Why has the Supreme Court approved the view of the Bombay and Odisha high courts (as against the Allahabad, Delhi and Rajasthan high courts) that anticipatory bail is available to a person under arrest in a different matter?
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ON Monday, the Supreme Court ruled that an application for anticipatory bail is maintainable at the instance of an accused while he is already in judicial custody in connection with his involvement in a different case.
A Bench comprising the Chief Justice of India (CJI) Dr D.Y. Chandrachud and Justices J.B. Pardiwala and Manoj Misra handed down the ruling.
The Bench overruled the contrary view taken by the Allahabad, Delhi and Rajasthan high courts. It approved the view taken by the Bombay and Odisha high courts which have held that such an anticipatory bail is maintainable.
The Bench opined that when a person already in custody in connection with a particular offence apprehends arrest in a different offence, 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," the Bench ruled.
The Bench also held that 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.
“The Bench overruled the contrary view taken by the Allahabad, Delhi and Rajasthan high courts.
Section 438 of the Code of Criminal Procedure (CrPC) deals with anticipatory bail. It reads as:
"Section 438 (1): Discretion for grant of bail to person apprehending arrest: 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 cognisable 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.
Section 482 of the new Bharatiya Nagarik Suraksha Sanhita, 2023 is very similarly worded.
The Bench was hearing an appeal against an Order of the Bombay High Court passed on October 31, 2023.
The Bombay High Court had rejected the objection raised by the complainant who was the petitioner before the Supreme Court, with regard to the maintainability of the anticipatory bail filed by the accused in connection with a first information report (FIR) at Pimpri Police Station.
The FIR was for offences punishable under Sections 406 (punishment for criminal breach of trust), 409 (criminal breach of trust by public servant, or by banker, merchant or agent), 420 (cheating and dishonestly inducing delivery of property), 465 (punishment for forgery), 467 (forgery of valuable security, will, etc.), 468 (forgery for purpose of cheating) and 471 (using as genuine a forged document) respectively read with Section 34 (acts done by several persons in furtherance of common intention) of the Indian Penal Code (IPC).
“The Bench was hearing an appeal against an Order of the Bombay High Court passed on October 31, 2023.
The Bombay High Court took the view that although the accused was in custody in connection with an offence under the Prevention of Money Laundering (PMLA), 2002, he would be entitled to pray for anticipatory bail in connection with a different case.
The original complainant was aggrieved by this Order of the Bombay High Court and knocked on the doors of the Supreme Court challenging it.
Senior advocate Siddharth Dave, for the accused, primarily argued that under Section 438 of the CrPC, the precondition 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.
He also submitted that the right of an accused to protect his personal liberty is within the contours of Article 21 of the Constitution of India. The benefit of Section 438 of the CrPC cannot be eliminated without a procedure established by law and the said procedure must be fair and reasonable, he stated.
On the other hand, senior advocate Siddharth Luthra, for the original complainant, argued that the pre-condition to invoke Section 438 of the 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".
He also argued that the salutary provision of Section 438 of the CrPC was enshrined with a view to ensure 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 438 of the CrPC, then for a person who is already under arrest there is no question of any humiliation being caused.
Luthra also relied upon a decision of the Supreme Court in Narinderjit Singh Sahni versus Union of India, in which a three-judge Bench held that a person already in custody cannot have reasons to believe that he shall be arrested as he already stands arrested.
The Rajasthan High Court in Sunil Kallani versus State of Rajasthan held that an application for anticipatory bail would not be maintainable at the instance of a person who has already been arrested and is in police custody or judicial custody in relation to a different case.
The high court stated 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.
“Senior advocate Siddharth Dave, for the accused, argued that the only pre-condition for exercising the right of anticipatory bail is the apprehension of the accused that he may be arrested.
The high court also 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 the custody of the police authorities.
The Allahabad High Court in Rajesh Kumar Sharma versus CBI followed the view taken by the Rajasthan High Court. The Delhi High Court, relying upon the decisions of the Rajasthan High Court and the Allahabad High Court, took a similar view in Bashir Hasan Siddiqui versus State (GNCTD).
On the other hand, the Bombay High Court in Alnesh Akil Somji versus State of Maharashtra, 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 that he is already in custody in relation to a different offence.
The Bombay High Court High Court was of the view that the application 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.
The Odisha High Court in Sanjay Kumar Sarangi versus State of Odisha held 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.
In its 74-page long judgment, the Supreme Court Bench traced the history and concept of anticipatory bail. In the celebrated Gurbaksh Singh Sibbia versus State of Punjab, the Supreme Court had laid down a few principles about the grant of anticipatory bail, including that the applicant/accused must genuinely show the 'reason to believe' that he may be arrested for a non-bailable offence.
Also, the filing of the FIR is not a condition precedent. However, the imminence of a likely arrest founded on reasonable belief must be shown.
The Bench also took note of a decision in Siddharam Satlingappa Mhetre versus State of Maharashtra and Others, wherein it was held that no blanket restriction can be read into by the court in Section 438 of the CrPC, nor can inflexible guidelines in the exercise of discretion be insisted upon for it would amount to judicial legislation.
The Bench disapproved the reasoning offered by the Rajasthan High Court, which was followed subsequently by the Allahabad and the Delhi high courts. The Bench underscored what it called two fundamental fallacies in the reasoning offered by the Rajasthan High Court.
The Bench said, firstly, that the high court failed to consider the possibility of arrest of the person in custody in relation to a different offence immediately after he is set free from custody in the first offence.
“Senior advocate Siddharth Luthra, for the original complainant, argued that if the accused is already in custody, then he can have no reason to believe that he "may be arrested".
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.
Such a reasoning, the Bench said, if allowed to stand, would deprive the accused 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.
"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," the Bench ruled.
The second fallacy the Bench underscored was that the Rajasthan High Court had held that there could not be an arrest of an accused in relation to a different offence while he is already in custody in relation to some offence.
The Bench referred to a decision of the Supreme Court in Central Bureau of Investigation, Special Investigation Cell-I, New Delhi versus Anupam J. Kulkarni, in which it was held that even if an accused is in judicial custody in connection with the investigation of an earlier case, the investigating agency can formally arrest him in connection with his involvement in a different case and associate him with the investigation of that other case.
The Bench thus held that an accused could be arrested either when he is free or when he is in custody for some offence. Similarly, an arrest can be made by a police officer either without a warrant or with a warrant issued by a court.
Explaining what constitutes an 'arrest', the Bench referred to Section 46(1) of the CrPC which provides for how an arrest is made.
It reads: "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 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."
The Bench noted that a plain reading of Section 46(1) 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.
“The Bombay High Court High Court was of the view that the application 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.
On this basis, the Bench disapproved the reasoning of the Rajasthan High Court that there cannot be an arrest while a person is in judicial custody because it is not possible for the police officer to arrest him without actual touch or confinement while such a person is under custody. The Bench held 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," the Bench held.
The Bench also discussed the argument made by Luthra on the basis of a decision by Narinderjit Singh Sahni in which it was held that a person who is already in custody cannot have reasons to believe that he shall be arrested as he already stands arrested.
The Bench said in that case the petitioners were accused in multiple FIRs registered at various police stations across the country and had invoked the jurisdiction of the Supreme Court under Article 32, praying for an Order for bail in the nature of anticipatory bail. The grievance of the petitioners in that case 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. This contention was rejected by the court in Narinderjit Singh Sahni.
“"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," the Bench held.
The Bench noted that in Narinderjit Singh Sahni, the court had no occasion to go into the question of maintainability of an application for the grant of anticipatory bail by an accused who is already in judicial custody in relation to some offence.
The Bench noted that in Narinderjit Singh Sahni, the Bench had examined the issue of whether a blanket Order in the nature of anticipatory bail could be passed by the Supreme Court in the exercise of its writ jurisdiction, wherein the petitioners were arrayed as accused in multiple criminal proceedings.
On these facts, the Bench distinguished the decision in Narinderjit Singh Sahni from the present case and added that in the present case, the issue of maintainability of an anticipatory bail application has been decided on the basis of an application filed at the instance of an accused who is already in judicial custody in a different offence.
The Bench said that is why they had reached the conclusion that such an application is maintainable under the scheme of the CrPC.
Police and investigating agencies in many states have made it a practice of keeping some people in custody by using the practice of 'chain arrest', where a person is arrested for a different offence before his custody under one offence may end or on the day he is released. It remains to be seen how this decision will affect such cases.