A division bench of the Bombay High Court has referred the issue of whether transit bail can be granted by a court to accused in cases registered outside its jurisdiction to a larger bench for deliberation.
The bench of Justices SS Shinde and SV Kotwal, in its order said on Wednesday that the court would have to address difficulties faced by a probe agency and also ensure the provision (of granting transit bail) is not misused.
The issue was forwarded to the division bench by the single bench of Justice Revati Mohite Dere who disagreed with another single bench of Justice AS Gadkari. Justice Gadkari in an order in 2017 had said that applications for transit anticipatory bail were not maintainable. The order by the bench of Justices SS Shinde and SV Kotwal said that, “There is a vertical rift in the views expressed by different high courts. The importance of this question cannot be overstated. It involves the liberty of citizens. The matter involves the larger interest of the citizens and, therefore, it can be more advantageously heard by a larger bench.”
The bench said that the issue is of importance because the provision can be misused by both the accused or the complainant. “An informant may choose to file an FIR in a far away place in India only to harass somebody. An accused may also take the wrong advantage of the provision by obtaining such an order to buy time and destroy evidence. Both of these situations must be considered while deliberating on this issue,” said the bench.
The Additional Solicitor General (ASG) of India, Anil Singh appearing for the Union and Advocate General Ashutosh Kumbhakoni argued that such types of orders could not be passed since they cannot be sustained legally. They argued that neither a sessions court nor a high court in a state can grant protection under section 438 (anticipatory bail) in offences that are registered in another state.
Meanwhile, senior advocates Amit Desai and Mihir Desai said that such orders can be passed in the interest of bringing justice by invoking section 438. They said that the power under section 438 comes from article 21(right to personal liberty) so it could be elevated to that level because liberty of a person is paramount to all. They argued that section 438 should be given its effect without any limitations.
SOURCE: INDIA TODAY
