High Courts can grant transit anticipatory bail for cases outside its jurisdiction: Allahabad High Court

The Allahabad High Court recently held that there is no fetter on the High Court granting transit anticipatory bail to enable persons to approach courts outside its jurisdiction for relief in cases registered there [Amita Garg v State Of UP]..Justice Siddharth observed that the right to liberty, being a fundamental right enshrined in Part III of the Constitution, cannot be curtailed except within the contours of established legal procedures."There is 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 is alleged to have been committed and the case is registered. There is no doubt that the right to liberty is enshrined in Part-III of the Constitution of India and such rights cannot be impinged except by following procedure established by law," the order stated..The Court relied heavily on the observation of the Bombay High Court in Teesta Atul Setalvad v State of Maharashtra while passing the order,"It appears from the said judgment that there is no fetter on the part of the High Court in exercising the power under Section 438 of the Code in granting anticipatory bail for a limited period to enable the applicant to move the appropriate Court as the gravity of pre-trial arrest and the loss of liberty of the individual cannot be compromised on the anvil of the powers, competence and/or jurisdiction of the Court," the Court observed..The issue arose while the Court was considering a plea moved by 7 persons, accused of having committed several offences as per a First Information Report (FIR) lodged in Jaipur, Rajasthan.However, since the petitioners resided in Agra, Uttar Pradesh, they sought transit anticipatory bail from the Allahabad High Court so that they could appear before the concerned court at Jaipur and seek bail, while under limited protection.The State opposed the plea on the ground that the High Court did not have the jurisdiction to grant any protection to the applicants since the offence took place outside the State. .On hearing the parties, the single-judge noted that there was no legislation or law defining ‘transit or anticipatory bail’ in definitive or specific terms.However, it was taken into account that the Law Commission had recommended that anticipatory bail be added to safeguard a person's right to life and personal liberty under Article 21 of the Constitution..Placing reliance on the Bombay High Court's judgment in Nikita Jacob v State of Maharashtra in which the principle laid down in Teesta Atul Setalvad was adopted, the Court opined that this was a fit case for the applicants to get the privilege of transit pre-arrest bail..The Court went on to emphasise that the mere fact that an accused was granted transit bail did not mean that the regular court having jurisdiction would extend it, or would convert it 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 stated.It was, therefore, clarified that the regular court would consider the anticipatory bail on its own merits and decide the application..The applicants were represented by advocates Ram Kishore Pandey, Ajay Kumar and Bashist Singh..In May 2022, the Bombay High Court was faced with the question of maintainability of pleas for transit anticipatory bail and a division bench had referred the issue to a larger bench."There is a vertical rift in the views expressed by different High Courts. The importance of this question cannot be overstated. It involves liberty of citizens. …the matter involves larger interest of the citizens and, therefore, it can be more advantageously heard by a Larger Bench,” the bench of Justices SS Shinde and SV Kotwal had observed in the referral order..[Read Order]

High Courts can grant transit anticipatory bail for cases outside its jurisdiction: Allahabad High Court

Ratna Singh

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