Explained: What is transit bail and transit remand?

What does the law say about the procedure regarding arrests to be made from a state other than where the case has been registered and what does transit bail mean?

The Bombay High Court on Tuesday granted transit anticipatory bail to Shantanu Shivlal Muluk in the Greta Thunberg toolkit case registered by the Delhi Police in connection with the ongoing protests against the three farm laws. The transit anticipatory bail has been granted to Muluk for 10 days to allow him to approach the competent court in the national capital for a pre-arrest bail. On Wednesday, the High Court also granted transit bail for three weeks to lawyer and activist Nikita Jacob in the same case.

What does the law say about the procedure regarding arrests to be made from a state other than where the case has been registered and what does transit bail mean?

What does the law say about the arrest of a person?

According to Article 22 of the Constitution of India, every person who is “arrested and detained in custody” has to be produced before the nearest magistrate within a period of 24 hours of the arrest — the period excludes the time necessary for the journey from the place of arrest to the court. No person can be kept in custody beyond the period of 24 hours without an order of a magistrate. Section 56 of the CrPC states that the person arrested has to be taken before the magistrate without unnecessary delay. According to Section 167 (2) of CrPC, when the Magistrate before whom the accused person has been produced does not have the jurisdiction to try the case or commit it for trial, the judicial officer is required to forward the accused to a Magistrate having such jurisdiction. Depending upon the case, the jurisdictional magistrate can authorise detention of the accused either by the police or send the person in judicial custody.

When does a person apply for anticipatory transit bail?

When a person is apprehending arrest by the police of a state other than where they are at present, they approach the nearest competent court for a transit anticipatory or pre-arrest bail. The court does not have jurisdiction over the place where the case is registered or where crime has been alleged to have been committed but since the question of personal liberty is involved, the High Courts across India generally allow such prayer depending upon the merits of the case.

The relief is sought to seek temporary protection from arrest and simultaneously get time to approach the appropriate court of that place, wherefrom the police has come or where the case is registered, for a similar pre-arrest bail. Muluk argued before the Bombay Bench at Aurangabad on Tuesday that it would take time for him to reach New Delhi from his residence in Beed, engage an advocate and file for anticipatory bail.

While the police objected to the jurisdiction of the Aurangabad bench, Justice Vibha Kankanwadi cited the law laid down earlier by a division bench of the High Court, according to which when the person is apprehending arrest in a case in some other state, he should have remedy of applying to the Bombay HC if the arrest is likely to be effected within its jurisdiction and even if the offence might have been committed in some other state.

What is transit remand and when is it required?

Since the arrested person is required under the law to be presented before a magistrate within 24 hours of arrest, they are produced by the police of the other state – which has registered the case – before the nearest magistrate of the place from where the person has been arrested to get a transit remand. This is done to comply with the provisions of law regarding the production of the accused before a magistrate within 24 hours since it may not be otherwise possible due to travel from one state to another.

The application is filed by the police which has come to arrest the accused, before the nearest magistrate of that area where the accused is at present or residing. Delhi High Court in Gautam Navlakha vs State (NCT of Delhi) in 2018 held that “the Magistrate examining the transit remand application is not required to go into the adequacy of the material, he should nevertheless satisfy himself about the existence of the material”. It also held that the Magistrate should ask the person arrested and brought before him whether he has been informed of the grounds of arrest and whether he was required to consult and be defended by any legal practitioner of his choice.

The apex court last year said the Delhi HC judgment shall not be treated as precedent and ordered that the questions of law are kept open. However, the apex court in different judgments has also held and reiterated that a Magistrate should not pass an order of remand automatically or in a mechanical manner.

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