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TMI Blog2024 (11) TMI 788X X X X Extracts X X X X X X X X Extracts X X X X ..... ...............................................................................................................................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: "Whether an application for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 (for short, "CrPC") is maint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the same to its citizens. It was also held that the ancient Roman jurisprudential maxim ubi jus ibi remedium has contributed to the acceptance of access to justice as a basic and inalienable human right, which all civilized societies recognise and enforce. ii. The right of an accused to apply for pre-arrest bail under Section 438 of the CrPC 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... UESTION 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 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 Sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 indiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 confe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code. It follows, therefore, that bail can only be allowed to a person who has been arrested or detained without warrant or appears or is brought before a Court. Such person must be liable to arrest and must surrender himself before the question of bail can be considered. In the case of a person who is not under arrest, but for whose arrest warrants have been issued, bail can be allowed if he appears in Court and surrenders himself. No bail can be allowed to a person at liberty for whose arrest no warrants have been issued. The petitioners in the present case are, therefore, not entitled to bail. The question referred to the Full Bench is, therefore, answered in the negative." (Emphasis supplied) 21. Under the 1898 Code, the concept of anticipatory or pre-arrest bail was absent and the need for introduction of a new provision in the CrPC empowering the High Court and Court of Session to grant anticipatory bail was pointed out by the 41st Law Commission of India in its report dated September 24, 1969. It observed thus in para 39.9 of the said report (Volume I): "Anticipatory bail 39.9 The suggestion for directing the release of a person on bail prior to his arrest (commonly k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntendent 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of a civilised existence. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alf 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... patory 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 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 diffi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 emp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However, since Siddharam Satlingappa Mhetre (supra) was delivered by a coram of two Judges, the matter again reached the Constitution Bench in the judgment rendered in the case of Sushila Aggarwal (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 condu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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? 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 reasonin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vestigation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ference 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 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 custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson 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, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 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 accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has led us to the following conclusions: i. An accused is entitled to seek anticipatory bail in connection with an offence so long as he is not arrested in relation to that offence. Once he is arrested, the only remedy available to him is to apply for regular bail either under Section 437 or Section 439 of the CrPC, as the case may be. This is evident from para 39 of Gurbaksh Singh Sibbia (supra). ii. There is no express or implied restriction in the CrPC or in any other statute that prohibits the Court of Session or the High Court from entertaining and deciding an anticipatory bail application in relation to an offence, while the applicant is in custody in relation to a different offence. No restriction can be read into Section 438 of the CrPC to preclude an accused from applying for anticipatory bail in relation to an offence while he is in custody in a different offence, as that would be against the purport of the provision and the intent of the legislature. The only restriction on the power of the court to grant anticipatory bail under Section 438 of the CrPC is the one prescribed under sub-section (4) of Section 438 of the CrPC, and in other statutes like the Act, 1989, et ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 38 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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