Question of law: Whether A.B petition is maintainable if the accused is already in judicial custody in another case
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?”
Facts
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 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.
A. Submissions on behalf of the appellant
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.
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 in one case, even though he may be in custody in connection with some other case.
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.
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 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.
After considering the various High Court judgments the Hon’ble Supreme Court has analysed the proposition and held as follows:
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. 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):
“…..”
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:
“……………….”
Objects and reasons for introducing section 438 Cr.P.C
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].
Anticipatory bail is not a constitutional or fundamental right
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 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:
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 fundamental right to seek anticipatory bail. Section 438 of the CrPC is just a statutory right.
Principles of law regarding Grant of Anticipatory Bail as per Gurbaksh Singh Sibbia’s case
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.
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.
Siddharam Satlingappa Mhetre v. State of Maharashtra and others [(2011) 1 SCC 694] overruled the decisions intervening and curtailing the scope of Gurbaksh Singh Sibbia’s case
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.
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 (Sushila Aggarwal v. State (NCT of Delhi), [2020] 2 SCR 1, (2020) 5 SCC 1) 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-to case 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.
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:
“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)…
Courts should not read any blanket restrictions under section 438 Cr.P.C
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.
There is no text precluding a person from seeking Anticipatory bail in relation to an offence while being in custody in another offence
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 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.
Accused who is in custody in different case cannot obtain Anticipatory Bail if the accused is formally arrested by the police under P.T warrant in another case
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 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.
If the accused obtained Anticipatory Bail then the police officer cannot apply for section 267 Cr.P.C
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].
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.
Appeal dismissed
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.
Party
Dhanraj Aswani … Appellant versus Amar S. Mulchandani & Anr. … Respondents – Criminal Appeal No. 2501 of 2024 (arising out of SLP (Crl.) No. 6942 of 2024) – 2024 INSC 669 – 9th September, 2024 – 3 Judge Bench.
