Dhanraj Aswani vs Amar S. Mulchandani & Anr.

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 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 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]

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.