a State other than the State he is presently located in."
The Court remarked, "Nonetheless, transit anticipatory bill is different from ordinary bail. Ordinary bail is granted after arrest, releasing the accused from custody while anticipatory bail is granted in the anticipation of arrest i.e., it precedes detention of the accused and is effective immediately at the time of the arrest. In plain words, when an accused is arrested in accordance with the order of the court and whereas the accused needs to be tried in some other competent court having jurisdiction in the aforementioned matter, the accused is given bail for the transitory period i.e., the time period required for the accused to reach that competent court from the place he is arrested in."
The Court noted, "It is to be noted that transit bail is protection from arrest for a certain definite period as granted by the Court granting such transit bail. The mere fact that an accused has been granted transit bail, does not means that the regular court, under whose jurisdiction the case would fall, would extend such transit bail and would convert such transit bail into anticipatory bail. Upon the grant of transit bail, the accused person, who has been granted such transit bail, has to apply for anticipatory bail before the regular court."
The Court allowing the application remarked, "there was no fetter on the part of the High Court in granting a transit anticipatory bail to enable the applicants to approach the Courts including High Courts where the offence was alleged to have been committed and the case is registered. There is no doubt that the right to liberty is enshrined in Part-I1I of the Constitution of India and such rights cannot be impinged except by following procedure established by law. This court finds that the commercial transaction ensued between the applicants and the complainant and there are criminal cases lodged by the parties against each other. It is a fit case where the applicants should get the privilege of transit pre-arrest bail in the light of the order passed in the case of Nikita Jacob (supra)."
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