Summary
Resolving a conflict among High Courts, the Supreme Court held that an accused in custody in one case may apply for anticipatory bail under Section 438 CrPC in a different case, since he can still be arrested in that other case (on release or, while in custody, through a production warrant under Section 267 CrPC) and Section 438 contains no such bar; the right lasts until he is arrested in the second case under a P.T. warrant or remanded in it, and each application is decided on its merits.
Issues
- Whether an application for anticipatory bail under Section 438 CrPC is maintainable at the instance of an accused already in judicial custody in connection with a different case.
- Whether a person in custody for one offence can have a 'reason to believe' that he may be arrested for a different non-bailable offence.
- How a person already in custody can be arrested in a different case, and when the right to seek anticipatory bail in that case ends.
Provisions considered
- Section 438, Code of Criminal Procedure, 1973The Court read the section, whose only pre-condition is a reason to believe that the applicant may be arrested for a non-bailable offence and whose only statutory exclusion is sub-section (4), as containing no express or implied bar on an accused in custody in another case seeking anticipatory bail; no such restriction can be read into it. (¶¶ 24, 36, 53, 60)
- Section 438(4), Code of Criminal Procedure, 1973Following Sushila Aggarwal, the Court treated sub-section (4) (offences under Sections 376(3), 376AB, 376DA and 376DB IPC) as showing that where Parliament wanted to restrict the power it did so expressly; apart from it and bars in other statutes such as the SC/ST (Prevention of Atrocities) Act, there is no restriction. (¶¶ 35, 36, 60)
- Section 46(1), Code of Criminal Procedure, 1973The Court held that arrest under this section does not require actual touch; submission to custody by word or action suffices, so a person in custody who is confronted with a P.T. warrant in another case submits to that custody and is arrested. (¶¶ 45, 46, 49, 51, 52)
- Section 267, Code of Criminal Procedure, 1973The Court explained that a person in custody can be produced under a P.T. warrant before the magistrate having jurisdiction over another offence, who may remand him or grant bail; the words 'other proceedings' include investigation. Once anticipatory bail is granted in the other case, production under Section 267 for remand in that case is no longer open. (¶¶ 41, 44, 52, 54, 55)
- Section 167, Code of Criminal Procedure, 1973Relying on CBI v. Anupam J. Kulkarni, the Court noted that a person in judicial custody in one case may be formally arrested in a different case and remanded to custody in that case by the magistrate. (¶¶ 40, 41)
- Sections 437 and 439, Code of Criminal Procedure, 1973Once the accused is arrested in relation to an offence, Section 438 no longer applies to it and his remedy is regular bail under these sections. (¶¶ 32, 60)
- Articles 14 and 21, Constitution of IndiaThe Court accepted that the right to protect personal liberty through Section 438 cannot be defeated without a valid procedure established by law that is fair, reasonable and non-arbitrary, and that procedural rights deserve the same protection as substantive rights. (¶¶ 60, 61, 62)
Held
- An accused may seek anticipatory bail for an offence so long as he has not been arrested for that offence; once arrested, his remedy is regular bail under Section 437 or 439 CrPC. (¶¶ 32, 60)
- Neither the CrPC nor any other statute, expressly or impliedly, bars the Court of Session or High Court from entertaining an anticipatory bail application for one offence while the applicant is in custody for another; the only restrictions are Section 438(4) and bars in other statutes such as the SC/ST (Prevention of Atrocities) Act, and reading in a further restriction would be judicial legislation. (¶¶ 35, 36, 53, 60)
- A person in custody can be arrested in a different case either immediately on release or, while still in custody, by formal arrest followed by a P.T. warrant under Section 267 CrPC and remand; he can therefore have a reason to believe that he may be arrested in the other case. The contrary view of the Rajasthan, Allahabad and Delhi High Courts was rejected and the view of the Bombay and Orissa High Courts upheld. (¶¶ 19, 38, 39, 40, 41, 42, 52, 53)
- Arrest under Section 46 CrPC does not require physical touch; submission to custody by word or action suffices, so a person in custody who is shown a P.T. warrant in another case submits to the custody of the officer who obtained it. (¶¶ 46, 49, 51, 52)
- A mere formal (on-paper) arrest in the subsequent case does not extinguish the right to apply for anticipatory bail; the right ends when the accused is arrested on the strength of a P.T. warrant, or when a remand order in the subsequent case is passed before anticipatory bail is obtained. If anticipatory bail is granted first, the investigating agency can no longer seek his remand in that case, though it may seek the magistrate's permission to interrogate him in custody. (¶¶ 54, 55, 56, 60)
- The argument that a person already arrested suffers no further humiliation was rejected; each further arrest adds to stigma and humiliation. Barring such applications would also create arbitrary distinctions between similarly placed accused depending on when the FIR is lodged. (¶¶ 57, 58, 59, 60)
- Narinderjit Singh Sahni v. Union of India did not decide this question; it concerned whether a blanket order in the nature of anticipatory bail could be passed under Article 32 for an accused in multiple cases. (¶¶ 63, 64, 65)
- Such applications are maintainable but must be decided by the competent courts on their own merits. (¶ 66)
Result
Appeal dismissed; the Bombay High Court to decide the respondent-accused's anticipatory bail application on its merits; Registry to send a copy of the judgment to all High Courts.