Arrest Overrides Transit Relief, No Anticipatory Bail: High Court

Nagpur: Clarifying the scope of pre-arrest relief, the Nagpur bench of Bombay High Court recently held that an anticipatory bail application is not maintainable once an accused has been arrested, even if transit bail has been granted.Justice Rajnish Vyas gave the ruling on a case of a Nagpur-based man, who was arrested in Delhi in connection with an FIR registered by Brahmapuri police in Chandrapur. He faced serious charges under Indian Penal Code, Maharashtra Money-Lending (Regulation) Act and provisions related to illegal organ transplantation.Court framed the central issue around whether an accused "who has been arrested, produced before a magistrate, and released on transit bail, can still invoke Sec. 438" of Code of Criminal Procedure dealing with anticipatory bail or relevant provisions under BNSS, 2023.Rejecting the plea, court held arrest was duly effected in Delhi, noting the accused was apprehended, produced before a magistrate and furnished with grounds of arrest. "Once arrest is done, the remedy shifts from Section 438 to regular bail," the court observed, adding pre-arrest protection "was not at all available" thereafter.The petitioner argued his arrest was merely a "paper arrest" since transit remand was denied and he was granted transit bail. He contended the possibility of re-arrest justified his move to seek anticipatory bail.Opposing his contentions, govt pleader and senior counsel Deven Chauhan argued petitioner is in ‘constructive custody' and has already submitted to jurisdiction of magistrate's court. "He had given an undertaking he would appear before the jurisdictional court at Chandrapur, which disentitles him from claiming anticipatory bail," Chauhan said.Court found "no substance" in petitioner's claim and pointed to compliance with due procedure, including arrest documentation, medical examination and communication to family members.Further, it noted accused had undertaken before Delhi magistrate to appear before Chandrapur court, but failed to do so and instead sought anticipatory bail. This conduct, court indicated, weakened his claim for relief.Addressing broader legal principles, court emphasised that while anticipatory bail safeguards personal liberty, it presupposes absence of arrest. "The transit bail will not undo arrest made by police," the order stated, rejecting reliance on precedents cited by the applicant.Citing SC rulings, court reiterated an accused is deemed in custody once he submits to jurisdiction of a court. It concluded: "Application for anticipatory bail is not maintainable once an arrest is effected, irrespective of grant of transit bail."
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