E. CONCLUSION
60. Our examination of the matter has led us to the following conclusions:
i. 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. This is evident from para 39 of
Gurbaksh Singh Sibbia (supra).
ii. 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 Act, 1989, etc.
iii. 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.
iv. The investigating agency, if it 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. However, if an order
granting anticipatory bail in relation to the subsequent offence is
obtained by the accused, it shall no longer be open to the
investigating agency to seek remand of the accused in relation to
the subsequent offence. Similarly, if an order of police remand is
passed before the accused is able to obtain anticipatory bail, it
would thereafter not be open to the accused to seek anticipatory
bail and the only option available to him would be to seek regular bail.
v. We are at one with Mr. Dave 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. He is right in his submission that such procedure should also pass the test of fairness, reasonableness and manifest non-arbitrariness on the anvil of Article 14 of the Constitution of India.
vi. Under Section 438 of the CrPC, the pre-condition for a person to apply for pre-arrest bail is a “reason to believe that he may be
arrested on an accusation of having committed a non-bailable
offence”. Therefore, the only pre-condition for exercising the said
right is the apprehension of the accused that he is likely to be
arrested. In view of the discussion in the preceding paragraphs,
custody in one case does not have the effect of taking away the
apprehension of arrest in a different case.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2501 OF 2024
DHANRAJ ASWANI Vs AMAR S. MULCHANDANI & ANR.
Author: J.B. PARDIWALA, J.
Citation: 2024 INSC 669.
For the convenience of exposition, this judgment is divided into the following
parts:
A. SUBMISSIONS ON BEHALF OF THE APPELLANT...........................4
B. SUBMISSIONS ON BEHALF OF THE RESPONDENT NO. 1
(ORIGINAL ACCUSED).............................................................................7
C. VIEWS OF DIFFERENT HIGH COURTS ON THE ISSUE IN
QUESTION .................................................................................................10
D. ANALYSIS ..................................................................................................25
i. Evolution of the concept of anticipatory bail .......................................25
ii. 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?....................................................................44
iii. Illustrative Examples..............................................................................63
E. CONCLUSION ...........................................................................................65
Criminal Appeal No. 2501/2024 Page 2 of 73
1. A short question of general public importance on which there is great
divergence of judicial opinion that falls for the consideration of this
Court is as under:
“Whether an application for anticipatory bail under Section 438
of the Code of Criminal Procedure, 1973 (for short, “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?”
2. This appeal arises from the judgment and order dated 31.10.2023
passed by the High Court of Judicature at Bombay in Anticipatory Bail
Application No. 2801 of 2023 by which the High Court overruled the
objection raised by the appellant herein (original complainant) as
regards the maintainability of the anticipatory bail application filed by
respondent no. 1 (original accused) in connection with CR No. 806 of
2019 registered with Pimpri Police Station for the offences punishable
under Sections 406, 409, 420, 465, 467, 468, 471 respectively read with
Section 34 of the Indian Penal Code (for short, “IPC”) and thereby took
the view that although respondent no.1 herein may already be in
Criminal Appeal No. 2501/2024 Page 3 of 73
custody in connection with ECIR No. 10 of 2021, yet he would be
entitled to pray for anticipatory bail in connection with a different case.
3. It appears from the materials on record that respondent no. 1 herein
came to be arrested in connection with ECIR No. 10 of 2021.While in
custody, he apprehended arrest in connection with CR No. 806 of 2019
registered against him at the instance of the appellant herein. In such
circumstances, he prayed for anticipatory bail before the High Court.
The appellant herein intervened in the proceedings of said anticipatory
bail application and raised an objection that as respondent no. 1 herein
is already in custody in connection with ECIR No. 10 of 2021, he
cannot pray for anticipatory bail in connection with CR No. 806 of
2019. The objection raised by the appellant herein in his capacity as the
complainant came to be overruled and the High Court proceeded to hold
that although respondent no. 1 herein may be in custody in one case,
yet the same would not preclude him from seeking pre-arrest bail in
connection with a different case. Since the objection was overruled, the
appellant is now before this Court.
Criminal Appeal No. 2501/2024 Page 4 of 73
A. SUBMISSIONS ON BEHALF OF THE APPELLANT
4. Mr. Sidharth Luthra, the learned Senior counsel appearing for the
appellant canvassed the following submissions:
i. The High Court committed a serious error in taking the view that
although a person might be in custody after his arrest in one case,
yet such a person can apply for the grant of pre-arrest bail under
Section 438 of the CrPC in connection with a different case.
ii. The essential part of arrest is placing the corpus (body of the person)
in custody of the police authorities. The natural corollary, therefore,
is that a person who is already in custody cannot have reasons to
believe that he would be arrested as he already stands arrested. The
pre-condition to invoke Section 438 CrPC is that the accused should
have a reason to believe that he “may be arrested”. If the accused is
already in custody, then he can have no reason to believe that he
“may be arrested”.
iii. The salutary provision of Section 438 of the CrPC was enshrined
with a view to see that the liberty of any individual concerned is not
put in jeopardy on frivolous grounds at the instance of unscrupulous
or irresponsible person or officers who may be in charge of the
prosecution. If such is the objective behind the enactment of Section
Criminal Appeal No. 2501/2024 Page 5 of 73
438 of the CrPC, then for a person who is already arrested there is
no question of any humiliation being caused.
iv. If an accused while being in custody in connection with one case, is
granted anticipatory bail under Section 438 of the CrPC in
connection with a different case, then it would not be possible for
him to fulfill the requirement of the condition that may be imposed
under Section 438(2)(i) of the CrPC i.e. to make himself/herself
available for interrogation as and when required. In other words, a
person in custody would not be able to meet or comply with the
condition that may be imposed under Section 438(2)(i) of the CrPC.
This being a material consideration for grant of anticipatory bail, it
would be illogical to permit a person to seek anticipatory bail if he
is unable to satisfy conditions that may be imposed under Section
438(2)(i) of the CrPC.
v. If a person who is already in custody in connection with one case
apprehends arrest in connection with a different case, then he is not
remediless. In such circumstances, he can seek to surrender and pray
for regular bail on the principle of “deemed custody” both in
Magistrate as well as Sessions triable cases.
Criminal Appeal No. 2501/2024 Page 6 of 73
5. Mr. Luthra, with a view to fortify his aforesaid submissions, placed
strong reliance on the following decisions:
i. Kartar Singh v. State of Punjab, [1994] 2 SCR 375, (1994) 3 SCC
569
ii. Gurbaksh Singh Sibbia v. State of Punjab, [1980] 3 SCR 383, (1980)
2 SCC 565
iii. Sushila Aggarwal v. State (NCT of Delhi), [2020] 2 SCR 1, (2020) 5
SCC 1
iv. Sunil Kallani v. State of Rajasthan, 2021 SCC OnLine Raj 1654
v. Rajesh Kumar Sharma v. CBI, 2022 SCC OnLine All 832
vi. Tejesh Suman v. State of Rajasthan, 2023 SCC OnLine SC 76
vii. Bashir Hasan Siddiqui v. State (GNCTD), (2023) SCC OnLine Del
7544
viii. Narinderjit Singh Sahni v. Union of India, [2001] Supp. 4 SCR 114,
(2002) 2 SCC 210.
6. In such circumstances referred to above, the learned Senior counsel
prayed that there being merit in his appeal, the same may be allowed
and the impugned order passed by the High Court be set aside.
Criminal Appeal No. 2501/2024 Page 7 of 73
B. SUBMISSIONS ON BEHALF OF THE RESPONDENT NO. 1
(ORIGINAL ACCUSED)
7. Mr. Siddharth Dave, the learned Senior counsel appearing for the
original accused, vehemently opposed the present appeal and canvassed
the following submissions:
i. The legal maxim ubi jus ibi remedium i.e. where there is a right,
there is a remedy, is recognised as a basic principle of jurisprudence.
A Constitution Bench of this Court in Anita Kushwaha v. Pushap
Sudan reported in (2016) 8 SCC 509 held that the right to access
justice is so inalienable, that no system of governance can possibly
ignore its significance, leave alone afford to deny the same to its
citizens. It was also held that the ancient Roman jurisprudential
maxim ubi jus ibi remedium has contributed to the acceptance of
access to justice as a basic and inalienable human right, which all
civilized societies recognise and enforce.
ii. The right of an accused to apply for pre-arrest bail under Section 438
of the CrPC is intrinsically linked to his right to access the competent
courts to avail his remedies under the law. A person would thus be
entitled to apply for pre-arrest bail under Section 438 of the CrPC in
one case, even though he may be in custody in connection with some
other case.
Criminal Appeal No. 2501/2024 Page 8 of 73
iii. The right of an accused to protect his personal liberty within the
contours of Article 21 of the Constitution of India, by applying for
pre-arrest bail under Section 438 CrPC cannot be eliminated without
a procedure established by law. Further, such procedure should also
pass the test of fairness, reasonableness and manifest nonarbitrariness on the touchstone of Article 14 of the Constitution of
India.
iv. Under Section 438 of the CrPC, the pre-condition for a person to
apply for pre-arrest bail is a “reason to believe that he may be
arrested on accusation of having committed a non-bailable
offence”. Therefore, the only pre-condition for exercising the said
right is the apprehension of the accused that he may be arrested.
v. The arrest of an accused in one case cannot foreclose his right to
apply for pre-arrest bail in a different case, since there is no such
stipulation in the language of Section 438 of the CrPC. The
restrictions on the exercise of power to grant pre-arrest bail under
Section 438 of the CrPC are prescribed under Section 438(4) of the
CrPC which provides that the provisions of Section 438 shall not
apply to cases involving arrest under Sections 376(3), 376AB,
376DA or 376DB respectively of the IPC.
Criminal Appeal No. 2501/2024 Page 9 of 73
vi. A Constitution Bench of this Court, in Sushila Aggarwal (supra)
while considering the statutory restrictions on Section 438 of the
CrPC held that where the Parliament intended to exclude or restrict
the powers of the Court under Section 438 of the CrPC, it did so in
categorical terms (such as Section 438(4)). The omission on the part
of the legislature to restrict the right of any person accused of having
committed a non-bailable offence to seek anticipatory bail can lead
one to assume that neither a blanket restriction can be read into the
text of Section 438 CrPC by this Court, nor can inflexible guidelines
in the exercise of discretion be insisted as that would amount to
judicial legislation.
vii. A statutory restriction on the right to apply for pre-arrest bail is also
found under Sections 18 and 18A(2) respectively of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
(for short, “the Act, 1989”). The said provisions provide that Section
438 of the CrPC shall not apply to cases under the Act, 1989. That
despite the statutory bar under Sections 18 and 18A(2) respectively
of the Act, 1989 a three-Judge Bench of this Court in Prathvi Raj
Chauhan v. Union of India reported in (2020) 4 SCC 727 held that
if a complaint does not make out a prima facie case for applicability
of the Act, 1989 the bar under Sections 18 and 18A(2) respectively
Criminal Appeal No. 2501/2024 Page 10 of 73
of the said Act shall not apply. The aforesaid judgment indicates
the judicial approach of adopting an interpretation in favour of
personal liberty.
8. In such circumstances referred to above, Mr. Dave prayed that there
being no merit in the appeal, the same may be dismissed.
C. VIEWS OF DIFFERENT HIGH COURTS ON THE ISSUE IN
QUESTION
9. In Sunil Kallani (supra), a learned Single Judge of the High Court of
Rajasthan took the view that an application for anticipatory bail would
not be maintainable at the instance of a person who is already arrested
and is in police custody or judicial custody in relation to a different
case. The line of reasoning adopted by the High Court in taking such a
view was that a person who is already in custody cannot have a reason
to believe that he would be arrested as he already stood arrested, albeit
in a different case. The High Court observed that arrest means to
actually touch or confine the body of the person to the custody of a
police officer and an essential part of arrest is placing the corpus, that
is the body of the person, in custody of the police authorities. In light
of this essential requirement to constitute an arrest, a person who is
already in custody cannot have a reason to believe that he may be
Criminal Appeal No. 2501/2024 Page 11 of 73
arrested as he stood already arrested. The High Court tried to fortify its
view by relying on some of the observations made by this Court in
Narinderjit Singh Sahni (supra). A few relevant observations made by
the High Court are extracted hereinbelow:
“17. The Scheme of Code of Criminal Procedure does
not define the word arrest. In Chapter V of Code of
Criminal Procedure, Section 41 lays down when police
may arrest without warrant. Section 41B lays down
procedure of arrest and duties of officer. Section 46
mentions how arrest is to be made.
18. Upon reading Section 46 Cr.P.C. (supra), it is
apparent that arrest would mean to actually touch or
confine the body of the person to custody of the police
officer. Section 167 Cr.P.C. lays down that the custody
may be given to the police for the purpose of
investigation (called as remand) or be sent to jail (called
as judicial custody). Thus the essential part of arrest is
placing the corpus, body of the person in custody of the
police authorities whether of a police station or before
him or in a concerned jail.
19. The natural corollary is therefore that a person who
is already in custody cannot have reasons to believe that
he shall be arrested as he stands already arrested. In
view thereof, the precondition of bail application to be
moved under Section 438 Cr.P.C. i.e. reasons to believe
that he may be arrested” do not survive since a person
is already arrested in another case and is in custody
whether before the police or in jail.
xxx xxx xxx
23. As pointed out by learned counsel for the petitioner
that there may be cases where a person who has already
been arrested in a particular case may be faced with
registering of several FIRs by the persons who do not
want him to be released from jail and in the said
Criminal Appeal No. 2501/2024 Page 12 of 73
circumstances only option available is to take
anticipatory bail in other FIRs as the police would seek
his arrest in all the cases. It may be subsequently
registered against him for non-bailable Offences and in
such an event, there would be infraction of his personal
liberty. However this Court does not agree to the
submissions noticed as above. Once the FIR has been
registered in relation to an offence committed against
any person by an accused he cannot claim to be
protected from offences which he may have committed
with other persons who have their individual right of
registering an FIR against such an accused. The
accused will have to face investigation and subsequent
trial in relation to each and every case individually. The
question whether he may be punished separately or
jointly for other cases is a completely different question
altogether and need not be gone into the present case.
24. However, keeping in view observations
in Narinderjit Singh Sahni, (supra) and considering that
the purpose of preventive arrest by a direction of the
court on an application under Section 438 Cr.P.C.
would be an order in vacuum. As a person is already in
custody with the police this Court is of the view that such
an anticipatory bail application under Section 438
Cr.P.C. would not lie and would be nothing but travesty
of justice in allowing anticipatory bail to such an
accused who is already in custody.
25. Examining the issue from another angle if such an
application is held to be maintainable the result would
be that if an accused is arrested say for an offence
committed of abduction and another case is registered
against him for having committed murder and third case
is- registered against him for having stolen the car
which was used for abduction in a different police
station and the said accused is granted anticipatory bail
in respect to the offence of stealing of the car or in
respect to the offence of having committed murder the
concerned Police Investigating Agency where FIRs
have been registered would be prevented from
conducting individual investigation and making
Criminal Appeal No. 2501/2024 Page 13 of 73
recoveries as anticipatory bail once granted would
continue to operate without limitation as laid down by
the Apex Court in Sushila Aggarwal, (supra). The
concept of. anticipatory bail, as envisaged underSection 438 Cr.P.C. would stand frustrated. The
provisions of grant of anticipatory bail are essentially
to prevent the concerned person from litigation initiated
with the object of injuring and humiliating the applicant
by haying him so arrested and for a person who stands
already arrested, such a factor does not remain
available.
26. In view of above discussion, this Court holds that the
anticipatory bail would not lie and would not be
maintainable if a person is already arrested and is in
custody of police or judicial custody in relation to
another criminal case which may be for similar offence
or for different offences.”
(Emphasis supplied)
10. In the case of Rajesh Kumar Sharma (supra), a learned Single Judge
of the High Court of Allahabad followed the view taken by the High
Court of Rajasthan referred to above.
11. In Bashir Hasan Siddiqui (supra), a learned Single Judge of the High
Court of Delhi, relying on Sunil Kallani (supra) and Rajesh Kumar
Sharma (supra), took a similar view that an application seeking
anticipatory bail would not be maintainable at the instance of a person
who apprehends arrest if such a person is already arrested and is in
custody in connection with a different offence. The relevant
Criminal Appeal No. 2501/2024 Page 14 of 73
observations made by the High Court in paragraph 6 of the said decision
are extracted as under:
“6. Therefore, keeping in view the entire facts and
circumstances and also taking into account the
judgment passed by the Rajasthan High Court in Sunil
Kallani (supra) and subsequently judgment passed by
Allahabad High Court in Rajesh Kumar
Sharma (supra), this Court is in consonance with the
opinions of both the High Court that since the accused
is in custody in another FIR, the anticipatory bail in
other FIR is not maintainable. As a result, the present
petition stands dismissed.”
(Emphasis supplied)
12. In Alnesh Akil Somji v. State of Maharashtra reported in 2021 SCC
OnLine Bom 5276, a learned Single Judge of the High Court of
Judicature at Bombay formulated the following question of law for its
consideration:
“Whether an anticipatory bail application would be
maintainable by an accused who is already arrested and
is in magisterial custody in relation to another crime?”
13. The Bombay High Court also took notice of the decision of the High
Court of Rajasthan in Sunil Kallani (supra). The decision of this Court
in the case of Narinderjit Singh Sahni (supra) was also looked into
and ultimately it was held that an accused has every right, even if he is
arrested in a number of cases, to move the courts for anticipatory bail
in each of the offence registered against him, irrespective of the fact
Criminal Appeal No. 2501/2024 Page 15 of 73
that he is already in custody in relation to a different offence. The High
Court was of the view that the application(s) under Section 438 of the
CrPC would have to be heard and decided on merits independent of the
other cases in which he is already in custody. We may refer to some of
the observations made by the High Court as under:
“8. A plain reading of the provision would show that the
only restriction provided is under Section 438 (4) of the
Cr. PC, which says that the provision will not apply to
accusations of offences which are stated in Section 438
(4) of the Cr.P.C. Similarly, certain special statutes have
excluded the operation of Section 438 of the Cr.P.C. for
accusation of offences punishable under those special
statutes, for example Section 18A of the Schedule Caste
and Schedule Tribes (Prevention of Atrocities) Act,
1989 bars exercise of powers under Section 438 of the
Cr.P.C.
9. The Hon’ble Apex Court in the case of Sushila A
Aggarwal and others (supra), while dealing with the
scope of Section 438 of the Cr.P.C has followed the
decision in the case of Shri Gurbaksh Singh Sibbia and
others Versus State of Punjab and regarding the bar or
restriction on the exercise of power to grant anticipatory
bail, the Hon’ble Apex Court has held as follows:
“62. […] In this background, it is important to
notice that the only bar, or restriction, imposed by
Parliament upon the exercise of the power (to
grant anticipatory bail) is by way of a positive
restriction i.e. in the case where accused are
alleged to have committed offences punishable
under Section 376 (3) or Section 376-AB or
Section 376-DA or Section 376-DB of the Penal
Code. In other words, Parliament has now denied
jurisdiction of the court (i.e. Court of Session and
High Courts) from granting anticipatory bail to
those accused of such offences. The amendment
Criminal Appeal No. 2501/2024 Page 16 of 73
[Code of Criminal Procedure Amendment Act,
2018 introduced Section 438 (4)] reads as follows:
“438. (4) Nothing in this section shall apply
to any case involving the arrest of any
person on accusation of having committed
an offence under sub-section (3) of Section
376 or Section 376-AB or Section 376-DA
or Section 376-DB of the Indian Penal
Code”.
63. Clearly, therefore, where Parliament wished to
exclude or restrict the power of courts, under
Section 438 of the Code, it did so in categorical
terms. Parliament’s omission to restrict the right
of citizens, accused of other offences from the right
to seek anticipatory bail, necessarily leads one to
assume that neither a blanket restriction can be
read into by this Court, nor can inflexible
guidelines in the exercise of discretion, be insisted
upon- that would amount to judicial legislation”.
10. Similarly, the Hon’ble Apex Court has made
following observations in the case of Shri Gurbaksh
Singh Sibbia and others (supra):
“39. Fifthly, the provisions of Section 438 cannot
be invoked after the arrest of the accused. The
grant of “anticipatory bail” to an accused who is
under arrest involves a contradiction in terms,
insofar as the offence or offences for which he is
arrested, are concerned. After arrest, the accused
must seek his remedy under Section 437 or Section
439 of the Code, if he wants to be released on bail
in respect of the offence or offences for which he is
arrested”.
11. It is thus very clear, according to Hon’ble Apex
Court, that anticipatory bail will not be maintainable in
case a person is in custody in the same offence for which
Criminal Appeal No. 2501/2024 Page 17 of 73
pre-arrest bail is sought, the restriction, if any, upon
maintainability of prearrest bail will be there only if a
person is in custody in that particular offence itself.
12. From the above pronouncements, two things are
clear. First, there is no such bar in Cr.P.C or any statute
which prohibits Session or the High Court from
entertaining and deciding an anticipatory bail, when
such person is already in judicial or police custody in
some other offence. Second, the restriction cannot be
stretched to include arrest made in any other offence as
that would be against the purport of the provision.
xxx xxx xxx
14. I may point out here that the case of Narinderjit
Singh Sahni and Another (supra) was in respect of
maintainability of Article 32 wherein relief in the nature
of Section 438 was sought. Even, the said judgment does
not hold in very clear terms that a person arrested in
one offence cannot seek the relief provided under
Section 438 of Cr.PC in another offence merely on the
ground that he stands arrested in another district
offence.
15. In my considered opinion, there was no proper
interpretation of Section 438 of the Cr.PC at the hands
of learned Additional Sessions Judge. Accused has
every right, even if he is arrested in number of cases, to
move in each of offence registered against him
irrespective of the fact that he is already in custody but
for different offence, for the reason that the application
(s) will have to be heard and decided on merits
independent of another crime in which he is already in
custody.
16. One cannot and must not venture, under the garb of
interpretation, to substantiate its own meaning than the
plain and simple particular though provided by statute.
What has not been said cannot be inferred unless the
provision itself gives room for speculation. If the
purpose behind the intendment is discernible sans
Criminal Appeal No. 2501/2024 Page 18 of 73
obscurity and ambiguity, there is no place for
supposition.”
(Emphasis supplied)
14. In Sanjay Kumar Sarangi v. State of Odisha reported in 2024 SCC
OnLine Ori 1334, a learned Single Judge of the High Court of Orissa
took the view that there is no statutory bar for an accused in custody in
connection with a case to pray for grant of anticipatory bail in a
different case registered against him. The court, upon perusal of the
relevant provisions, took the view that arrest means physical
confinement of a person with or without the order of the Court. The
Court noted that Section 167(2) of the CrPC, which governs ‘remand’,
is applicable to a case where the accused is already arrested, and chargesheet has not been filed. The Court observed that there is no specific
provision in the CrPC which governs a situation where a person is
required to be arrested/remanded in connection with a new case when
he is already in custody in connection with some other case and in such
a situation, the accused can only be remanded in connection with the
new case on the order of the competent court. Answering the question
whether such order of remand by the court can be equated with an act
of arrest, the Court held that the purpose of remand as in the case of
arrest is to collect evidence during investigation, and thus both amount
to one and the same thing.
Criminal Appeal No. 2501/2024 Page 19 of 73
15. The High Court proceeded to explain that if a new case is registered
against a person already in custody in connection with one case, the
police in such circumstances can either seek an order of remand from
the court or arrest the accused, as and when he is released from custody
in connection with the other case. The Court explained that it is only in
the latter scenario that an order of anticipatory bail under Section 438
of the CrPC would become effective because it is only after the accused
is released from custody that he can be arrested in relation to the
subsequent case. The Court said that the anticipatory bail operates at a
future time. After being released from custody in the former case, if he
is sought to be arrested in relation to the subsequent case, there is no
reason why he should be precluded from approaching the court
beforehand with the necessary protection in the form of anticipatory
bail.
16. The court clarified that a person cannot be arrested if he is already in
custody in connection with some case, however, his right to obtain an
anticipatory bail in connection with a different case cannot be curtailed
having regard to the scheme of the CrPC. The anticipatory bail, if
granted, shall however be effective only if he is arrested in connection
Criminal Appeal No. 2501/2024 Page 20 of 73
with the subsequent case consequent upon his release from custody in
the previous case.
17. Lastly, the Court observed that there is nothing in the CrPC which takes
away the right of the accused to seek his liberty or of the investigating
agency to investigate the case only because the accused is in custody in
a different case. The Court observed that an accused can exercise his
right of moving the court for anticipatory bail just as the investigating
agency can exercise its right to investigate the subsequent case by
seeking remand of the accused from the court having jurisdiction over
the case. Both the rights can co-exist and operate at their respective and
appropriate times. The court held that if the application of the
investigating agency, seeking remand of the accused whilst he is in
custody in connection with the former case, is allowed, the accused can
no longer pray for anticipatory bail in the subsequent case, as then he
could be said to be technically in custody in connection with the
subsequent case also. In such a scenario, the accused can only seek
regular bail. The Court further elaborated that the grant of anticipatory
bail does not clothe the accused with a licence to avoid investigation or
claim any immunity therefrom.
Criminal Appeal No. 2501/2024 Page 21 of 73
18. We may refer to some of the relevant observations made by the learned
Single Judge as under:
“13. To illustrate, a person is in custody in connection
with a case and a new case is registered against him for
commission of some other offence. Two recourses are
available to the police in such a situation - firstly to seek
an order of remand from the Court if the presence of the
accused is required for investigation or secondly, to
arrest him, as and when he is released from custody in
connection with the previous case. It is only in the
second scenario that an order of anticipatory bail can
become effective because only then can he be ‘arrested’.
It is trite law that the distinction between an order in
case of custody bail and anticipatory bail is that the
former is passed when the accused is already arrested
and in custody and operates as soon as it is passed
(subject to submission of bail bonds etc), while the latter
operates at a future time-when the person not being in
custody, is arrested. This, according to the considered
view of this Court, is the crux of the issue. To amplify,
since an order granting anticipatory bail becomes
effective only when the person is arrested and as it is not
possible to arrest a person already in custody, it follows
that when, on being released from custody in the former
case, he is sought to be arrested in the new case, there
is no reason why he shall be restrained from moving the
Court beforehand to arm himself with necessary
protection in the form of anticipatory bail to protect
himself from such a situation. If such an order is passed
by the Court in his favour, it shall become effective if
and when he is arrested as normally happens. The only
catch is, he cannot be arrested as long as he is in custody
in the first-mentioned case. So, his right to obtain an
order in the new case beforehand that can be effective
only upon his release from the first-mentioned case
cannot be denied under the scheme of the Code.
Criminal Appeal No. 2501/2024 Page 22 of 73
14. Another aspect must also be taken into
consideration - when a person is in custody in
connection with a case and a new case gets registered
against him, it is, for all practical purposes a separate
case altogether. This implies all rights conferred by the
statute on the accused consequent upon registration of
a case against him as well as the investigating agency
are independently protected. There is no provision in the
Code that takes away the right of the accused to seek his
liberty or of the investigating agency to investigate into
the case only because he is in custody in another case.
As already stated, the accused can exercise his right of
moving the court for anticipatory bail which would of
course be effective only upon his release from the earlier
case and in the event of his arrest in the subsequent case.
Similarly, the right of the investigating agency to
investigate/interrogate in the subsequent case can be
exercised by seeking remand of the accused from the
court in the subsequent case. Both these scenarios are
not mutually exclusive and can operate at their
respective and appropriate times. The investigating
agency, if it feels necessary for the purpose of
interrogation/investigation can seek remand of the
accused whilst he is in custody in connection with the
previous case and if such prayer is allowed, the accused
can no longer pray for grant of anticipatory bail as then
he would be technically in custody in connection with
the subsequent case also. Then, he can only seek regular
or custody bail. It is also to be considered that if the
prosecution has the power to register a case against a
person who is in custody in connection with another
case how can the accused be deprived of his right to seek
protection of his liberty in such case? This would
militate against the very principle underlying
Article 21 of the Constitution as also Section 438 of the
Code.
15. This takes the court to the reasoning adopted by the
learned single judge of Rajasthan High Court in the
case of Sunil Kallani (supra) that “…..the concerned
Police Investigating Agency where FIRs have been
registered would be prevented from conducting
Criminal Appeal No. 2501/2024 Page 23 of 73
individual investigation and making recoveries as
anticipatory bail once granted would continue to
operate without limitation as laid down by the Apex
Court in Sushila Aggarwal, (supra)….”
With great respect, this Court is unable to persuade
itself to agree with the above-quoted reasoning in view
of the fact that grant of anticipatory bail does not and
cannot grant the accused a licence to avoid
investigation or clothe him with any immunity therefrom. In fact, sub-section (2) of Section 438 holds the
answer to this question as follows:
(2) When the High Court or the Court of Session
makes a direction under sub-section (1), it may
include such conditions in such directions in the
light of the facts of the particular case, as it may
think fit, including-
(i) a condition that the person shall make
himself available for interrogation by a
police officer as and when required;
xxx xxx xxx
It is needless to mention that an order under subsection
(1) can be passed only upon hearing the Public
Prosecutor. Hence, the prosecution can always insist
upon inclusion of such a condition by the court in the
order grating anticipatory bail. And in so far as
‘recoveries’ are concerned, as already stated, it is
always open to the investigating agency to pray for
remand of the accused, as long as he is in custody, for
such purpose and an order granting anticipatory bail
has not been passed. […]
xxx xxx xxx
17. From a conspectus of the analysis made
hereinbefore thus, this Court holds as follows:
Criminal Appeal No. 2501/2024 Page 24 of 73
(i) There is no statutory bar for an accused in custody in
connection with a case to pray for grant of anticipatory
bail in another case registered against him;
(ii) Anticipatory bail, if granted, shall however be
effective only if he is arrested in connection with the
subsequent case consequent upon his release from
custody in the previous case;
(iii) The investigating agency, if it feels necessary for the
purpose of interrogation/investigation can seek remand
of the accused whilst he is in custody in connection with
the previous case and in which no order granting
anticipatory bail has yet been passed. If such order
granting remand is passed, it would no longer be open
to the accused to seek anticipatory bail but he can seek
regular bail.
18. In the cases at hand, the prosecution has not sought
for nor obtained any order from the Court for remand
of the petitioners in the subsequent cases registered
against them. Thus, this Court holds that the
Anticipatory Bail applications are maintainable...”
(Emphasis supplied)
19. Thus, it appears from the aforesaid discussion that there are divergent
opinions expressed by different High Courts of the country. The
Rajasthan, Delhi and Allahabad High Courts have taken the view that
an anticipatory bail application would not be maintainable if the
accused is already arrested and is in custody in connection with some
offence. On the other hand, the Bombay and Orissa High Courts have
taken the view that even if the accused is in custody in connection with
Criminal Appeal No. 2501/2024 Page 25 of 73
one case, anticipatory bail application at his instance in connection with
a different case is maintainable.
D. ANALYSIS
i. Evolution of the concept of anticipatory bail
20. The Code of Criminal Procedure, 1898 (for short, “the 1898 Code”)
did not contain any specific provision analogous to Section 438 of the
CrPC. In Amir Chand v. The Crown reported in 1949 SCC OnLine
Punj 20, the question before the Full Bench was whether Section 498
of the 1898 Code empowered the High Court or the Court of Session to
grant bail to a person who had not been placed under restraint by arrest
or otherwise. The Full Bench answered the reference as under:
“…The very notion of bail presupposes some form of
previous restraint. Therefore, bail cannot be granted to
a person who has not been arrested and for whose arrest
no warrants have been issued. Section 498, Criminal
Procedure Code, does not permit the High Court or the
Court of Session to grant bail to anyone whose case is
not covered by sections 496 and 497, Criminal
Procedure Code. It follows, therefore, that bail can only
be allowed to a person who has been arrested or
detained without warrant or appears or is brought
before a Court. Such person must be liable to arrest and
must surrender himself before the question of bail can
be considered. In the case of a person who is not under
arrest, but for whose arrest warrants have been issued,
bail can be allowed if he appears in Court and
surrenders himself. No bail can be allowed to a person
at liberty for whose arrest no warrants have been issued.
Criminal Appeal No. 2501/2024 Page 26 of 73
The petitioners in the present case are, therefore, not
entitled to bail. The question referred to the Full Bench
is, therefore, answered in the negative.”
(Emphasis supplied)
21. Under the 1898 Code, the concept of anticipatory or pre-arrest bail was
absent and the need for introduction of a new provision in the CrPC
empowering the High Court and Court of Session to grant anticipatory
bail was pointed out by the 41st Law Commission of India in its report
dated September 24, 1969. It observed thus in para 39.9 of the said report
(Volume I):
“Anticipatory bail
39.9 The suggestion for directing the release of a person
on bail prior to his arrest (commonly known as
“anticipatory bail”) was carefully considered by us.
Though there is a conflict of judicial opinion about the
power of a Court to grant anticipatory bail, the majority
view is that there is no such power under the existing
provisions of the Code. The necessity for granting
anticipatory bail arises mainly because sometimes
influential persons try to implicate their rivals in false
causes for the purpose of disgracing them or for other
purposes by getting detained in jail for some days. In
recent times, the accentuation of political rivalry, this
tendency is showing signs of steady increase. Apart from
false cases, where there are reasonable grounds for
holding that a person accused of an offence is not likely
to abscond, or otherwise misuse his liberty while on
bail, there seems no justification to require him first to
submit to custody, remain in prison for some days and
then apply for bail”
We recommend the acceptance of this suggestion. We
are further of the view that this special power should be
Criminal Appeal No. 2501/2024 Page 27 of 73
conferred only on the High Court and the Court of
Session, and that the order should take effect at the time
of arrest or thereafter.
In order to settle the details of this suggestion, the
following draft of a new section is placed for
consideration:
‘497-A. (1) When any person has a reasonable
apprehension that he would be arrested on an
accusation of having committed a non-bailable offence,
he may apply to the High Court or the Court of Session
for a direction under this section. That court may, in its
discretion, direct that in the event of his arrest, he shall
be released on bail.
(2) A Magistrate taking cognizance of an offence against
that person shall, while taking steps under Section
204(1), either issue summons or a bailable warrant as
indicated in the direction of the court under sub-section
(1).
(3) If any person in respect of whom such a direction is
made is arrested without warrant by an officer in charge
of a police station on an accusation of having committed
that offence, and is prepared either at the time of arrest
or at any time while in the custody of such officer to give
bail, such person shall be released on bail.’
We considered carefully the question of laying down in
the statute certain conditions under which alone
anticipatory bail could be granted. But we found that it
may not be practicable to exhaustively enumerate those
conditions; and moreover, the laying down of such
conditions may be construed as prejudging (partially at
any rate) the whole case. Hence we would leave it to the
discretion of the court and prefer not to fetter such
discretion in the statutory provision itself. Superior
courts will, undoubtedly, exercise their discretion
properly, and not make any observations in the order
granting anticipatory bail which will have a tendency to
prejudice the fair trial of the accused.”
(Emphasis supplied)
Criminal Appeal No. 2501/2024 Page 28 of 73
22. The suggestion made by the Law Commission was, in principle,
accepted by the Central Government which introduced clause 447 in the
Draft Bill of the Code of Criminal Procedure, 1970 with a view to confer
express power on the High Court and the Court of Session to grant
anticipatory bail. The said clause of the draft bill was enacted with
certain modifications and became Section 438 of the CrPC.
23. The Law Commission, in paragraph 31 of its 48th Report (1972), made
the following comments on the aforesaid clause:
“The Bill introduces a provision for the grant of
anticipatory bail. This is substantially in accordance
with the recommendation made by the previous
Commission. We agree that this would be a useful
addition, though we must add that it is in very
exceptional cases that such a power should be
exercised.
We are further of the view that in order to ensure that
the provision is not put to abuse at the instance of
unscrupulous petitioners, the final order should be
made only after notice to the Public Prosecutor. The
initial order should only be an interim one. Further, the
relevant section should make it clear that the direction
can be issued only for reasons to be recorded, and if the
court is satisfied that such a direction is necessary in the
interests of justice.
It will also be convenient to provide that notice of the
interim order as well as of the final orders will be given
to the Superintendent of Police forthwith.”
(Emphasis supplied)
Criminal Appeal No. 2501/2024 Page 29 of 73
24. Section 438 of the CrPC reads thus:
“Discretion for grant of bail to person apprehending
arrest.─(1) Where any person has reason to believe that
he may be arrested on accusation of having committed
a non-bailable offence, he may apply to the High Court
or the Court of Session for a direction under this section
that in the event of such arrest he shall be released on
bail; and that Court may, after taking into
consideration, inter alia, the following factors, namely:-
--
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including the fact as
to whether he has previously undergone imprisonment
on conviction by a Court in respect of any cognizable
offence;
(iii) the possibility of the applicant to flee from justice;
and.
(iv) where the accusation has been made with the object
of injuring or humiliating the applicant by having him
so arrested,
either reject the application forthwith or issue an interim
order for the grant of anticipatory bail:
Provided that, where the High Court or, as the case may
be, the Court of Session, has not passed any interim order
under this sub-section or has rejected the application for
grant of anticipatory bail, it shall be open to an officer
in-charge of a police station to arrest, without warrant
the applicant on the basis of the accusation apprehended
in such application.
(1A) Where the Court grants an interim order under subsection (1), it shall forthwith cause a notice being not less
than seven days notice, together with a copy of such
order to be served on the Public Prosecutor and the
Superintendent of Police, with a view to give the Public
Criminal Appeal No. 2501/2024 Page 30 of 73
Prosecutor a reasonable opportunity of being heard
when the application shall be finally heard by the Court,
(1B) The presence of the applicant seeking anticipatory
bail shall be obligatory at the time of final hearing of the
application and passing of final order by the Court, if on
an application made to it by the Public Prosecutor, the
Court considers such presence necessary in the interest
of justice.
(2) When the High Court or the Court of Session makes
a direction under sub-section (1), it may include such
conditions in such directions in the light of the facts of
the particular case, as it may think fit, including--
(i) a condition that the person shall make himself
available for interrogation by a police officer as and
when required;
(ii) a condition that the person shall not, directly or
indirectly, make any inducement, threat or promise to
any person acquainted with the facts of the case so as to
dissuade him from disclosing such facts to the Court or
to any police officer;
(iii) a condition that the person shall not leave India
without the previous permission of the Court;
(iv) such other condition as may be imposed under subsection (3) of section 437, as if the bail were granted
under that section.
(3) If such person is thereafter arrested without warrant
by an officer in charge of a police station on such
accusation, and is prepared either at the time of arrest or
at any time while in the custody of such officer to give
bail, he shall be released on bail; and if a Magistrate
taking cognizance of such offence decides that a warrant
should be issued in the first instance against that person,
he shall issue a bailable warrant in conformity with the
direction of the Court under sub-section (1).
Criminal Appeal No. 2501/2024 Page 31 of 73
(4) Nothing in this section shall apply to any case
involving the arrest of any person on accusation of
having committed an offence under sub-section (3) of
section 376 or section 376AB or section 376DA or
section 376DB of the Indian Penal Code (45 of 1860).”
25. The Statement of Objects and Reasons accompanying the bill for
introducing Section 438 in the CrPC indicates that the legislature felt that
it was imperative to evolve a device by which an alleged accused is not
compelled to face ignominy and disgrace at the instance of influential
people who try to implicate their rivals in false cases. The purpose behind
incorporating Section 438 in the CrPC was to recognise the importance
of personal liberty and freedom in a free and democratic country. A
careful reading of this section reveals that the legislature was keen to
ensure respect for the personal liberty of individuals by pressing in
service the age-old principle that an individual is presumed to be
innocent till he is found guilty by the court. [See: Siddharam
Satlingappa Mhetre v. State of Maharashtra and Others reported in
(2011) 1 SCC 694].
26. In the context of anticipatory bail, this Court, in Siddharam Satlingappa
Mhetre (supra), discussed the relevance and importance of personal
liberty as under:
Criminal Appeal No. 2501/2024 Page 32 of 73
“36. All human beings are born with some unalienable
rights like life, liberty and pursuit of happiness. The
importance of these natural rights can be found in the
fact that these are fundamental for their proper
existence and no other right can be enjoyed without the
presence of right to life and liberty. Life bereft of liberty
would be without honour and dignity and it would lose
all significance and meaning and the life itself would not
be worth living. That is why “liberty” is called the very
quintessence of a civilised existence.
37. Origin of “liberty” can be traced in the ancient
Greek civilisation. The Greeks distinguished between
the liberty of the group and the liberty of the individual.
In 431 BC, an Athenian statesman described that the
concept of liberty was the outcome of two notions,
firstly, protection of group from attack and secondly, the
ambition of the group to realise itself as fully as possible
through the self-realisation of the individual by way of
human reason. Greeks assigned the duty of protecting
their liberties to the State. According to Aristotle, as the
State was a means to fulfil certain fundamental needs of
human nature and was a means for development of
individuals' personality in association of fellow citizens
so it was natural and necessary to man. Plato found his
“republic” as the best source for the achievement of the
self-realisation of the people.
xxx xxx xxx
43. A distinguished former Attorney General for India,
M.C. Setalvad in his treatise War and Civil
Liberties observed that the French Convention
stipulates common happiness as the end of the society,
whereas Bentham postulates the greatest happiness of
the greatest number as the end of law. Article 19 of the
Indian Constitution averts to freedom and it enumerates
certain rights regarding individual freedom. These
rights are vital and most important freedoms which lie
at the very root of liberty. He further observed that the
concept of civil liberty is essentially rooted in the
philosophy of individualism. According to this doctrine,
Criminal Appeal No. 2501/2024 Page 33 of 73
the highest development of the individual and the
enrichment of his personality are the true function and
end of the State. It is only when the individual has
reached the highest state of perfection and evolved what
is best in him that society and the State can reach their
goal of perfection. In brief, according to this doctrine,
the State exists mainly, if not solely, for the purpose of
affording the individual freedom and assistance for the
attainment of his growth and perfection. The State exists
for the benefit of the individual.
xxx xxx xxx
49. An eminent English Judge, Lord Alfred Denning
observed:
“By personal freedom I mean freedom of every
law-abiding citizen to think what he will, to say
what he will, and to go where he will on his
lawful occasion without hindrance from any
person…. It must be matched, of course, with
social security by which I mean the peace and
good order of the community in which we live.”
50. An eminent former Judge of this Court, Justice H.R.
Khanna in a speech as published in 2 IJIL, Vol. 18
(1978), p. 133 observed that
“… Liberty postulates the creation of a climate
wherein there is no suppression of the human
spirits, wherein, there is no denial of the
opportunity for the full growth of human
personality, wherein head is held high and there
is no servility of the human mind or enslavement
of the human body.””
27. In Kartar Singh (supra), a Constitution Bench of this Court held that
there is no constitutional or fundamental right to seek anticipatory bail.
In the said case, this Court was called upon to consider the
Criminal Appeal No. 2501/2024 Page 34 of 73
constitutional validity of sub-section (7) of Section 20 of the Terrorists
and Disruptive Activities (Prevention) Act, 1987. The Constitution
Bench also looked into the validity of Section 9 of the Code of Criminal
Procedure (U.P. Amendment) Act, 1976 which deleted the operation of
Section 438 of the CrPC in the State of Uttar Pradesh with effect from
28.11.1975. In the aforesaid context, Justice Ratnavel Pandian speaking
for himself and on behalf of four other Judges observed as under:
“326. The High Court of Punjab and Haryana in Bimal
Kaur [AIR 1988 P&H 95 : (1988) 93 Punj LR 189 :
1988 Cri LJ 169] has examined a similar challenge as
to the vires of Section 20(7) of TADA Act, and held thus:
“In my opinion Section 20(7) is intra vires the
provision of Article 14 of the Constitution in that
the persons charged with the commission of
terrorist act fall in a category which is distinct
from the class of persons charged with commission
of offences under the Penal Code and the offences
created by other statutes. The persons indulging in
terrorist act form a member of well organised
secret movement. The enforcing agencies find it
difficult to lay their hands on them. Unless the
Police is able to secure clue as to who are the
persons behind this movement, how it is organised,
who are its active members and how they operate,
it cannot hope to put an end to this movement and
restore public order. The Police can secure this
knowledge only from the arrested terrorists after
effective interrogation. If the real offenders
apprehending arrest are able to secure
anticipatory bail then the police shall virtually be
denied the said opportunity.”
327. It is needless to emphasise that both the Parliament
as well as the State Legislatures have got legislative
Criminal Appeal No. 2501/2024 Page 35 of 73
competence to enact any law relating to the Code of
Criminal Procedure. No provision relating to
anticipatory bail was in the old Code and it was
introduced for the first time in the present Code of 1973
on the suggestion made of the Forty-first Report of the
Law Commission and the Joint Committee Report. It
may be noted that this section is completely omitted in
the State of Uttar Pradesh by Section 9 of the Code of
Criminal Procedure (Uttar Pradesh Amendment) Act,
1976 (U.P. Act No. 16 of 1976) w.e.f. 28-11-1975. In the
State of West Bengal, proviso is inserted to Section
438(1) of the Code w.e.f. 24-12-1988 to the effect that
no final order shall be made on an application filed by
the accused praying for anticipatory bail in relation to
an offence punishable with death, imprisonment for life
or imprisonment for a term of not less than seven years,
without giving the State not less than seven days' notice
to present its case. In the State of Orissa, by Section 2 of
Orissa Act 11 of 1988 w.e.f. 28-6-1988, a proviso is
added to Section 438 stating that no final order shall be
made on an application for anticipatory bail without
giving the State notice to present its case for offence
punishable with death, imprisonment for life or
imprisonment for a term of not less than seven years.
xxx xxx xxx
329. Further, at the risk of repetition, we may add that
Section 438 is a new provision incorporated in the
present Code creating a new right. If that new right is
taken away, can it be said that the removal of Section
438 is violative of Article 21. In Gurbaksh
Singh [(1980) 2 SCC 565 : 1980 SCC (Cri) 465 : (1980)
3 SCR 383] , there is no specific statement that the
removal of Section 438 at any time will amount to
violation of Article 21 of the Constitution.”
(Emphasis supplied)
28. The aforesaid decision was discussed in the course of the hearing of this
case for the limited proposition that there is no constitutional or
Criminal Appeal No. 2501/2024 Page 36 of 73
fundamental right to seek anticipatory bail. Section 438 of the CrPC is
just a statutory right.
29. In Gurbaksh Singh Sibbia (supra), a Constitution Bench of this Court
(speaking through Justice Y.V. Chandrachud, Chief Justice, as his
Lordship then was) undertook an extensive analysis of the provision of
anticipatory bail. This Constitution Bench decision can be termed as a
profound and passionate essay on how personal liberty under the
Constitution can be consistent with needs of investigations and why this
Court should avoid any generalisation that would take away the
discretion of the courts dealing with a new set of facts in each case.
Chief Justice Y.V. Chandrachud observed thus:
“8. […] Attendant upon such investigations, when the
police are not free agents within their sphere of duty, is
a great amount of inconvenience, harassment and
humiliation. That can even take the form of the parading
of a respectable person in handcuffs, apparently on way
to a Court of justice. The foul deed is done when an
adversary is exposed to social ridicule and obloquy, no
matter when and whether a conviction is secured or is
at all possible. It is in order to meet such situations,
though not limited to these contingencies, that the power
to grant anticipatory bail was introduced into the Code
of 1973.
xxx xxx xxx
12. […] The legislature conferred a wide discretion on
the High Court and the Court of Session to grant
anticipatory bail because it evidently felt, firstly, that it
Criminal Appeal No. 2501/2024 Page 37 of 73
would be difficult to enumerate the conditions under
which anticipatory bail should or should not be granted
and secondly, because the intention was to allow the
higher courts in the echelon a somewhat free hand in the
grant of relief in the nature of anticipatory, bail. That is
why, departing from the terms of Sections 437 and 439,
Section 438(1) uses the language that the High Court or
the Court of Session “may, if it thinks fit” direct that the
applicant be released on bail. Sub-section (2) of Section
438 is a further and clearer manifestation of the same
legislative intent to confer a wide discretionary power
to grant anticipatory bail. It provides that the High
Court or the Court of Session, while issuing a direction
for the grant of anticipatory bail, “may include such
conditions in such directions in the light of the facts of
the particular case, as it may think fit”, including the
conditions which are set out in Clauses (i) to (iv) of Subsection(2).
xxx xxx xxx
14. Generalisations on matters which rest on discretion
and the attempt to discover formulae of universal
application when facts are bound to differ from case to
case frustrate the very purpose of conferring discretion.
No two cases are alike on facts and therefore, courts
have to be allowed a little free play in the joints if the
conferment of discretionary power is to be meaningful.
There is no risk involved in entrusting a wide discretion
to the Court of Session and the High Court in granting
anticipatory bail because, firstly, these are higher
courts manned by experienced persons, secondly, their
orders are not final but are open to appellate or
revisional scrutiny and above all because, discretion
has always to be exercised by courts judicially and not
according to whim, caprice or fancy. On the other hand,
there is a risk in foreclosing categories of cases in which
anticipatory bail may be allowed because life throws up
unforeseen possibilities and offers new challenges.
Judicial discretion has to be free enough to be able to
take these possibilities in its stride and to meet these
challenges.
Criminal Appeal No. 2501/2024 Page 38 of 73
15. […] While laying down cast-iron rules in a matter
like granting anticipatory bail, as the High Court has
done, it is apt to be overlooked that even judges can have
but an imperfect awareness of the needs of new
situations. Life is never static and every situation has to
be assessed in the context of emerging concerns as and
when it arises.”
30. As regards making out a ‘special case’ to seek anticipatory bail, this
Court in Gurbaksh Singh Sibbia (supra) said:
“21. […] A wise exercise of judicial power inevitably
takes care of the evil consequences which are likely to
flow out of its intemperate use. Every kind of judicial
discretion, whatever may be the nature of the matter in
regard to which it is required to be exercised, has to be
used with due care and caution. In fact, an awareness of
the context in which the discretion is required to be
exercised and of the reasonably foreseeable
consequences of its use, is the hallmark of a prudent
exercise of judicial discretion. One ought not to make a
bugbear of the power to grant anticipatory bail.
xxx xxx xxx
27. […] An accused person who enjoys freedom is in a
much better position to look after his case and to
properly defend himself than if he were in custody. As a
presumably innocent person he is therefore entitled to
freedom and every opportunity look after his own case.
A presumably innocent person must have his freedom to
enable him to establish his innocence.”
31. In Gurbaksh Singh Sibbia (supra), this Court emphasized that the
applicant must have a tangible reason to believe. Vague apprehension
will not do. Secondly, it held that the High Court or the Court of Session
Criminal Appeal No. 2501/2024 Page 39 of 73
should not ask an applicant to go before the Magistrate to try his luck
under Section 437 of the CrPC. It was also observed that once the
accused is arrested, Section 438 of the CrPC ceases to play any role
with reference to the offence or offences for which he is arrested. This
Court also cautioned against passing a blanket order for anticipatory
bail.
32. The following principles of law as regards the grant of anticipatory bail
can be discerned from Gurbaksh Singh Sibbia (supra):
i. The applicant must genuinely show the “reason to believe”
that he may be arrested for a non-bailable offence. Mere
fear is not belief and the grounds on which the belief of the
applicant is based must be capable of being examined by
the Court objectively. Specific events and facts must be
disclosed to enable the Court to judge the reasonableness of
belief or likelihood of arrest, the existence of which is the
sine qua non in the exercise of the power to grant
anticipatory bail.
ii. The High Court or the Court of Session must apply its mind
to the question of anticipatory bail and should not leave it
to the discretion of the Magistrate under Section 437 CrPC.
Criminal Appeal No. 2501/2024 Page 40 of 73
iii. Filing of the FIR is not a condition precedent. However,
imminence of a likely arrest founded on the reasonable
belief must be shown.
iv. Anticipatory bail can be granted so long as the applicant is
not arrested in connection with that case/offence.
v. Section 438 of the CrPC cannot be invoked by the accused
in respect of the offence(s)/case in which he has been
arrested. The remedy lies under Section 437 or 439 of the
CrPC, as the case may be, for the offence for which he is
arrested.
vi. The normal rule is to not limit the operation of the order in
relation to a period of time.
33. On account of various decisions of benches of lesser strength than in
Gurbaksh Singh Sibbia (supra) taking a view curtailing the scope of
the findings in the said case, the scope of Section 438 of the CrPC came
to be considered yet again in Siddharam Satlingappa Mhetre (supra).
A two-Judge Bench in Siddharam Satlingappa Mhetre (supra) held
that the intervening decisions between 1980 and 2011 curtailing the
scope of Gurbaksh Singh Sibbia (supra) were per incuriam.
Criminal Appeal No. 2501/2024 Page 41 of 73
34. However, since Siddharam Satlingappa Mhetre (supra) was delivered
by a coram of two Judges, the matter again reached the Constitution
Bench in the judgment rendered in the case of Sushila Aggarwal
(supra) laying down the following principles:
i. An application for anticipatory bail should be based on
concrete facts (and not vague or general allegations). It is
not essential that an application should be moved only after
an FIR is filed.
ii. It is advisable to issue a notice on the anticipatory bail
application to the Public Prosecutor.
iii. Nothing in Section 438 of the CrPC compels or obliges
courts to impose conditions limiting relief in terms of time.
The courts would be justified – and ought to impose
conditions spelt out in Section 437(3) of the CrPC [by
virtue of Section 438(2)]. The need to impose other
restrictive conditions would have to be judged on a case-tocase basis.
iv. Courts ought to be generally guided by considerations such
as the nature and gravity of the offences, the role attributed
to the applicant, and the facts of the case, while considering
whether to grant anticipatory bail or not.
Criminal Appeal No. 2501/2024 Page 42 of 73
v. Once granted, Anticipatory bail can, depending on the
conduct and behaviour of the accused, continue after filing
of the chargesheet till the end of trial.
vi. An order of anticipatory bail should not be a “blanket”
order and should be confined to a specific incident.
vii. An order of anticipatory bail does not limit the rights of the
police to conduct investigation.
viii. The observations in Gurbaksh Singh Sibbia (supra)
regarding “limited custody” or “deemed custody” would be
sufficient for the purpose of fulfilling the provisions of
Section 27 of the Indian Evidence Act, 1872.
ix. The police can seek cancellation of anticipatory bail under
Section 439(2) of the CrPC.
x. The correctness of an order granting bail can be considered
by the appellate or superior court.
35. The aforesaid principles as regards the grant of anticipatory bail
discernible from the decision of this Court in Sushila Aggarwal (supra)
are general and may not have a direct bearing on the question we are
called upon to consider and answer. What is important to be taken note
of in the decision in Sushila Aggarwal (supra) is the following:
Criminal Appeal No. 2501/2024 Page 43 of 73
“62. … In this background, it is important to notice that
the only bar, or restriction, imposed by Parliament upon
the exercise of the power (to grant anticipatory bail) is
by way of a positive restriction i.e. in the case where
accused are alleged to have committed offences
punishable under Section 376 (3) or Section 376-AB or
Section 376-DA or Section 376-DB of the Penal Code.
In other words, Parliament has now denied jurisdiction
of the courts (i.e. Court of Session and High Courts)
from granting anticipatory bail to those accused of such
offences. […]
63. Clearly, therefore, where Parliament wished to
exclude or restrict the power of courts, under Section
438 of the Code, it did so in categorical terms.
Parliament's omission to restrict the right of citizens,
accused of other offences from the right to seek
anticipatory bail, necessarily leads one to assume that
neither a blanket restriction can be read into by this
Court, nor can inflexible guidelines in the exercise of
discretion, be insisted upon-that would amount to
judicial legislation”.
(Emphasis supplied)
36. What has been conveyed in the aforesaid decision is 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 very much evident from
the plain reading of sub-section (4) of Section 438 of the CrPC itself.
The dictum as laid is that the court should not read any blanket
restriction nor should it insist for some inflexible guidelines as that
would amount to judicial legislation.
Criminal Appeal No. 2501/2024 Page 44 of 73
ii. 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?
37. The line of reasoning adopted by the High Court of Rajasthan in Sunil
Kallani (supra) was 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.
38. However, 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 the 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.
Criminal Appeal No. 2501/2024 Page 45 of 73
Thus, 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.
39. In our opinion, 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. We find force in the
submission of the respondent that if the accused is not allowed to obtain
a pre-arrest bail in relation to a different offence, while being in custody
in one offence, then he may get arrested by the police immediately upon
his release in the first case, even before he gets the opportunity to
approach the competent court and file an application for the grant of
anticipatory bail in relation to the said particular offence. This practical
shortcoming in the approach taken by the Rajasthan High Court is prone
to exploitation by investigating agencies for the purpose of putting the
personal liberty of the accused in peril.
Criminal Appeal No. 2501/2024 Page 46 of 73
40. 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. Although there is no
specific provision in the CrPC which provides for the arrest of an
accused in relation to an offence while he is already in judicial custody
in a different offence, yet this Court explained in Central Bureau of
Investigation, Special Investigation Cell-I, New Delhi v. Anupam J.
Kulkarni reported in (1992) 3 SCC 141 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. In other words, this Court clarified that even when a
person is in judicial custody, he can be shown as arrested in respect of
any number of other crimes registered elsewhere in the country.
Reliance was placed by this Court on the decision of Punjab & Haryana
High Court in S. Harsimran Singh v. State of Punjab reported in 1984
Cri LJ 253 wherein it was held that there is no inflexible bar under the
law against the re-arrest of a person who is already in judicial custody
in relation to a different offence. The High Court held that judicial
custody could be converted into police custody by an order of the
Magistrate under Section 167(2) of the CrPC for the purpose of
Criminal Appeal No. 2501/2024 Page 47 of 73
investigating the other offence. The relevant paragraphs of Anupam J.
Kulkarni (supra) are extracted hereinbelow:
“11. A question may then arise whether a person
arrested in respect of an offence alleged to have been
committed by him during an occurrence can be detained
again in police custody in respect of another offence
committed by him in the same case and which fact comes
to light after the expiry of the period of first fifteen days
of his arrest. The learned Additional Solicitor-General
submitted that as a result of the investigation carried on
and the evidence collected by the police the arrested
accused may be found to be involved in more serious
offences than the one for which he was originally
arrested and that in such a case there is no reason as to
why the accused who is in magisterial custody should
not be turned over to police custody at a subsequent
stage of investigation when the information discloses his
complicity in more serious offences. We are unable to
agree. In one occurrence it may so happen that the
accused might have committed several offences and the
police may arrest him in connection with one or two
offences on the basis of the available information and
obtain police custody. If during the investigation his
complicity in more serious offences during the same
occurrence is disclosed that does not authorise the
police to ask for police custody for a further period after
the expiry of the first fifteen days. If that is permitted
then the police can go on adding some offence or the
other of a serious nature at various stages and seek
further detention in police custody repeatedly, this
would defeat the very object underlying Section 167.
However, we must clarify that this limitation shall not
apply to a different occurrence in which complicity of
the arrested accused is disclosed. That would be a
different transaction and if an accused is in judicial
custody in connection with one case and to enable the
police to complete their investigation of the other case
they can require his detention in police custody for the
purpose of associating him with the investigation of the
other case. In such a situation he must be formally
Criminal Appeal No. 2501/2024 Page 48 of 73
arrested in connection with other case and then obtain
the order of the Magistrate for detention in police
custody. The learned Additional Solicitor-General
however strongly relied on some of the observations
made by Hardy, J. in Mehar Chand case [(1969) 5 DLT
179] extracted above in support of his contention
namely that an arrested accused who is in judicial
custody can be turned over to police custody even after
the expiry of first fifteen days at a subsequent stage of
the investigation in the same case if the information
discloses his complicity in more serious offences. We
are unable to agree that the mere fact that some more
offences alleged to have been committed by the arrested
accused in the same case are discovered in the same
case would by itself render it to be a different case. All
these offences including the so-called serious offences
discovered at a later stage arise out of the same
transaction in connection with which the accused was
arrested. Therefore there is a marked difference
between the two situations. The occurrences
constituting two different transactions give rise to two
different cases and the exercise of power under Sections
167(1) and (2) should be in consonance with the object
underlying the said provision in respect of each of those
occurrences which constitute two different cases.
Investigation in one specific case cannot be the same as
in the other. Arrest and detention in custody in the
context of Sections 167(1) and (2) of the Code has to be
truly viewed with regard to the investigation of that
specific case in which the accused person has been
taken into custody. In S. Harsimran Singh v. State of
Punjab [1984 Cri LJ 253 : ILR (1984) 2 P&H 139] a
Division Bench of the Punjab and Haryana High Court
considered the question whether the limit of police
custody exceeding fifteen days as prescribed by Section
167(2) is applicable only to a single case or is attracted
to a series of different cases requiring investigation
against the same accused and held thus: (p. 257, para
10-A)
“We see no inflexible bar against a person in
custody with regard to the investigation of a
particular offence being either re-arrested for the
Criminal Appeal No. 2501/2024 Page 49 of 73
purpose of the investigation of an altogether
different offence. To put it in other words, there is
no insurmountable hurdle in the conversion of
judicial custody into police custody by an order of
the Magistrate under Section 167(2) of the Code
for investigating another offence. Therefore, a rearrest or second arrest in a different case is not
necessarily beyond the ken of law.”
This view of the Division Bench of the Punjab and
Haryana High Court appears to be practicable and also
conforms to Section 167. We may, however, like to make
it explicit that such re-arrest or second arrest and
seeking police custody after the expiry of the period of
first fifteen days should be with regard to the
investigation of a different case other than the specific
one in respect of which the accused is already in
custody. A literal construction of Section 167(2) to the
effect that a fresh remand for police custody of a person
already in judicial custody during investigation of a
specific case cannot under any circumstances be issued,
would seriously hamper the very investigation of the
other case the importance of which needs no special
emphasis. The procedural law is meant to further the
ends of justice and not to frustrate the same. It is an
accepted rule that an interpretation which furthers the
ends of justice should be preferred. It is true that the
police custody is not the be-all and end-all of the whole
investigation but yet it is one of its primary requisites
particularly in the investigation of serious and heinous
crimes. The legislature also noticed this and permitted
limited police custody. The period of first fifteen days
should naturally apply in respect of the investigation of
that specific case for which the accused is held in
custody. But such custody cannot further held to be a
bar for invoking a fresh remand to such custody like
police custody in respect of an altogether different case
involving the same accused.
xxx xxx xxx
Criminal Appeal No. 2501/2024 Page 50 of 73
13. … There cannot be any detention in the police
custody after the expiry of first fifteen days even in a
case where some more offences either serious or
otherwise committed by him in the same transaction
come to light at a later stage. But this bar does not apply
if the same arrested accused is involved in a different
case arising out of a different transaction. Even if he is
in judicial custody in connection with the investigation
of the earlier case he can formally be arrested regarding
his involvement in the different case and associate him
with the investigation of that other case and the
Magistrate can act as provided under Section 167(2)
and the proviso and can remand him to such custody as
mentioned therein during the first period of fifteen days
and thereafter in accordance with the proviso as
discussed above. …”
(Emphasis supplied)
41. It was submitted on behalf of the appellant that a person already in
judicial custody in relation to an offence, cannot have a “reason to
believe” that he may be arrested on the accusation of having committed
a different offence. However, we do not find any merit in the aforesaid
submission. There are two ways by which a person, who is already in
custody, may be arrested –
a. First, 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
Criminal Appeal No. 2501/2024 Page 51 of 73
b. 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
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. At that
time, the jurisdictional magistrate shall consider the request of
the investigating officer, peruse the case diary and the
representation of the accused and then, pass an appropriate
Criminal Appeal No. 2501/2024 Page 52 of 73
order, either remanding the accused or declining to remand the
accused. [See: State v. K.N. Nehru reported in 2011 SCC
OnLine Mad 1984]
42. As arrest in both the aforesaid circumstances is permissible in law, it
would be incorrect to hold that a person, while in custody, cannot have
a “reason to believe” that he may be arrested in relation to a different
offence. As a logical extension of this, it can also be said that when
procedural law doesn’t preclude the investigating agency from arresting
a person in relation to a different offence while he is already under
custody in some previous offence, the accused too cannot be precluded
of his statutory right to apply for anticipatory bail only on the ground
that he is in custody in relation to a different offence.
43. The procedure for arrest of the accused in relation to an offence after
he is released from custody in the first offence would be similar to the
procedure of arrest which is required to be followed in any other
cognizable offence. However, we think it is necessary to shed some
light on the procedure to effect arrest in the second category of cases,
that is, where the investigating agency arrests the accused in relation to
an offence while he is in custody in relation to a different offence.
Criminal Appeal No. 2501/2024 Page 53 of 73
44. As discussed in the preceding paragraphs, an accused could be arrested
either when he is free or when he is in custody in some offence.
Similarly, an arrest can be made by a police officer either without a
warrant or with a warrant issued by a court. Thus, the following
possibilities emerge:
a. If an accused is arrested without a warrant while he is free and
not in custody, then he has to be produced before the nearest
Magistrate, who may remand him to police or judicial custody or
may grant bail if applied for by the accused.
b. If an accused is arrested with a warrant while he is free and not
in custody, then Section 81 of the CrPC permits the production
of such a person before the court issuing the warrant.
c. If an accused is arrested with or without a warrant while he is
already in custody in one offence, then it is only under Section
267 of the CrPC that he can be removed from such custody and
produced before the Magistrate under whose territorial
jurisdiction the other offence is registered.
45. Section 46(1) of the CrPC reads as under:
“46. Arrest how made.—(1) In making an arrest the
police officer or other person making the same shall
actually touch or confine the body of the person to be
Criminal Appeal No. 2501/2024 Page 54 of 73
arrested, unless there be a submission to the custody by
word or action.
Provided that where a woman is to be arrested, unless
the circumstances indicate to the contrary, her
submission to custody on an oral intimation of arrest
shall be presumed and, unless the circumstances
otherwise require or unless the police officer is a female,
the police officer shall not touch the person of the
woman for making her arrest.”
46. Thus, the plain reading of the aforesaid makes it clear 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.
47. The term ‘arrest’ is not defined either in the procedural Acts or in the
various substantive Acts, though Section 46, CrPC, lays down the mode
of arrest to be effected. Black’s Law Dictionary (5th Edition, 1979)
defines arrest as follows:
“To deprive a person of his liberty by legal authority.
Taking, under real or assumed authority, custody of
another for the purpose of holding or detaining him to
answer a criminal charge or civil demand. Arrest
involves the authority to arrest, the assertion of that
authority with the intent to effect an arrest, and the
restraint of the person to be arrested. All that is required
for an 'arrest' is some act by officer indicating his
intention to detain or take person into custody and
thereby subject that person to the actual control and will
Criminal Appeal No. 2501/2024 Page 55 of 73
of the officer, as formal declaration of arrest is
required.”
48. Similarly, the term ‘custody’ too is not defined either in the CrPC or
the IPC. The Corpus Juris Secondum (Vol. 25 at Page 69) defines
‘custody’ as follows:
“When it is applied to persons, it implies restraint and
may or may not imply physical force sufficient to
restrain depending on the circumstances and with
reference to persons charged with crime, it has been
defined as meaning on actual confinement or the present
means of enforcing it, the detention of the person
contrary to his will. Applied to things, it means to have
a charge or safe-keeping, and connotes control and
includes as well, although it does not require, the
element of physical or manual possession, implying a
temporary physical control merely and responsibility
for the protection and preservation of the thing in
custody. So used, the word does not connote dominion
or supremacy of authority. The said term has been
defined as meaning the keeping, guarding, care, watch,
inspection, preservation or security of a thing, and
carries with it the idea of the thing being within the
immediate personal care and control of the prisoner to
whose custody it is subjected; charge; charge to keep,
subject to order or direction; immediate charge and
control and not the final absolute control of ownership.”
[See: Roshan Beevi and others v. Joint Secretary to
Government of Tamil Nadu and others, 1983 SCC OnLine
Mad 163]
49. The Rajasthan High Court proceeded on the assumption that there can
be no arrest while a person is in judicial custody because it is not
possible for the police officer to arrest him without actual touch or
Criminal Appeal No. 2501/2024 Page 56 of 73
confinement while such person is under custody. However, we are
unable to agree with the view taken by the High Court for the reason
that a lawful arrest can be made even without actually seizing or
touching the body. Actions or words which successfully bring to the
notice of the accused that he is under a compulsion and thereafter cause
him to submit to such compulsion will also be sufficient to constitute
arrest. This Court in State of U.P. v. Deoman Upadhyaya reported in
AIR 1960 SC 1125 held that submission to the custody by word or
action by a person is sufficient so as to constitute arrest under Section
46 of the CrPC.
50. In the aforesaid context, we may also refer to and rely upon the decision
of the Queen’s Bench in Alderson v. Booth reported in [1969] 2 All ER
271. The relevant observations are as under:
“There are a number of cases, both ancient and modern,
as to what constitutes an arrest, and whereas there was
a time when it was held that there could be no lawful
arrest unless there was an actual seizing or touching, it
is quite clear that is no longer the law. There may be an
arrest by mere words, by saying “I arrest you” without
any touching, provided of course that the accused
submits and goes with the police officer. Equally it is
clear, as it seems to me, that an arrest is constituted
when any form of words in used which, in the
circumstances, of the case, were calculated to bring to
the accused's notice, and did bring to the accused's
Criminal Appeal No. 2501/2024 Page 57 of 73
notice, that he was under compulsion and thereafter he
submitted to that compulsion.”
(Emphasis supplied)
51. The aforesaid decision fortifies the view 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. This is in conformity with the modality of the arrest
contemplated under Section 46 of the CrPC wherein also it is provided
that the submission of a person to be arrested to the custody of the
arrester by word or action can amount to an arrest. The essence of the
decision in Alderson (supra) is that there must be an actual seizing or
touching, and in the absence of that, it must be brought to the notice of
the person to be arrested that he is under compulsion, and as a result of
such notice, the said person should submit to that compulsion, and then
only the arrest is consummated.
52. As pointed out in the preceding paragraphs, a police officer can
formally arrest a person in relation to an offence while he is already in
custody in a different offence. However, such formal arrest doesn’t
bring the accused in the custody of the police officer as the accused
continues to remain in the custody of the Magistrate who remanded him
Criminal Appeal No. 2501/2024 Page 58 of 73
to judicial custody in the first offence. Once such formal arrest has been
made, the police officer has to make an application under Section 267
of the CrPC before the Jurisdictional Magistrate for the issuance of a
P.T. Warrant without delay. If, based on the requirements prescribed
under Section 267 of the CrPC, a P.T. Warrant is issued by the
jurisdictional Magistrate, then the accused has to be produced before
such Magistrate on the date and time mentioned in the warrant, subject
to Sections 268 and 269 respectively of the CrPC. Upon production
before the jurisdictional Magistrate, the accused can be remanded to
police or judicial custody or be enlarged on bail, if applied for and
allowed. The only reason why we have delineated the procedure
followed in cases where a person already in custody is required to be
arrested in relation to a different offence is to negate the reasoning of
the Rajasthan, Delhi and Allahabad High Courts that once in custody,
it is not possible to re-arrest a person in relation to a different offence.
When a person in custody is confronted with a P.T. Warrant obtained
in relation to a different offence, such a person has no choice but to
submit to the custody of the police officer who has obtained the P.T.
Warrant. Thus, in such a scenario, although there is no confinement to
custody by touch, yet there is submission to the custody by the accused
based on the action of the police officer in showing the P.T. Warrant to
Criminal Appeal No. 2501/2024 Page 59 of 73
the accused. Thereafter, on production of the accused before the
jurisdictional Magistrate, like in the case of arrest of a free person who
is not in custody, the accused can either be remanded to police or
judicial custody, or he may be enlarged on bail and sent back to the
custody in the first offence. A number of decisions have held that
although Section 267 of the CrPC cannot be invoked to enable
production of the accused before the investigating agency, yet it can
undoubtedly be invoked to require production of the accused before the
jurisdictional Magistrate, who can thereafter remand him to the custody
of the investigating agency. Such an interpretation of the provision
would give true effect to the words “other proceedings” as they appear
in the text of Section 267 of the CrPC, which cannot be construed to
exclude proceedings at the stage of investigation. [See: C. Natesan v.
State of Tamil Nadu and Others, 1998 SCC OnLine Mad 931; Ranjeet
Singh v. State of Uttar Pradesh, 1995 Cri LJ 3505; State of
Maharashtra v. Yadav Kohachade, 2000 Cri LJ 959]
53. Thus, contrary to the view taken by the Rajasthan, Allahabad and Delhi
High Courts, a person, while in custody in relation to an offence, can
be arrested in relation to a different offence, either after getting released
from custody in the first offence, or even while remaining in custody in
Criminal Appeal No. 2501/2024 Page 60 of 73
the first offence. In such circumstances, it follows that a person, while
in custody in relation to an offence, can have “reason to believe” that
he may be arrested in relation to a different cognizable offence. We find
no restriction in the text of Section 438 or the scheme of the CrPC
precluding a person from seeking anticipatory bail in relation to an
offence while being in custody in relation to another offence. In the
absence of any such restriction, we find no valid reason to read any
prohibition in the text of Section 438 of the CrPC, to preclude a person
in custody from seeking anticipatory bail in relation to different
offences.
54. The option of applying for anticipatory bail in relation to an offence,
while being in custody in relation to a different offence, will only be
available to the accused till he is arrested by the police officer on the
strength of the P.T. Warrant obtained by him from the court concerned.
We must clarify that mere formal arrest (on-paper arrest) would not
extinguish the right of the accused to apply for anticipatory bail. We
say so because a formal arrest would not result in the submission of the
accused, who is already in custody, to the custody of the police officer
effecting a formal arrest in the subsequent case. However, if after
effecting a formal arrest, the police officer on the strength of the same
Criminal Appeal No. 2501/2024 Page 61 of 73
procures a P.T. Warrant from the jurisdictional Magistrate, the accused
would have no other choice but to submit to that compulsion and the
right of the accused to apply for anticipatory bail would thereafter get
extinguished.
55. If an accused is granted anticipatory bail in relation to an offence, while
being in custody in a different offence, then it shall no longer be open
to the police officer in the first case to apply under Section 267 of the
CrPC for the production of the accused before the jurisdictional
Magistrate for the purpose of remanding him to police or judicial
custody. However, it shall be open to the jurisdictional Magistrate to
require the production of accused under Section 267(1) for any other
purpose mentioned under the said section except for the purpose of
remanding him to police or judicial custody. [See: Tusharbhai
Rajnikantbhai Shah v. State of Gujarat, reported in 2024 SCC
OnLine SC 1897]
56. We would also like to observe that contrary to the submission of the
appellant that grant of anticipatory bail to the accused would prevent
the investigating authorities from conducting investigation and
discoveries, etc., it is always open to the concerned investigating officer
to apply before the Magistrate in whose custody the accused is in
Criminal Appeal No. 2501/2024 Page 62 of 73
relation to a different offence, seeking permission of such Magistrate to
interrogate the accused in relation to the particular offence which he is
investigating.
57. It was also submitted by the appellant that as the object of Section 438
of the CrPC was to prevent an accused from the humiliation of arrest,
the protective cover of the provision would not include within its ambit
a person who is already in custody. In other words, a person once
arrested in relation to an offence, cannot be said to suffer further
humiliation for any subsequent arrest which may take place, and thus,
the relief of anticipatory bail should not be made available to a person
who is already in custody.
58. We are unable to accept the aforesaid contention of the appellant. Each
arrest a person faces compounds their humiliation and ignominy. We
say so because each subsequent arrest underscores a continued or
escalating involvement in legal troubles that can erode the dignity of
the person and their public standing. The initial arrest itself often brings
a wave of social stigma and personal distress, as the individual struggles
with the implications of their legal predicament. When a subsequent
arrest occurs, it intensifies this emotional and social burden, amplifying
the perception of their criminality and reinforcing negative judgments
Criminal Appeal No. 2501/2024 Page 63 of 73
from society. Subsequent arrest in relation to different offences, while
the individual is in custody in a particular offence, further alienates the
individual from their community and adversely affects their personal
integrity. For this reason, it is incorrect to assume that subsequent
arrests diminish the level of humiliation. On the contrary, each
additional arrest exacerbates the person’s shame making the cumulative
impact of such legal entanglements increasingly devastating.
iii. Illustrative Examples
59. The discrimination that would be caused if the submissions
canvassed on behalf of the appellant were to be accepted can be
understood with the aid of the following illustrations:
Illustration A
(1) ‘A’ is in custody for a case under Section 420 of the IPC, and is
enlarged on bail on a particular date. On the same day, ‘A’s’ wife
registers a case under Section 498A IPC against him. Here, if the
appellant’s argument is accepted, ‘A’ would be able to apply for
anticipatory bail.
(2) ‘B’ is in custody under Section 420 of the IPC, and he has applied
for bail. However, the order releasing him on bail is yet to be passed.
Criminal Appeal No. 2501/2024 Page 64 of 73
While so, ‘B’s’ wife files a case under Section 498A of the IPC
against him. Here, if the appellant’s argument is accepted. ‘B’ would
not be able to apply for anticipatory bail while in custody for a case
under Section 420. He can apply for anticipatory bail in relation to
the case under Section 498A only if he is not arrested immediately
after his release in the case under Section 420. If he is arrested
immediately in the case under Section 498A after being released in
the case under Section 420, then the only remedy left for him would
be to seek regular bail.
If the interpretation sought to be put forward by the appellant is
accepted, two persons who are accused of similar offences are
entitled to different sets of rights. While one is permitted to avail the
right under Section 438 of the CrPC, the other is deprived of it,
merely on the basis of the point in time when the FIR gets lodged.
Illustration B
(1) ‘X’ is in custody for an offence under Section 302 of the IPC
punishable by life imprisonment or death, and subsequently an FIR
is registered against him for an offence under Section 376 of the IPC
which is punishable with imprisonment which may extend for life.
Here, if the appellant’s argument is accepted, then ‘X’ would not be
Criminal Appeal No. 2501/2024 Page 65 of 73
able to apply for anticipatory bail in the subsequent case, since he is
in custody for the earlier case under Section 302 of the IPC.
(2) ‘Y’ is in custody for an offence under Section 384 of the IPC
[extortion – punishable with imprisonment for 3 years], and while in
custody for this offence, an FIR is registered against him for an
offence under Section 406 of the IPC [criminal breach of trust –
punishable with imprisonment for 3 years]. In this example as well,
if the argument of the appellant is accepted, ‘Y’ would not be able to
apply for anticipatory bail, even though the offence is punishable
with imprisonment for 3 years.
‘Y’, therefore, would be placed at par with a person who has
committed a serious crime and would ordinarily not be granted
anticipatory bail. However, by prohibiting ‘Y’ from even applying
for anticipatory bail for an offence punishable by imprisonment for
a maximum of 3 years [i.e. Section 406 of the IPC], ‘Y’ is placed in
the same class as ‘X’.
E. CONCLUSION
60. Our examination of the matter has led us to the following conclusions:
i. 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. This is evident from para 39 of
Gurbaksh Singh Sibbia (supra).
ii. 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 Act, 1989, etc.
iii. 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.
iv. The investigating agency, if it 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. However, if an order
granting anticipatory bail in relation to the subsequent offence is
obtained by the accused, it shall no longer be open to the
investigating agency to seek remand of the accused in relation to
the subsequent offence. Similarly, if an order of police remand is
passed before the accused is able to obtain anticipatory bail, it
would thereafter not be open to the accused to seek anticipatory
bail and the only option available to him would be to seek regular
bail.
v. We are at one with Mr. Dave 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.
He is right in his submission that such procedure should also pass
the test of fairness, reasonableness and manifest non-arbitrariness
on the anvil of Article 14 of the Constitution of India.
vi. Under Section 438 of the CrPC, the pre-condition for a person to
apply for pre-arrest bail is a “reason to believe that he may be
arrested on an accusation of having committed a non-bailable
offence”. Therefore, the only pre-condition for exercising the said
right is the apprehension of the accused that he is likely to be
arrested. In view of the discussion in the preceding paragraphs,
custody in one case does not have the effect of taking away the
apprehension of arrest in a different case.
vii. If the interpretation, as sought to be put forward by Mr. Luthra is
to be accepted, the same would not only defeat the right of a person
to apply for pre-arrest bail under Section 438 of the CrPC but may
also lead to absurd situations in its practical application.
61. Before we part with the matter, we would like to underscore the
importance of the rights conferred under the procedural laws as noted
by a Constitution Bench of this Court in A.R. Antulay v. R. S. Nayak
reported in (1988) 2 SCC 602. It was observed therein that no man
can be denied of his rights under the Constitution and the laws. He
has a right to be dealt with in accordance with the law, and not in
derogation of it. This Court held that a denial of equal protection of
laws, by being singled out for a special procedure not provided under
the law, caused denial of rights under Article 14 of the Constitution
of India. A few relevant observations are extracted hereinbelow:
“41. In the aforesaid view of the matter and the
principle reiterated, it is manifest that the appellant has
not been ordered to be tried by a procedure mandated
by law, but by a procedure which was violative of Article
21 of the Constitution. That is violative of Articles 14
and 19 of the Constitution also, as is evident from the
observations of the Seven Judges Bench judgment
in Anwar Ali Sarkar case [(1952) 1 SCC 1 : AIR 1952
SC 75 : 1952 SCR 284 : 1952 Cri LJ 510] where this
Court found that even for a criminal who was alleged to
have committed an offence, a special trial would be per
se illegal because it will deprive the accused of his
substantial and valuable privileges of defence which,
others similarly charged, were able to claim.
xxx xxx xxx
81. […] We proclaim and pronounce that no man is
above the law, but at the same time reiterate and declare
that no man can be denied his rights under the
Constitution and the laws. He has a right to be dealt with
in accordance with the law and not in derogation of it.
This Court, in its anxiety to facilitate the parties to have
a speedy trial gave directions on 16-2-1984 as
mentioned hereinbefore without conscious awareness of
the exclusive jurisdiction of the Special Courts under the
1952 Act and that being the only procedure established
by law, there can be no deviation from the terms of
Article 21 of the Constitution of India. That is the only
procedure under which it should have been guided. By
reason of giving the directions on 16-2-1984 this Court
had also unintentionally caused the appellant the denial
of rights under Article 14 of the Constitution by denying
him the equal protection of law by being singled out for
a special procedure not provided for by law. […]”
(Emphasis supplied)
62. Similarly, a Constitution Bench of this Court in State of West Bengal
v. Anwar Ali Sarkar reported in (1952) 1 SCC 1, held that
procedural law confers very valuable rights on a person, and their
protection must be as much the object of a Court’s solicitude as those
conferred under the substantive law. Few pertinent observations are
extracted hereinbelow:
“27. The argument that changes in procedural law are
not material and cannot be said to deny equality before
the law or the equal protection of the laws so long as the
substantive law remains unchanged or that only the
fundamental rights referred to in Articles 20 to 22
should be safeguarded is, on the face of it, unsound. The
right to equality postulated by Article 14 is as much a
fundamental right as any other fundamental right dealt
with in Part III of the Constitution. Procedural law may
and does confer very valuable rights on a person, and
their protection must be as much the object of a court's
solicitude as those conferred under substantive law.”
(Emphasis supplied)
63. It was also sought to be argued by Mr. Luthra that the issue at hand
has already been dealt with and decided by a three-Judge Bench of
this Court in Narinderjit Singh Sahni (supra). It was contended that
the dictum laid therein is that an anticipatory bail application filed by
an accused in a different case, while he is in custody in one case,
would not be maintainable. However, we are unable to agree with
such submission of the appellant. In the said case, the Petitioners
therein, who were arrayed as accused in multiple FIRs registered at
various police stations across the country, had invoked the
jurisdiction of this Court under Article 32 praying for an order for
bail in the nature as prescribed under Section 438 of the CrPC. The
crux of the grievance of the Petitioners was that although they had
secured an order of bail in one case yet they were being detained in
prison on the strength of a production warrant in another matter.
This, according to the petitioners, was violative of Article 21 as they
were deprived of their liberty despite having been granted bail in one
of the cases.
64. The aforesaid contention of the Petitioners in the said case was
ultimately rejected by this Court on the ground that even if the
Petitioners could be said to have been deprived of their liberty, such
deprivation was in accordance with the due process of law. Having
observed thus, this Court dismissed the Writ Petition filed by the
Petitioners as no infraction of Article 21 was established.
65. Evidently, this Court in the aforesaid case had no occasion to go into
the question of maintainability of an application for grant of
anticipatory bail by an accused who is already in judicial custody in
relation to some offence. On the contrary, this Court in Narinderjit
Singh Sahni (supra) examined the issue whether a blanket order in
the nature of anticipatory bail could be passed by this Court in
exercise of its Writ Jurisdiction, wherein the Petitioner was arrayed
as an accused in multiple criminal proceedings.
66. On the other hand, in the present case, we have decided the issue of
maintainability of an anticipatory bail application filed at the
instance of an accused who is already in judicial custody in a
different offence and have reached the conclusion that such an
application is maintainable under the scheme of the CrPC. However,
it is clarified that each of such applications will have to be decided
by the competent courts on their own merits.
67. In view of the aforesaid discussion, the present appeal must fail and
the same is thereby dismissed.
68. The High Court of Judicature at Bombay shall now proceed to decide
the anticipatory bail application filed by the respondent accused on
its own merits.
69. Pending application(s), if any, shall stand disposed of.
70. The Registry shall forward one copy each of this judgment to all the
High Courts across the country.
…………………………………….CJI
(Dr. Dhananjaya Y. Chandrachud)
………………………………………J.
(J.B. Pardiwala)
………………………………………J.
(Manoj Misra)
New Delhi;
9 th September, 2024.
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