Supreme Court: In an appeal against the Judgment passed by the Bombay High Court, wherein the Court concerning the maintainability of anticipatory bail, viewed that although the accused may already be in custody in connection with a money laundering case, yet he would be entitled to pray for anticipatory bail in connection with a different case, the three-Judge Bench of Dr. D.Y. Chandrachud, CJI, J.B. Pardiwala*and Manoj Misra, JJ. held that an application for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 (‘CrPC’) is maintainable at the instance of an accused while he is already in judicial custody in connection with his involvement in a different case.
Issue:
Whether an application for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 (‘CrPC’) maintainable at the instance of an accused while he is already in judicial custody in connection with his involvement in a different case?
Analysis and Decision:
The Court examined the evolution of the concept of anticipatory bail.
After taking note of Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1 the Court clarified that that the court, on its own, should not try to read any other restriction as regards the exercise of its power to consider the plea for grant of anticipatory bail. Wherever parliament intends or desires to exclude or restrict the power of courts, it does so in categorical terms. This is evident from the plain reading of sub-section (4) of Section 438 of the CrPC.
Whether a person, while in custody for a particular offence, can have a “reason to believe” that he may be arrested in relation to some other non-bailable offence?
The Court referred to the decision of Rajasthan High Court in Sunil Kallani v. State of Rajasthan, 2021 SCC OnLine Raj 1654 wherein it was held that once a person is taken in custody in relation to an offence, it is not possible thereafter to arrest him in relation to a different offence as one of the essential conditions for arrest is placing the body of the accused in custody of the police authorities by means of actual touch or confinement. As there cannot be any actual touch or confinement while a person is in custody, he cannot have a “reason to believe” that he may be arrested in relation to a different offence.
The Court said that there are two fundamental fallacies in the reasoning adopted by the Rajasthan High Court. First, the High Court failed to consider the possibility of arrest of the person in custody in relation to a different offence immediately after he is set free from custody in the first offence. In such a scenario, if it is held that the application seeking anticipatory bail in relation to an offence, filed during the period when the applicant is in custody in relation to a different offence, would not be maintainable, then it would amount to precluding the applicant from availing a statutory remedy which he is otherwise entitled to and which he can avail as soon as he is released from custody in the first offence.
Thus, the Court said that in cases where the accused has a “reason to believe” that he may be arrested in relation to an offence different from the one in which he is in custody immediately upon his release, the view taken by the Rajasthan High Court, if allowed to stand, would deprive him of his statutory right of seeking anticipatory bail because it is quite possible that before such a person is able to exercise the aforesaid right, he may be arrested.
The Court opined that no useful purpose would be served by depriving the accused of exercising his statutory right to seek anticipatory bail till his release from custody in the first offence.
The Court said that the second fallacy in the reasoning of the High Court is that there can be no arrest of an accused in relation to a different offence while he is already in custody in relation to some offence.
The Court referred to CBI v. Anupam J. Kulkarni, (1992) 3 SCC 141 , wherein it was held that even if an accused is in judicial custody in connection with the investigation of an earlier case, the investigating agency can formally arrest him in connection with his involvement in a different case and associate him with the investigation of that other case.
The Court laid down two ways by which a person, who is already in custody, may be arrested:
- Firstly, no sooner than he is released from custody in connection with the first case, the police officer can arrest and take him into custody in relation to a different case; and
- Secondly, even before he is set free from the custody in the first case, the police officer investigating the other offence can formally arrest him and thereafter obtain a Prisoner Transit Warrant (‘P.T. Warrant’) under Section 267 of the CrPC from the jurisdictional magistrate for the other offence, and thereafter, on production before the magistrate, pray for remand; or
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Instead of effecting formal arrest, the investigating officer can make an application before the jurisdictional magistrate seeking a P.T. Warrant for the production of the accused from prison. If the conditions required under 267 of the CrPC are satisfied, the jurisdictional magistrate shall issue a P.T. Warrant for the production of the accused in court. When the accused is so produced before the court in pursuance of the P.T. Warrant, the investigating officer will be at liberty to make a request for remanding the accused, either to police custody or judicial custody, as provided in Section 167(1) of the CrPC.
Thus, the Court concluded that as arrest in both the aforesaid circumstances is permissible in law, it would be incorrect to hold that a person, while in custody, the accused cannot have a “reason to believe” that he may be arrested in relation to a different offence.
The Court further took note of Section 46(1) of CrPC and noted that arrest involves actual touch or confinement of the body of the person sought to be arrested. However, arrest can also be effected without actual touch if the person sought to be arrested submits to the custody by words or action.
Supporting the above view, the Court relied on Alderson v. Booth, [1969] 2 Q.B. 216 wherein it was held that the actual seizing or touching of the body of the person to be arrested is not necessary in a case where the arrester by word brings to the notice of the accused that he is under compulsion and thereafter the accused submits to that compulsion.
After taking note of Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 the Court held that an accused is entitled to seek anticipatory bail in connection with an offence so long as he is not arrested in relation to that offence. Once he is arrested, the only remedy available to him is to apply for regular bail either under Section 437 or Section 439 of the CrPC, as the case may be.
The Court further held that there is no express or implied restriction in the CrPC or in any other statute that prohibits the Court of Session or the High Court from entertaining and deciding an anticipatory bail application in relation to an offence, while the applicant is in custody in relation to a different offence. No restriction can be read into Section 438 of the CrPC to preclude an accused from applying for anticipatory bail in relation to an offence while he is in custody in a different offence, as that would be against the purport of the provision and the intent of the legislature. The only restriction on the power of the court to grant anticipatory bail under Section 438 of the CrPC is the one prescribed under sub-section (4) of Section 438 of the CrPC, and in other statutes like the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, Act, 1989, etc.
The Court also held that while a person already in custody in connection with a particular offence apprehends arrest in a different offence, then, the subsequent offence is a separate offence for all practical purposes. This would necessarily imply that all rights conferred by the statute on the accused as well as the investigating agency in relation to the subsequent offence are independently protected.
Further, the Bench held that the investigating agency, if deems necessary for the purpose of interrogation/investigation in an offence, can seek remand of the accused whilst he is in custody in connection with a previous offence so long as no order granting anticipatory bail has been passed in relation to the subsequent offence, subject to grant of anticipatory bail.
The Court highlighted that the right of an accused to protect his personal liberty within the contours of Article 21 of the Constitution of India with the aid of the provision of anticipatory bail as enshrined under Section 438 of the CrPC cannot be defeated or thwarted without a valid procedure established by law.
The Bench also concluded that custody in one case does not have the effect of taking away the apprehension of arrest in a different case.
Before parting, the Court underscored the importance of the rights conferred under the procedural laws as noted in A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602 and State of W.B. v. Anwar Ali Sarkar, (1952) 1 SCC 1
The Court directed the Bombay High Court to proceed to decide the anticipatory bail application filed by the accused on its own merits.
[Dhanraj Aswani v. Amar S. Mulchandani, 2024 SCC OnLine SC 2453, decided on 09-09-2024]
*Judgment Authored by: Justice JB Pardiwala
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