The Kerala High Court has reaffirmed the principle that while it cannot grant pre-arrest bail for offences registered outside its territorial jurisdiction, it retains the power to grant transit bail under Section 482 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. This judgment provides crucial guidance on the procedural safeguards available to accused persons facing inter-state arrest, balancing the imperatives of personal liberty with jurisdictional constraints.
Background & Facts
The Apprehension of Arrest
The petitioner, a resident of Ernakulam, Kerala, faced potential arrest in connection with Crime No. 62 of 2025 registered at C.E.N Police Station, Kalaburagi, Karnataka. The offences alleged included:
- Section 66C (identity theft) and 66D (cheating by personation) of the Information Technology Act, 2000
- Sections 318(2) (cheating), 318(4) (cheating by personation), 319(2) (forgery), 190 (criminal intimidation), and 111 (abetment) of the Bharatiya Nyaya Sanhita (BNS), 2023
The petitioner, fearing imminent arrest by Karnataka police, approached the Kerala High Court for relief.
Procedural Context
The case presented a jurisdictional dilemma:
- The FIR was registered in Karnataka, outside Kerala High Court's territorial jurisdiction
- The petitioner resided in Kerala and sought protection from arrest during transit to Karnataka
- The BNSS, 2023 had recently replaced the Code of Criminal Procedure, 1973, raising questions about the applicability of pre-existing bail jurisprudence
The Legal Issue
The central question before the Court was whether it could grant transit bail to an accused facing arrest in a crime registered outside its territorial jurisdiction, particularly under the newly enacted BNSS, 2023.
Arguments Presented
For the Petitioner
The petitioner's counsel argued:
- The petitioner had a well-founded apprehension of arrest by Karnataka police
- Immediate arrest would pose a threat to her life and personal liberty
- She was unable to approach the Karnataka courts immediately due to logistical constraints
- The Supreme Court's decision in Priya Indoria v. State of Karnataka (2023) recognized the High Court's power to grant transit bail under similar circumstances
For the Respondent
The State, represented by the Public Prosecutor, did not contest the petitioner's claim for transit bail but emphasized:
- The limited scope of such relief, which should not preclude the jurisdictional court from considering a regular bail application
- The need for the petitioner to approach the Karnataka courts within a reasonable timeframe
The Court's Analysis
The Court's reasoning centered on three key principles:
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Jurisdictional Limits of Pre-Arrest Bail The Court acknowledged that it could not grant pre-arrest bail for offences registered outside its territorial jurisdiction, as this would encroach upon the authority of the courts where the crime was committed. However, it distinguished this from the power to grant transit bail.
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Transit Bail as a Safeguard for Personal Liberty Relying on the Supreme Court's decision in Priya Indoria, the Court held that transit bail serves as a temporary measure to protect an accused's personal liberty under Article 21 of the Constitution while they approach the jurisdictional court. The Court observed:
"The apprehension of the applicant of an inter-state arrest appears to be well-founded. The grounds raised by the applicant for an order of transit bail appears to be reasonable to avoid minimum threat to her life and personal liberty in the jurisdiction where the FIR is registered."
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Procedural Safeguards Under BNSS, 2023 The Court examined Section 482 of the BNSS, 2023, which corresponds to Section 482 of the CrPC, 1973, and held that this provision empowers High Courts to pass orders necessary to secure the ends of justice, including granting transit bail. The Court noted that the BNSS, 2023 had not altered the fundamental principles governing bail jurisprudence.
The Verdict
The Kerala High Court disposed of the bail application with the following directions:
- The petitioner was granted transit bail for a period of three weeks
- The Karnataka police (respondent No. 2) were restrained from arresting the petitioner during this period
- The petitioner was directed to approach the jurisdictional court in Karnataka within three weeks to seek regular bail or other appropriate remedies
What This Means For Similar Cases
Transit Bail Is Not a Substitute for Regular Bail
Practitioners must note that transit bail is a temporary measure, not a final relief. The judgment underscores that:
- Accused persons must approach the jurisdictional court for regular bail within the stipulated timeframe
- Transit bail does not preclude the jurisdictional court from considering the merits of the case afresh
- The relief is limited to preventing immediate arrest and ensuring safe passage to the jurisdictional court
Jurisdictional Courts Retain Primacy
- The judgment reaffirms that pre-arrest bail can only be granted by the court within whose jurisdiction the offence was committed
- High Courts outside the territorial jurisdiction can only grant transit bail to facilitate the accused's appearance before the jurisdictional court
- Practitioners should advise clients to approach the jurisdictional court at the earliest opportunity, even if transit bail is granted
BNSS, 2023 Does Not Alter Bail Jurisprudence
- The Court's reliance on Priya Indoria, a case decided under the CrPC, 1973, indicates that the principles governing transit bail remain unchanged under the BNSS, 2023
- Practitioners can continue to cite pre-BNSS precedents on transit bail, subject to the caveat that the BNSS, 2023 may introduce procedural variations in other contexts
- The judgment provides reassurance that the BNSS, 2023 has not diluted the safeguards for personal liberty under Article 21
Practical Steps for Accused Facing Inter-State Arrest
- File for transit bail immediately in the High Court of the state where the accused resides
- Approach the jurisdictional court within the timeframe granted by the High Court
- Prepare a strong bail application for the jurisdictional court, as transit bail is only a temporary measure
- Ensure compliance with all conditions imposed by the High Court to avoid revocation of transit bail
