A man in Pune learns his estranged wife has filed an FIR against him in Patna. He has never lived in Bihar. He has no lawyer there. He cannot realistically appear before a Patna court within hours of an FIR being registered. So can a court in Pune, where he actually lives, step in and protect him from arrest until he can travel there and apply properly?
For decades, Indian courts couldn’t agree. The Supreme Court only settled the question in November 2023, in Priya Indoria v. State of Karnataka, forty-three years after it first laid down the liberty-centred reading of anticipatory bail that the whole doctrine still rests on. That gap says something about how slowly procedural law catches up with how people actually live.
This piece traces how the doctrine developed, what the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 actually says about it, and doesn’t, and where it still leaves accused persons exposed.
The Statutory Silence
Start with the statute, because that’s where this whole mess begins.
Anticipatory bail is governed today by Section 482 of the BNSS, 2023, which replaced Section 438 of the CrPC, 1973 when the new code took effect on 1 July 2024. The structure hasn’t really changed. A person who has reason to believe they may be arrested for a nonbailable offence can approach the High Court or Court of Session for a direction that, if arrested, they be released on bail. What the provision has never said, in either its old or new form, is anything about territorial jurisdiction. No language anywhere restricts a court’s power to FIRs registered within its own state or district.
That silence is the entire problem. Courts have had two decades to build an answer the legislature never gave them, and unsurprisingly, they built different answers in different parts of the country. “Transit anticipatory bail” doesn’t appear anywhere in the BNSS. It’s a judicial doctrine, assembled case by case to plug a gap Parliament left open. Every transit bail order, as a result, is a court reasoning by analogy and discretion. None of it is applying a codified test, because there isn’t one.
The Liberty Premise: Gurbaksh Singh Sibbia
Every honest account of anticipatory bail starts here. Gurbaksh Singh Sibbia v. State of
Punjab, (1980) 2 SCC 565, decided by a five-judge bench on 9 April 1980. Sibbia was a
Punjab minister facing corruption allegations. He sought anticipatory bail under Section 438 CrPC, but the Punjab and Haryana High Court had already laid down eight restrictive conditions for granting it, treating the provision as available only in “exceptional cases.”
The Supreme Court wasn’t having it. Section 438 uses deliberately wide language, the Court said, and no court gets to read inflexible conditions into a provision Parliament drafted broadly. The power has to be exercised judicially, yes, but without borrowing artificial constraints from the regular bail provisions. Article 21 did the heavy lifting here: denying anticipatory bail strips away liberty before any conviction, so the provision has to be read in a way that protects that liberty, not narrows it.
Sibbia says nothing about inter-state jurisdiction. Its relevance to transit bail is structural, not direct. It set a tone, one that every later court invoking Section 438, and now Section 482 BNSS, generously would reach for. Every expansion of anticipatory bail since, transit bail included, borrows its legitimacy from Sibbia’s basic refusal to let courts bolt on restrictions the statute never asked for.
Where the High Courts Disagreed
Interstate FIRs became common, especially in matrimonial and dowry cases, and a real split opened up. Could a court grant anticipatory bail over an FIR registered outside its own territory? Some High Courts said no. A Sessions Court or High Court, on this view, exercises jurisdiction coextensive with the territory it presides over, full stop. An FIR filed in another state simply falls outside that. The Calcutta High Court took this line in Sadhan Chandra Kolay v. State; the Patna High Court reached much the same conclusion in Syed Zafrul Hassan v. State.
Most High Courts disagreed, Karnataka’s among them. Their reasoning: Section 438 contains no express territorial bar, and an accused genuinely may not be able to travel to a distant state on short notice once an FIR surfaces. So courts where the accused ordinarily resides should be able to grant limited, interim protection, just enough to let the person reach the right court without getting arrested first. That’s where “transit anticipatory bail” comes from as a label. Not full anticipatory bail. A stopgap.
What this meant in practice was that your liberty depended on which High Court you happened to live under. That’s not law. That’s an accident of where you happen to live.
Sushila Aggarwal: What It Actually Decided
Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1, decided by a five-judge
Constitution Bench on 29 January 2020, gets cited constantly in transit bail discussions. It is not, despite that, a jurisdiction case. Worth being precise about what it actually decided.
The question before the Court was duration, not geography: must anticipatory bail automatically expire at some fixed point, say when police file a charge sheet or the court takes cognizance? A line of earlier judgments, starting with Salauddin Abdulsamad Shaikh v. State of Maharashtra, had said yes, anticipatory bail should ordinarily run for a limited period, after which the accused has to seek regular bail instead.
The Constitution Bench overruled that. Anticipatory bail, once granted, doesn’t need a fixed expiry and can run until the trial concludes, depending on the facts. This reaffirmed Sibbia and killed off the rigid time-bound model.
So where does transit bail come in? Through one passage that gets overlooked constantly. While rejecting a mandatory time limit, the Bench preserved something narrower: a court’s discretion to limit an anticipatory bail order to a short period, directing the applicant to get regular bail within a reasonable time after an FIR is registered, where the facts call for it. That’s the actual bridge to transit bail. Not jurisdiction. Discretion over duration, calibrated to whatever practical reality the accused is dealing with. Transit bail just applies that same logic to a different reality, not enough time to physically reach the right court, instead of a
charge-sheet deadline. Sushila Aggarwal never says a court in one state can act on an FIR filed in another. What it says is that courts keep calibrated discretion over how long protection lasts, and that discretion is one of the things later jurisdiction cases lean on.
Priya Indoria v. State of Karnataka: Settling the Question
The conflict finally got resolved in Priya Indoria v. State of Karnataka, 2023 SCC OnLine SC 1484, decided 20 November 2023 by Justices B.V. Nagarathna and Ujjal Bhuyan, with courtappointed amici weighing in given how split the High Courts were.
The facts will sound familiar to anyone who has read a few matrimonial dispute judgments.
The complainant’s FIR, alleging dowry harassment, was registered in Chirawa, Rajasthan. The accused, her husband and his family, lived in Bengaluru. A Sessions Court there granted them anticipatory bail without notice to the complainant, despite the FIR having zero connection to Karnataka. The complainant took the matter straight to the Supreme Court.
The Court’s answer: yes, a Sessions Court or High Court can grant anticipatory bail in a limited, transit form over an FIR registered outside its territory, provided the accused genuinely lives within that court’s territory and genuinely cannot reach the jurisdictional court in time. That overturned the Calcutta and Patna positions. But, and this matters, the Court did not call this full anticipatory bail. What a non-jurisdictional court grants is interim, time-bound by design, a safe window to get to the court that actually has authority over the case. Full anticipatory bail proceedings still have to happen there.
The Unfinished Business
Priya Indoria settles the immediate fight. It doesn’t settle everything, and stopping at “the Supreme Court fixed it” misses the more interesting part.
Start with the logical tension commentators have already flagged. Section 438 of the old CrPC, and Section 482 of the BNSS now, contains no language excluding a court’s jurisdiction just because the FIR was filed elsewhere. The Court accepted that much. So the more consistent conclusion, arguably, would have been to let courts grant full anticipatory bail regardless of where the FIR originated, not a watered-down transit version. Instead, by limiting non-jurisdictional courts to interim transit relief, the Court quietly read a soft territorial limit back into a provision it had just admitted contains none. That might be the right policy outcome. It does preserve the jurisdictional court’s role in deciding the merits.
But it doesn’t sit comfortably next to the Court’s own textual reasoning.
Then there’s the codification gap. BNSS was a fresh legislative exercise, a real chance to write transit anticipatory bail into Section 482 directly. Parliament didn’t take it. The doctrine stays entirely judge-made: how “genuine inability to travel” gets assessed, how long an interim order should run, whether the jurisdictional court is even bound to honour it, all of this is still being worked out one High Court, one FIR, at a time. For the accused, that uncertainty is not academic. Relief in a Bengaluru dowry case can look procedurally different from relief in an identical Delhi or Mumbai case, even post-Priya Indoria, because the details are left to individual benches.
And transit bail sits at an uncomfortable junction in matrimonial litigation specifically, which is where most of these disputes arise. Letting an accused husband seek protection in his own city rather than wherever his wife filed the FIR clearly helps prevent harassment through forum-distant FIRs. It also has a cost nobody talks about enough: it can make it harder for a complainant, usually the more vulnerable party here, to have her case heard on its own jurisdictional terms without a parallel proceeding running in a court she has no connection to. Priya Indoria doesn’t really engage with that asymmetry. It is focused on the procedural question of power, not the human one underneath it.
Conclusion
Transit anticipatory bail isn’t really a remedy. It’s a workaround, built by courts to manage a gap Parliament left open in 1973 and chose not to close in 2023, fifty years and one fresh code later. Sibbia gave it constitutional spine by insisting Section 438, now Section 482 BNSS, be read liberally. Sushila Aggarwal preserved judicial discretion over how long anticipatory bail lasts, a discretion later reasoning leans on without ever touching jurisdiction directly. Priya Indoria finally answered the jurisdiction question, but in a way that creates its own tension and leaves plenty of procedural detail unsettled.
In a country where marriages, jobs, and disputes cross state lines as a matter of routine, that counts as progress. It is not, yet, a finished framework.
Bibliography
Statutes
Bharatiya Nagarik Suraksha Sanhita, 2023, s 482. Code of Criminal Procedure, 1973, s 438 (repealed).
Cases
Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565.
Salauddin Abdulsamad Shaikh v. State of Maharashtra, (1996) 1 SCC 667.
Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694.
Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1.
Priya Indoria v. State of Karnataka, 2023 SCC OnLine SC 1484.
Secondary Sources
Lexology, “Supreme Court: High Courts and Sessions Courts Can Grant Transit Anticipatory Bail Under Section 438, Cr.P.C.” (27 November 2023). Bar and Bench, “Supreme Court Ruling on Transit Anticipatory Bail: New Law or Old Wine in a New Bottle?” (23 December 2023). CaseMine, “Priya Indoria v. The State of Karnataka: Expanding the Jurisdictional Scope of Anticipatory Bail.”
Author: Barenya Mekap
veritas et lex