Holding

An anticipatory bail application under Section 438 of the CrPC is maintainable even if the accused is already in judicial custody for a different offence, provided he has not been arrested for the offence for which bail is sought.

Summary

The respondent, already in judicial custody for ECIR No.10 of 2021, feared arrest in a separate case (CR No.806 of 2019) and applied for anticipatory bail under Section 438 of the CrPC. The complainant objected, arguing that a person already in custody cannot seek anticipatory bail for another offence. The Bombay High Court allowed the application, prompting an appeal to the Supreme Court. The Court examined the statutory scheme, the definition of arrest, and the possibility of re‑arrest while in custody, concluding that no provision bars such an application unless the accused is already arrested for the offence in question or a specific statutory exclusion applies. It held that anticipatory bail is maintainable for a different offence even when the applicant is in custody for another case, subject to the usual conditions and the limitation in Section 438(4). Consequently, the appeal was dismissed and the High Court was directed to decide the bail application on its merits.

Issues considered

Whether an anticipatory bail application under Section 438 of the CrPC is maintainable when the applicant is already in judicial custody for a different offence.
Whether the pre‑condition of a "reason to believe" of arrest can exist while the applicant is already in custody.
Whether the statutory framework, including Section 46, Section 267, and Section 438(4), imposes any restriction on such an application.
Whether granting anticipatory bail in such circumstances would impede police investigation or the power to seek remand.

Legislation cited

Code of Criminal Procedure, 1973s. 167, s. 267, s. 437, s. 438, s. 438(4), s. 439, s. 46
Constitution of Indias. 14, s. 21
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989s. 18, s. 18A(2)

Subjects

Section 438 of the Code of Criminal Procedure, 1973Anticipatory bailPolice custodyJudicial custodyAccused already in judicial custodyAnticipatory bail in a different casereason to believeArrestSubsequent arrestCustodyRegular bailArrest apprehendedApprehension of arrestApprehension of arrest in a different case/offenceLikely to be arrestedFirst offenceCustody in the first offenceDifferent offenceSubsequent offenceRemand of the accusedPrevious offencePre‑condition for pre‑arrest bailArrest in relation to some other non‑bailable offenceActual touch or confinementFormal arrestPossibility of arrest of the applicantPrisoner Transit WarrantJurisdictional Magistrate

Judgment

[2024] 9 S.C.R. 257 : 2024 INSC 669

Dhanraj Aswani
v.
Amar S. Mulchandani & Anr.
(Criminal Appeal No. 2501 of 2024)
09 September 2024
[Dr. Dhananjaya Y. Chandrachud, CJI,
J.B. Pardiwala* and Manoj Misra, JJ.]

Issue for Consideration
Whether an application for anticipatory bail under Section 438
of the Code of Criminal Procedure, 1973 is maintainable at the
instance of an accused while he is already in judicial custody in
connection with his involvement in a different case.

Headnotes†
Code of Criminal Procedure, 1973 – s.438 – Accused already in
judicial custody in connection with one case, if can apply for
anticipatory bail in a different case – Maintainability of such
anticipatory bail applications – Divergent opinions expressed
by different High Courts:
Held: An anticipatory bail application filed at the instance of
an accused already in judicial custody in a different offence is
maintainable – 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 u/s.437 or s.439, as the case
may be – 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 s.438 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 u/s.438 is the one prescribed u/s.438(4) and in
other statutes like the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989, etc. – While a person already

* Author
258 [2024] 9 S.C.R.

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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 – Thus, all rights conferred by
the statute on the accused as well as the investigating agency in
relation to the subsequent offence are independently protected –
For the purpose of interrogation/investigation in an offence, the
investigating agency 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 – Under s.438, 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 – Custody in one case does not have the effect of
taking away the apprehension of arrest in a different case – Right
of an accused to protect his personal liberty u/Article 21 of the
Constitution of India with the aid of the provision of anticipatory
bail u/s.438 cannot be defeated or thwarted without a valid
procedure established by law – Such procedure should also pass
the test of fairness, reasonableness and manifest non-arbitrariness
u/Article 14. [Paras 60, 66]
Code of Criminal Procedure, 1973 – s.46 – ‘Arrest how
made’– “reason to believe” – Prisoner Transit Warrant (P.T.
Warrant) u/s.267 – “other proceedings” – 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 – High Court of Rajasthan in Sunil Kallani
reasoned that once a person is taken in custody in relation to
an offence, thereafter it is not possible 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:
Held: Such view not agreed with – 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 – The
[2024] 9 S.C.R. 259

Dhanraj Aswani v. Amar S. Mulchandani & Anr.

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 – Ways
by which a person who is already in custody may be arrested,
enumerated – 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 – Though a plain reading of s.46
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 – 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 is in conformity with the modality of the
arrest contemplated u/s.46 – Procedure followed in cases where
a person already in custody is required to be arrested in relation
to a different offence, explained – 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,
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 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 – s.267 can 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 s.267,
which cannot be construed to exclude proceedings at the stage
of investigation – 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.
[Paras 38, 40-42, 46, 49, 51-53]
260 [2024] 9 S.C.R.

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Arrest – Subsequent arrest – Effect on accused – Plea of the
appellant that as the object of s.438, CrPC was to prevent an
accused from the humiliation of arrest, its protection would not
include within its ambit a person who is already in custody:
Held: Rejected – Each arrest a person faces compounds their
humiliation and ignominy – Each subsequent arrest underscores
a continued or escalating involvement in legal troubles that can
erode the dignity of the person and their public standing – When
a subsequent arrest occurs, it intensifies the emotional and social
burden, amplifying the perception of their criminality and reinforcing
negative judgments 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 – Each additional arrest
exacerbates the person’s shame making the cumulative impact
of such legal entanglements increasingly devastating. [Para 58]
Criminal Law – Procedural laws – Rights conferred under –
Importance – Discussed.
Code of Criminal Procedure, 1973 – s.438 – Anticipatory bail –
Concept – Evolution – Discussed.

Case Law Cited
Narinderjit Singh Sahni v. Union of India [2001] Supp. 4 SCR
114 : (2002) 2 SCC 210 – distinguished.
Sunil Kallani v. State of Rajasthan (2021) SCC OnLine Raj 1654;
Rajesh Kumar Sharma v. CBI (2022) SCC OnLine All 832; Bashir
Hasan Siddiqui v. State (GNCTD) (2023) SCC OnLine Del 7544 –
disapproved.
Kartar Singh v. State of Punjab [1994] 2 SCR 375 : (1994) 3
SCC 569; Gurbaksh Singh Sibbia v. State of Punjab [1980] 3
SCR 383 : (1980) 2 SCC 565; Sushila Aggarwal v. State (NCT of
Delhi) [2020] 2 SCR 1 : (2020) 5 SCC 1; Prathvi Raj Chauhan v.
Union of India [2020] 2 SCR 727 : (2020) 4 SCC 727; Siddharam
Satlingappa Mhetre v. State of Maharashtra and Others [2010]
15 SCR 201 : (2011) 1 SCC 694; Central Bureau of Investigation
Special Investigation Cell-I New Delhi v. Anupam J. Kulkarni [1992]
3 SCR 158 : (1992) 3 SCC 141; Tejesh Suman v. State of Rajasthan
(2023) SCC OnLine SC 76; State of U.P. v. Deoman Upadhyaya
[1961] 1 SCR 14 : AIR (1960) SC 1125; Tusharbhai Rajnikantbhai
Shah v. State of Gujarat [2024] 8 SCR 235 : (2024) SCC OnLine
[2024] 9 S.C.R. 261

Dhanraj Aswani v. Amar S. Mulchandani & Anr.

SC 1897; A.R. Antulay v. R. S. Nayak [1988] Suppl. 1 SCR 1 :
(1988) 2 SCC 602; State of West Bengal v. Anwar Ali Sarkar [1952]
1 SCR 284 : (1952) 1 SCC 1 – referred to.
Alnesh Akil Somji v. State of Maharashtra (2021) SCC OnLine
Bom 5276; Sanjay Kumar Sarangi v. State of Odisha (2024) SCC
OnLine Ori 1334; Amir Chand v. The Crown (1949) SCC OnLine
Punj 20; S. Harsimran Singh v. State of Punjab (1984) Cri LJ 253;
State v. K.N. Nehru (2011) SCC OnLine Mad 1984; Roshan Beevi
and others v. Joint Secretary to Government of Tamil Nadu and
others (1983) SCC OnLine Mad 163; 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 – referred to.
Alderson v. Booth (1969) 2 All ER 271 – referred to.

Books and Periodicals Cited
Law Commission’s 48th Report (1972); Law Commission’s 41st
Report; Black’s Law Dictionary (5th Edition, 1979) – referred to.

List of Acts
Code of Criminal Procedure, 1973; Constitution of India.

List of Keywords
Section 438 of the Code of Criminal Procedure, 1973; Anticipatory
bail; Police custody; Judicial custody; Accused already in
judicial custody; Anticipatory bail in a different case; “reason to
believe”; Arrest; Subsequent arrest; Custody; Regular bail; Arrest
apprehended; Apprehension of arrest; Apprehension of arrest in a
different case/offence; Likely to be arrested; First offence; Custody
in the first offence; Different offence; Subsequent offence; Remand
of the accused; Previous offence; Pre-condition for pre-arrest bail;
Arrest in relation to some other non-bailable offence; Actual touch
or confinement; Formal arrest; Possibility of arrest of the person
in custody; Prisoner Transit Warrant; Jurisdictional Magistrate.

Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 2501
of 2024
From the Judgment and Order dated 31.10.2023 of the High Court
of Judicature at Bombay in ABA No. 2801 of 2023
262 [2024] 9 S.C.R.

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Appearances for Parties
Sidharth Luthra, Sr. Adv., Prashant S. Kenjale, Amol Nirmalkumar
Suryawanshi, Ms. Srishty Pandey, Ashutosh Chaturvedi, Ms. Gayatri
Virmani, Shubham Gavande, Advs. for the Appellant.
Siddharth Dave, Sr. Adv., Shantanu Phanse, SS Bedekar, Prastut
Dalvi, Ms. Vidhi Thaker, Siddhant Sharma, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
J.B. Pardiwala, J.
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*

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:

* Ed. Note: Pagination as per the original Judgment.
[2024] 9 S.C.R. 263

Dhanraj Aswani v. Amar S. Mulchandani & Anr.

“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 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
4. Mr. Sidharth Luthra, the learned Senior counsel appearing for the
appellant canvassed the following submissions:
264 [2024] 9 S.C.R.

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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 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
[2024] 9 S.C.R. 265

Dhanraj Aswani v. Amar S. Mulchandani & Anr.

surrender and pray for regular bail on the principle of “deemed
custody” both in Magistrate as well as Sessions triable cases.
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
266 [2024] 9 S.C.R.

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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.
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 non-arbitrariness 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
[2024] 9 S.C.R. 267

Dhanraj Aswani v. Amar S. Mulchandani & Anr.

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.
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 arrested as he stood already
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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 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
[2024] 9 S.C.R. 269

Dhanraj Aswani v. Amar S. Mulchandani & Anr.

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 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 under-Section 438
Cr.P.C. would stand frustrated. The provisions of grant of
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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 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:
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“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 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
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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
[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
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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 obscurity and
ambiguity, there is no place for supposition.”
(Emphasis supplied)
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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 charge-sheet 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.
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
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connection 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.
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
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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.
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
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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 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 there-from. 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
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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:
(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
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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 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. 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
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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
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),
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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)
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.
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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)
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
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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
sub-section (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 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 sub-
section (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,
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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).
(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:
“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.
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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, 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
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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
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
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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
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
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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 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
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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 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 Sub-section(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
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free enough to be able to take these possibilities in its
stride and to meet these challenges.
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 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
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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.
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.
34. However, since Siddharam Satlingappa Mhetre (supra) was
delivered by a coram of two Judges, the matter again reached the
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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-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
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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)
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.
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?
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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. 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.
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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
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
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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 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
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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 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 re-arrest 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
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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
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
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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
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 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.
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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.
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 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.”
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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 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
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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 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 notice, that he was under compulsion
and thereafter he submitted to that compulsion.”
(Emphasis supplied)
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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 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
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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
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 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
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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.
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 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
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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 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. 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
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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 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
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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.
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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
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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)
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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.
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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.

Result of the case: Appeal dismissed.

†
Headnotes prepared by: Divya Pandey