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2024 (11) TMI 788 - SCH - Indian LawsGrant of Anticipatory bail - Whether an application for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 (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? - HELD THAT - 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. In KARTAR SINGH VERSUS STATE OF PUNJAB 1994 (3) TMI 379 - SUPREME COURT , 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 GURBAKSH SINGH SIBBIA VERSUS STATE OF PUNJAB 1980 (4) TMI 295 - SUPREME COURT , 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 offences for which he is arrested. This Court also cautioned against passing a blanket order for anticipatory bail. Thus, 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 - there are force in the submission of the respondent that if the accused is not allowed to obtain a pre-arrest bail in relation to a different offence, while being in custody in one offence, then he may get arrested by the police immediately upon his release in the first case, even before he gets the opportunity to approach the competent court and file an application for the grant of anticipatory bail in relation to the said particular offence. This practical shortcoming in the approach taken by the Rajasthan High Court is prone to exploitation by investigating agencies for the purpose of putting the personal liberty of the accused in peril. The 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. 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 - There is no express or implied restriction in the CrPC or in any other statute that prohibits the Court of Session or the High Court from entertaining and deciding an anticipatory bail application in relation to an offence, while the applicant is in custody in relation to a different offence. No restriction can be read into Section 438 of the CrPC to preclude an accused from applying for anticipatory bail in relation to an offence while he is in custody in a different offence, as that would be against the purport of the provision and the intent of the legislature. The only restriction on the power of the court to grant anticipatory bail under Section 438 of the CrPC is the one prescribed under sub-section (4) of Section 438 of the CrPC, and in other statutes like the Act, 1989, etc. The present appeal must fail and the same is thereby dismissed.
Issues Involved:
1. 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? Issue-wise Detailed Analysis: 1. Maintainability of Anticipatory Bail Application While in Custody: The primary issue before the court was whether an accused, already in judicial custody for one offence, can apply for anticipatory bail concerning a different offence. The court examined divergent views from various High Courts on this matter. The Rajasthan, Delhi, and Allahabad High Courts held that anticipatory bail is not maintainable for an accused already in custody for a different case. Conversely, the Bombay and Orissa High Courts opined that such an application is maintainable, provided the accused is not arrested in the subsequent case. The Supreme Court analyzed the evolution of anticipatory bail, emphasizing the protection of personal liberty. It underscored that anticipatory bail aims to prevent undue harassment and arrest of individuals who have not been proven guilty. The court reiterated that the statutory right under Section 438 CrPC should not be curtailed unless explicitly restricted by law, as seen in Section 438(4) CrPC for certain offences. The court noted that a person in custody for one offence could have a "reason to believe" that they might be arrested for another offence, especially if the investigating agency might arrest them immediately upon release. The court highlighted procedural mechanisms, such as formal arrest and Prisoner Transit Warrant (P.T. Warrant), allowing for the arrest of an accused already in custody for a different case. The court concluded that an application for anticipatory bail is maintainable even if the accused is in custody for another offence, provided they have not been formally arrested for the subsequent offence. The court emphasized that procedural law should not be interpreted to deny an accused their statutory rights or personal liberty without due process. 2. Procedural Aspects of Arrest and Custody: The court discussed the procedural nuances of arrest and custody, emphasizing that arrest involves either actual touch or submission to custody by words or action. It clarified that an accused in custody could be formally arrested for another offence, and a P.T. Warrant could be issued for their production before the jurisdictional magistrate. The court delineated the procedural steps for arresting an accused already in custody, emphasizing that formal arrest does not extinguish the right to apply for anticipatory bail. The court also addressed the misconception that an accused in custody cannot be re-arrested for a different offence, clarifying that procedural law permits such actions under specific circumstances. 3. Impact on Personal Liberty and Judicial Interpretation: The court underscored the importance of personal liberty and the right to seek anticipatory bail as fundamental rights protected under Articles 14 and 21 of the Constitution. It rejected the argument that subsequent arrests do not compound humiliation, emphasizing that each arrest intensifies the social stigma and personal distress faced by the accused. The court reiterated that procedural laws confer valuable rights, and their protection is essential to ensure justice and fairness. It emphasized that judicial interpretation should not impose additional restrictions on statutory rights unless explicitly provided by law. Conclusion: The Supreme Court concluded that an application for anticipatory bail is maintainable for an accused in custody for a different offence, provided they have not been arrested for the subsequent offence. The court dismissed the appeal, directing the High Court to decide the anticipatory bail application on its merits. The judgment emphasized the protection of personal liberty and the need for judicial discretion in granting anticipatory bail, ensuring that procedural laws are applied fairly and justly.
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