New Delhi: The Bombay High Court has granted transit anticipatory bail to activists Nikita Jacob and Shantanu Muluk, who are suspects in a case registered by Delhi Police in connection with the “toolkit” shared by climate activist Greta Thunberg over the ongoing farmers’ protest.
The Aurangabad bench of the Bombay High Court Tuesday granted transit anticipatory bail for a period of 10 days to Muluk, while the principal bench of the HC granted transit bail to Jacob for three weeks Wednesday. Both Jacob, a lawyer, and Muluk work for a UK-based NGO, Extinction Rebellion (XR).
The Delhi Police had issued non-bailable warrants against the duo Monday, a day after announcing the arrest of 22-year-old activist Disha Ravi in the case.
It alleged that Muluk and Jacob had created the toolkit that meant to “tarnish” India’s image.
Among other things, the FIR filed in the case mentions sections 124A (sedition), 153A (promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc), and 120B (whoever is a party to a criminal conspiracy) of the IPC.
Here is everything you want to know about transit anticipatory bail and what courts have said about it in the past.
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What is ‘transit anticipatory bail’?
Section 438 of the Code of Criminal Procedure (CrPC) talks about grant of bail to a person anticipating arrest.
An application for such a bail can be made before a high court or a sessions court whenever anyone feels they may be arrested on accusation of having committed a non-bailable offence.
So the difference between an ordinary bail order and an anticipatory bail order is that the former is granted after arrest and, therefore, leads to the release of the accused from custody, while an anticipatory bail is granted in anticipation of the arrest and is, therefore, effective at the very moment of arrest.
A transit anticipatory bail is sought when a case against a person has been or is likely to be filed in a state different from the one in which he or she is likely to be arrested. So the purpose of a transit bail is to allow the person bail, so they can approach the appropriate court in the state in which the case has been filed for anticipatory bail.
In the absence of transit anticipatory bail, the result would be that another state’s police could arrest a person from their home state without them having the opportunity to apply for anticipatory bail at all. The only option then left would be to apply for regular bail once they are arrested and taken to the state in which the case is registered.
What courts have said before
While Section 438 does not talk about transit anticipatory bail, courts have in the past granted such a bail to those who feared arrest.
For instance, in a 1985 judgment, a two-judge bench of the Bombay High Court considered the question whether Section 438 CrPC can be used by it when the case is filed in some other state.
The court ruled that it “would have jurisdiction if a person is likely to be arrested at a place within the jurisdiction of this court”. It referred to similar decisions given by the Karnataka High Court, the Calcutta High Court and the Delhi High Court.
However, in another 2017 judgment in the Gurugram school murder case, Justice A.S. Gadkari of the Bombay High Court opined that the jurisdiction in such cases rests with criminal courts in the place where the crime was committed and not where the accused lives or in any other part of the country.
In Muluk and Jacob’s case, the arguments revolved around both these judgments of the Bombay High Court.
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What HC said in Muluk’s case
Muluk, a resident of Beed district, Maharashtra, had approached the Bombay HC with an application for anticipatory transit bail, informing the court that a Delhi Police team is already in Beed.
The Maharashtra government had opposed the bail application, submitting that the Bombay High Court does not have jurisdiction to hear the application as the case is registered in Delhi. It further pointed out that if Muluk was apprehending arrest by the Delhi Police, the latter should also be made a party to the case.
The high court noted that the FIR has been lodged in New Delhi and so any regular application for anticipatory bail under Section 438 of CrPC will be considered by the Delhi High Court. It, however, asserted that the court now needs to consider whether Muluk can be granted transit bail to be able to approach the proper court in Delhi for this purpose.
It then referred to the Bombay High Court’s 1985 verdict, saying it would be applicable in this case.
It also noted that the high court last month granted transit anticipatory bail to ‘Tandav’ director Ali Abbas Zafar, Amazon Prime India head Aparna Purohit, producer Himanshu Mehra and the show’s writer Gaurav Solanki, against whom a case was registered in Lucknow for allegedly hurting religious sentiments through the web series.
‘SC has kept the point open’
The Bombay HC also considered an order passed by the Supreme Court in 2013, which was cited by Justice Gadkari to deny transit bail in the Gurugram school case.
In that case, the crime was registered against the accused under IPC and Arms Act provisions in Navi Mumbai.
The accused then approached the Bombay HC for anticipatory bail, which was rejected in February 2013. This order was upheld by the Supreme Court twice.
However, following this, the accused managed to get transit anticipatory bail from the Madhya Pradesh High Court, suppressing the fact that his anticipatory bail had been rejected by the Bombay High Court as well as the Supreme Court.
Taking note of this sequence of events, the Supreme Court had observed in an order passed in June 2013: “Thereafter, the respondent no. 1/accused appears to have filed an application for anticipatory bail in the nature of transit bail, which in our view has no provision under the Code of Criminal Procedure, 1973.”
However, in a subsequent order passed in the same case on 1 August 2013, the Supreme Court said: “We also make it clear that observations in the order passed by this court on 14 June 2013 or in any other order in these cases will also not cause any prejudice to the claim of any other accused in this matter for anticipatory or regular bail before the high court or any other appropriate court.”
Reading these two observations together, the Bombay HC now asserted that the Supreme Court therefore “has kept the said point open”.
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