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A division bench of the Bombay high court on Thursday referred to a larger bench the issue of whether a high court or any other court can grant transit anticipatory bail to a person booked for an offence in another state.
The reference made by a division bench, after a single-judge bench referred a clutch of such petitions to it, was prompted by a difference of opinion on the issue between the additional solicitor general (ASG) for the Union of India and the advocate general (AG) for the state on one side and the lawyers for the petitioners. While the ASG and the AG submitted that in light of the observations made by a previous bench of the high court, a court could not grant protection to an offender beyond its jurisdiction, the counsel for the petitioner argued that the liberty and freedom of an individual was of paramount importance and hence any court could exercise its authority on the issue even if it was beyond its jurisdiction.
The division bench of justices SS Shinde and Sarang Kotwal while hearing a clutch of petitions seeking transit anticipatory bail was informed by senior advocates Amit Desai and Mihir Desai that liberty of a person was paramount and hence the apprehension of arrest should be the guiding factor rather than territorial jurisdiction of the courts.
Senior counsel Amit Desai submitted that maintainability of an anticipatory bail application should not be decided on the basis of consideration of territorial jurisdiction. “A reasonable apprehension of any person of his/her arrest should be the guiding factor and not the territorial jurisdiction,” he said.
He submitted that giving rise to such apprehension itself is a cause of action giving jurisdiction to a Court before which such apprehension is expressed by such a person.
The advocates submitted that as there was a question on constitutional and statutory rights, courts could merge both under section 438 of the Code of Criminal Procedure (CrPC) and grant not only transit bail but also permanent anticipatory bail.
The division bench while observing that there were opposing views on the issue of granting transit anticipatory bail by different high courts, said the importance of the question could not be brushed aside as it involved the issue of liberty of citizens. The bench was however quick to add that the said section could be misused by both the complainant and the accused as well wherein a complaint could be registered in another state just to harass a person or by the accused to lessen the magnitude of the offence by destroying evidence. The bench held that both these mischiefs needed to be checked while considering the issue.
Thereafter when the AG suggested that the issue should be referred to a larger bench, the division bench noted that it had the power to refer the issue to a larger bench only if there were divergent views of different courts. The court also held that the issue of permanent anticipatory bail also needed to be addressed and hence framed additional questions and referred those to a larger bench.
The reference will be subject to the approval of the chief justice, after which it will be taken up.
Last year, similar questions were raised by the state and the Union of India while opposing the transit bail applications of Nikita Jacob and Shantanu Muluk who were booked for their role in the “toolkit” case. Though the high court at its principal seat and the Aurangabad bench granted the transit anticipatory bail, they suggested that the issue needed to be clarified by a larger bench.
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