J.B. PARDIWALA, J. :-

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 Criminal Appeal No. 2501/2024 Page 2 of 73 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.

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A. SUBMISSIONS ON BEHALF OF THE APPELLANT

4. Mr. Sidharth Luthra, the learned Senior counsel appearing for the appellant canvassed the following submissions:

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 surrender and pray for regular bail on the principle of “deemed custody” both in Magistrate as well as Sessions triable cases.

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5. Mr. Luthra, with a view to fortify his aforesaid submissions, placed strong reliance on the following decisions:

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. Criminal Appeal No. 2501/2024 Page 6 of 73 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:

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 Criminal Appeal No. 2501/2024 Page 10 of 73 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:

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 Criminal Appeal No. 2501/2024 Page 12 of 73 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 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 Criminal Appeal No. 2501/2024 Page 13 of 73 observations made by the High Court in paragraph 6 of the said decision are extracted as under:

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:

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 Criminal Appeal No. 2501/2024 Page 14 of 73 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:

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:

10. Similarly, the Hon’ble Apex Court has made following observations in the case of Shri Gurbaksh Singh Sibbia and others (supra):

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 Criminal Appeal No. 2501/2024 Page 16 of 73 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.

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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 Criminal Appeal No. 2501/2024 Page 17 of 73 obscurity and ambiguity, there is no place for supposition.” (Emphasis supplied)

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.

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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 connection Criminal Appeal No. 2501/2024 Page 19 of 73 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.

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18. We may refer to some of the relevant observations made by the learned Single Judge as under:

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 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 Criminal Appeal No. 2501/2024 Page 22 of 73 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:

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 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 Criminal Appeal No. 2501/2024 Page 24 of 73 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:

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):

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 Criminal Appeal No. 2501/2024 Page 26 of 73 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:

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:

24. Section 438 of the CrPC reads thus:

(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:

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 Criminal Appeal No. 2501/2024 Page 29 of 73 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, 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).

Criminal Appeal No. 2501/2024 Page 30 of 73 (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:

Criminal Appeal No. 2501/2024 Page 31 of 73

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.

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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, Criminal Appeal No. 2501/2024 Page 32 of 73 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.

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49. An eminent English Judge, Lord Alfred Denning observed:

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 Criminal Appeal No. 2501/2024 Page 33 of 73 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:

Chief Justice Y.V. Chandrachud observed thus:

section(2).

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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 free enough to be able to take these possibilities in its stride and to meet these challenges.

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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:

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 Criminal Appeal No. 2501/2024 Page 38 of 73 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.

32. The following principles of law as regards the grant of anticipatory bail can be discerned from Gurbaksh Singh Sibbia (supra):

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. Criminal Appeal No. 2501/2024 Page 40 of 73

34. 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:

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 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: Criminal Appeal No. 2501/2024 Page 42 of 73

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.

Criminal Appeal No. 2501/2024 Page 43 of 73 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 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. Criminal Appeal No. 2501/2024 Page 44 of 73 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.

Criminal Appeal No. 2501/2024 Page 45 of 73

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 Criminal Appeal No. 2501/2024 Page 46 of 73 investigating the other offence. The relevant paragraphs of Anupam J.

Kulkarni (supra) are extracted hereinbelow:

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 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 Criminal Appeal No. 2501/2024 Page 50 of 73 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 Criminal Appeal No. 2501/2024 Page 51 of 73 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.

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. Criminal Appeal No. 2501/2024 Page 52 of 73

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:

45. Section 46(1) of the CrPC reads as under:

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:

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:

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 Criminal Appeal No. 2501/2024 Page 55 of 73 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:

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 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 Criminal Appeal No. 2501/2024 Page 58 of 73 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 Criminal Appeal No. 2501/2024 Page 59 of 73 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 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 Criminal Appeal No. 2501/2024 Page 60 of 73 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 Criminal Appeal No. 2501/2024 Page 61 of 73 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 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 Criminal Appeal No. 2501/2024 Page 62 of 73 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:

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 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 Criminal Appeal No. 2501/2024 Page 64 of 73 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: Criminal Appeal No. 2501/2024 Page 65 of 73

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:

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:

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.

Criminal Appeal No. 2501/2024 Page 71 of 73

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, Criminal Appeal No. 2501/2024 Page 72 of 73 it is clarified that each of such applications will have to be decided by the competent courts on their own merits.

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.

…………………………………….CJI (Dr. Dhananjaya Y. Chandrachud) ………………………………………J. (J.B. Pardiwala) ………………………………………J. (Manoj Misra) New Delhi;

9th September, 2024.

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