Solving a Paradox: Grant of Pre-Arrest Bail to an Arrestee

Recently, the Supreme Court of India has reserved the judgment in a case dealing with the question of maintainability of the anticipatory bail application by an accused, who has been arrested in one case, in a different case.¹ It is this question of law that is sought to be answered in the present article, which is structured as follows: first, the author elaborates upon the features of the provision as discussed in the Constitution Bench judgments on this topic; second, the author examines the two diametrically opposite views regarding the maintainability of such application; and lastly, concludes with answering what is the better approach of the two to solve this paradox.

A Misnomer Not Providing a Blanket Protection

The term “anticipatory bail”, despite being established in general as well as legal parlance, is considered a misnomer.² This is because the time when the order granting anticipatory bail becomes operative is the time when the arrest is made. Statutorily, Section 46(1) of the Code of Criminal Procedure, 1973 (“the 1973 Code”) provides the procedure for how an arrest has to be made. It states that the person or police officer who is making the arrest “shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.” It is this touch or confinement from which a conditional immunity is provided by a direction has been so given under Section 438 of the Code.³

The primary prerequisite to be fulfilled before applying for a direction under Section 438 is that there must be “reason to believe” of an arrest for commission of a non-bailable offence, which must not be vague apprehensions rather they must be found on reasonable grounds. A belief is said to be founded on reasonable grounds only if there is something tangible to go by, something which can be examined by the court, based on which the apprehension of the person to be arrested can be considered genuine.⁴ An important consequence of having a “reason to believe” of apprehending arrest before applying for the grant of a direction under Section 438 of the Code is that there can be no order for blanket protection.⁵ In Sushila Aggarwal vs State (NCT Of Delhi) (“Sushila Aggarwal”), the Apex Court has held that:

“A blanket order under Section 438, directing the police to not arrest the applicant, “wherever arrested and for whatever offence” should not be issued. An order based on reasonable apprehension relating to specific facts (though not spelt out with exactness) can be made. A blanket order would seriously interfere with the duties of the police to enforce the law and prevent commission of offences in the future.”⁶

The Two Diametrically Opposite Views

As mentioned earlier, the direction under Section 438(1) of the 1973 Code becomes operative at the time of arrest. Thus, there is no doubt that if the person has been arrested, he cannot apply for such direction if it relates to the same case. However, there are two contrasting views that have been taken by two different High Courts regarding the maintainability of anticipatory bail application by an applicant who is in custody in a different case. On one side, the Rajasthan High Court, relying on the observations of the Supreme Court in the case of Narinderjit Singh Sahni v. Union of India (“Narinderjit Singh Sahni”),⁷ has held that a person who is already in custody cannot have reasons to believe that he shall be arrested as he stands already arrested.⁸ On the other side, the Bombay HC in the case of Alnesh Akil Somji v. State of Maharashtra, disagreeing with the decision of the Rajasthan HC, has held that the application for grant of a direction under Section 438(1) of the 1973 Code by an arrestee in a different case is maintainable and any other interpretation would be against the purport of the provision.⁹ The author respectfully puts forward his difficulty in agreeing with the opinion of the Rajasthan HC. The basis of this disagreement is explained in the following passages.

I. Incorrect reliance on the judgment in Narinderjit Singh Sahni: The issue for consideration before the Supreme Court, in this case, was whether the persons who, despite obtaining the order of bail, were prevented from being set at liberty because of a production warrant issued in another case, could challenge this detention through a proceeding under Article 32 of the Constitution of India on the ground that it violated Article 21 of the Constitution. The Court answered this question in the negative. Relevant for discussion for the present topic is the observation which followed thereafter. The Court observed that:

“On the score of anticipatory bail, it is trite knowledge that Section 438 Cr.PC is made applicable only in the event of there being an apprehension of arrest. The petitioners in the writ petitions herein are all inside the prison bars upon arrest against all cognizable offences, and in the wake of the aforesaid question reliving the petitioner from unnecessary disgrace and harassment would not arise.”¹⁰

The Rajasthan HC recognised that the issue in Narinderjit Singh Sahni was only somewhat similar. Despite this acceptance, the former has relied upon the observations in the latter case. The author opines that the element of confusion was introduced because of the manner in which the Supreme Court deemed the petition to be not sustainable:

“In that view of the matter and since no infraction can be identified, the petition also cannot be sustained as regards the issue of anticipatory bail under Section 438.”¹¹

In Narinderjit Singh Sahni, the main relief which was sought was in the nature of a writ of mandamus or any other writ in the nature of direction under Section 438 of the Code of Criminal Procedure. Thus, two questions arose before the Apex Court: (I) Whether there was any infraction of any of the fundamental rights? (II) If the answer to the first question is in the affirmative, can an appropriate writ be issued, which is the nature of a direction under Section 438 of the new Code? Reading the above-quoted passage, prima facie, it appears that the Apex Court relied on the fact of the applicants being in jail (and the consequences which, according to the Court, follow from it) as a factor that weighed with it to dismiss the writ petition, along with the non-infraction of the fundamental right. To analyse whether the above-quoted passage is mere obiter dictum or a binding ratio decidendi, the following passage can be cited with benefit:

“Two questions may arise before a court and the court may determine both although only one of the may be necessary for the decision ultimately. The decision on the question which was necessary for the determination of the case would be the ratio; opinion on the question which was not necessary to decide the case would be an obiter dictum.”¹²

Since only the first question was necessary for the determination of the case, the observations of the Apex Court relating to anticipatory bail cannot be considered a binding precedent. In this context, in the opinion of the author, the view of Bombay HC is correct which has observed that:

“…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 distinct offence.”¹³

II. (Erroneously) “Examining the issue from another angle”: The Rajasthan HC also gave a practical example to justify why anticipatory bail cannot be granted. The example has been quoted below:

“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 recoveries as anticipatory bail once granted would continue to operate without limitation as laid down by the Apex Court in Sushila Aggarwal…”¹⁴

It is respectfully submitted that the appreciation of law and its application to the example as done above is erroneous. This is because of the following reasons:

1. In Sushila Aggarwal, the Apex Court has made it abundantly clear that a blanket order under Section 438 of the 1973 Code, directing the police not to arrest the applicant, “wherever arrested and for whatever offence”, should not be issued. Moreover, it has also been directed that the court that grants anticipatory bail must take care to specify the offence(s) in respect of which alone the order will be effective. As a result, even if the applicant is granted anticipatory bail in one case, it is very much possible that he can be arrested in another case. It is respectfully opined that the following observation of the Orissa HC, in a case dealing with an identical issue, lays down the correct law:

   “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. 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.”¹⁵

2. Even after anticipatory bail is granted, as per Section 438(2) of the 1973 Code, the Court granting the same is armed with an inclusive list of restrictions that can be imposed while granting anticipatory bail so that, inter alia, non-hampering of the investigation is ensured. If the conditions on which the anticipatory bail are violated – be it in the first case or the second, it is very much within the domain of the court to cancel the anticipatory bail.

3. As far as the fact of anticipatory bail being without any limitation is concerned, this only means that those restrictions which are not mentioned statutorily are not to be read into the provision. For example, despite the clear position of law that, as a general practice, the order granting anticipatory bail will not be of limited duration, some decisions took the view that it only operates for a limited duration,¹⁶ which set of judgments has clearly been held to not be laying down the correct law.

Answering in the Affirmative

After the foregoing discussion, the question left to be answered is this: should the applicant, who is in custody in one case, be allowed to maintain an application for anticipatory bail in another case? The answer, it is asserted, must be in the affirmative, and the reasons for the assertion are enumerated below.

I. Avoiding A Blanket Problem: Time and again, it has been reiterated that the court, while passing an order of anticipatory bail, cannot pass a blanket order covering the individual with a cloak of protection against any and every offence. It is argued that if the individual is prevented from obtaining a blanket protection from arrest into any and every offence, a logical corollary of same ought to be that the State cannot after arresting the accused for one offence use the arrest as a blanket in which the accused can be covered for every other offence.

II. Preserving the Element of Discretion: Even if there is a multiplicity of First Information Reports against one person, the courts are very much within their competence to consider those factors, which competence, it is submitted, is made available to them as per the existing legal framework. As per Section 438(1)(ii) of the 1973 Code, the antecedents of the applicant ought to be taken into consideration while deciding the question of grant of anticipatory bail. The provision clarifies that the antecedent will include the question as to whether the applicant has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence. There is no plausible reason as to why the meaning of antecedent should not be extended to include being in custody for an offence in which an investigation/trial is yet to be completed. Given that this statutory discretion is to be exercised within the circumference of judicially prescribed limits, which exercise itself is subject to judicial review, there is no justification as to why an applicant should be denied the right of applying for anticipatory bail merely because he has been arrested in another case.

III. The question of disgrace and harassment: Though only an obiter, the Supreme Court in Inderjit Singh Sahni has made observations, which, respectfully, appear to be bereft of attachment to actualities. If found unnecessary, the continued arrest is bound to bring avoidable disgrace to the arrestee. But more importantly, the harassment is not bound to subside if someone remains in custody. If anything, the kind and degree of harassment are bound to increase and vary manyfold.¹⁷

IV. In keeping with the original objective: All three reasons, which have been put forward hereinbefore, flow from and are in furtherance of the following statement of objective in the 41st Law Commission of India’s report, which was the precursor to the 1973 Code in general and Section 438 thereof in particular:

“The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this 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 the 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.”¹⁸

In conclusion, the author respectfully agrees with the ratio of the judgment of Bombay HC and the Orissa HC and concludes that the anticipatory bail application for a different offence by a person who is already arrested is maintainable. There is no statutory restriction that is present in Section 438 of the 1973 Code and incorporation of such restriction goes against the purpose for which the provision was introduced in the first place.