The Allahabad High Court in connection with an offence registered / about to be registered outside its jurisdiction/state has observed that a High Court has the power to grant transit anticipatory bail to an accused.
A Single Bench of Justice Siddharth heard the petition filed by Amita Garg and 6 Others.
The anticipatory bail application has been filed on behalf of the applicants, Amita Garg, Vashudev Garg, Chaitanya Garg, Radhika, Sanjay Dixit, Mohd Gulzar Joieya and Vishan Singh, with a prayer to release them on transit / anticipatory bail in FIR Police Station- Mansarovar, Jaipur City (South) dated 10.05.2022, under Sections- 504, 506, 384, 467, 468, 120-B IPC, during pendency of trial.
The facts of the case are that the applicant no 1 at present is aged about 58 years, the applicant nos 2 and 3 are the sons and the applicant no 4 is the daughter of applicant no 1 and the applicant nos 2 and 4 are the directors of several companies including the Rajdarbar Infotech Private Ltd. Head Office of Rajdarbar Infotech Pvt Ltd, situated at Agra. The applicant nos 5 and 7 are the employees of said company. The applicant no 6 was earlier director of the complainant’s company. All the applicants have good reputation and high moral value in the society having business of real estate and construction of the township as well as colonies all over the country in different cities.
Huge amount has been paid to the opposite party no 3, who is director of Vastu Colonisers Private Ltd, having its office at Jaipur through the M/S Pink City Infrastructure Pvt Ltd, for providing the land of 380 bighas at Jaipur for the development of Township and the colonies. However, till date only 80 bighas of land has been provided and the money has not been returned to the applicant’s company through the Pink City Infrastructure Pvt Ltd.
Pink City Infrastructure Pvt Ltd, has lodged a First Information Report against the opposite party no 4 (Gyanchand Agrawal) and other persons at Agra which has been registered as First Information Report on 11.12.2021 at Police Station – Hari Parvat, Agra, under Sections – 120-B, 406, 420, 467, 468, 471 IPC as they have cheated the applicant’s company and not provided the land as agreed therefore, as a counter blast First Information Report has been lodged by the opposite party no 3 against the applicants and several other persons only to create pressure upon them to appear the court at Jaipur.
Counsel for the applicants submitted that the FIR has been lodged at the Police Station- Mansarovar, Jaipur City (South), Rajasthan and the applicants are the residents of District – Agra in the State of UP. They are willing to appear before the court concerned at Jaipur, Rajasthan for the purpose of getting bail. However, they may be granted transit anticipatory bail for a short time so that they may appear before the competent court at Jaipur under limited protection granted by this court by way of time bound transit anticipatory bail.
AGA has opposed the prayer made on behalf of the counsels for the applicants and has submitted that the Court has no jurisdiction to grant any protection to the applicants. The offence has taken place outside the state. They may appear before the court concerned and apply for bail / anticipatory bail and the application is not maintainable before the Court.
After hearing counsels for the parties, the Court found that 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. In the Code of Criminal Procedure 1973, on such recommendation, provision of Anticipatory Bail was inserted in Section 438. 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 held that,
Section 438 of the Code of Criminal Procedure specifies direction for grant of bail to a person apprehending arrest and moreover confers power only upon the High Court and the Court of Sessions to grant anticipatory or transit bail if they deem fit. At the point when an individual has the motivation to accept that he might be arrested on an allegation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a grant of anticipatory bail. The Court may, as it thinks fit, direct that in case of such arrest, he will be released on anticipatory bail.
Nonetheless, the 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 said that,
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 mean 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 regular court would consider such anticipatory bail, on its own merits and shall decide such anticipatory bail application. Therefore, it could be easily said that transit bail is a temporary relief which an accused gets for a certain period of time so that he/she could apply for anticipatory bail before the regular court.
In view of the law enunciated in the above referred cases, 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-I1I of the Constitution of India and such rights cannot be impinged except by following procedure established by law.
The Court further found 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).
Hence, the Court directed while allowing the application that in the event of arrest of applicants in connection with the FIR Police Station- Mansarovar, Jaipur City (South) dated 10.05.2022, under Sections- 504, 506, 384, 467, 468, 120-B IPC, they shall be released on transit bail on executing personal Bond of Rs 50,000/- with two sureties of the like amount;
(i)This protection is granted for a period of four weeks from the date of this order, to enable the applicant to approach the competent Court for seeking appropriate relief.