Dhanraj Aswani vs Amar S. Mulchandani 2024 INSC 669 – Anticipatory Bail

Code Of Criminal Procedure, 1973; Section 438 – [BNSS,2023; Section 482]– 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- 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 – 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- 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- 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 – 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- custody in one case does not have the effect of taking away the apprehension of arrest in a different case -(Para 60) -Distinguished Narinderjit Singh Sahni v. Union of India, [2001] Supp. 4 SCR 114, (2002) 2 SCC 210 :

Code Of Criminal Procedure, 1973; Section 46– Arrest involves actual touch or confinement of the body of the person sought to be arrested. However, arrest can also be effected without actual touch if the person sought to be arrested submits to the custody by words or action-The 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 is: 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. (Para 46-51)

Code Of Criminal Procedure, 1973; Section 267-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. (Para 52)

Code Of Criminal Procedure, 1973; Section 438 – [BNSS,2023; Section 482]– Principles of law as regards the grant of anticipatory bail summarized – Gurbaksh Singh Sibbia v. State of Punjab, [1980] 3 SCR 383, (1980) 2 SCC 565: 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. (Para 32) –Sushila Aggarwal v. State (NCT of Delhi), [2020] 2 SCR 1, (2020) 5 SCC 1: 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-tocase 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. – 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. (Para 35-36)