Orissa High Court: In a batch of anticipatory bail applications under Section 438 of the Code of Criminal Procedure, 1973 (‘CrPC’), Sashikanta Mishra*, J., answered the issue that whether an application for anticipatory bail is maintainable at the instance of a person who is already in custody in connection with a different case, in affirmative.
The matter at hand involved several anticipatory bail applications at the instance of present applicants, who were apprehending arrest under various offences of the Penal Code, 1860 (IPC) and the Narcotic Drugs and Psychotropic Substances, Act, 1985 (‘NDPS Act’). The present applicants were already in custody in connection with different cases. The question before the Court was whether the applicants, being already in custody albeit in connection with different cases, can maintain the applications for anticipatory bail. The applicant argued that only because they were already in custody for a particular case, it did not imply that they could not protect their liberty in connection with another case registered against them.
Analysis
“Liberty is one of the most cherished objects of our constitution as guaranteed under Article 21.”
Regarding the contention that Section 438 of the CrPC was not a part of the Code of the Criminal Procedure, 1889, but included in the CrPC with the specific intention to protect the liberty of a person, the Court said that the legislature’s intent was to protect a person from the ignominy of being arrested and thereby being subjected to undue humiliation and loss of dignity.
Relying on Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 and Sushila Aggarwal v. State (NCT of Delhi), (2018) 7 SCC 731, the Court said that the power under Section 438 of the CrPC cannot be curbed, save and except as provided under Sub-Section 4, which bars the application of the same to any case involving the arrest of any person for committing an offence under Section 376(3) or Section 376AB or 376DA or 376DB of the IPC.
Whether a person already in custody in one case, seek anticipatory bail in another case?
The Court on perusal of the relevant provisions of arrest, said that arrest means physical confinement of a person with or without the order of the Court. The Court noted that under Section 167(2) of the CrPC, whereby ‘remand’ is governed, is applicable to a case where the accused is already arrested, and charge-sheet has not been filed. The Court elaborated 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 another case and in such situation, the accused can only be remanded in connection with the new case on the order of the Court. Answering the question, that whether such order of remand by the Court, can be equated with an act of arrest, the Court said that since the accused is already arrested and in custody, he can only be taken on remand for the purpose of investigation, if required.
Whether an order under Section 438 of the CrPC can be issued in relation to an order of remand?
The Court explained that a person who is in custody in connection with a case and a new case is registered against him for commission of some other offence, the police can either seek an order of remand from the Court, if the presence of the accused is required for investigation or arrest the accused, as and when he is released from custody in connection with the previous case and it is only in the second scenario that an order of anticipatory bail under Section 438 can become effective because only then can he be ‘arrested’.
Further, the Court said that the anticipatory bail operates at a future time. It is not possible to arrest a person who is already in custody in one case. When he is released from custody in such (former) case, and he is sought to be arrested in the new case, there is no reason why he shall be restrained from approaching the Court beforehand to arm himself with necessary protection in the form of anticipatory bail. The Court clarified that he cannot be arrested if he is in custody in the former case, so, his right to obtain an order in the new case beforehand, that can be effective only upon his release from custody in the former case, cannot be denied under the scheme of the Code. The anticipatory bail, if granted, shall however be effective only if he is arrested in connection with the subsequent case consequent upon his release from custody in the previous case.
Right of accused and right of investigating agency to investigate
The Court said that nothing in the CrPC 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 another case. The Court stated that the accused can exercise his right of moving before the Court for anticipatory bail and 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. However, both the rights can operate at their respective and appropriate times. The Court also explained 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 grant of anticipatory bail in the subsequent case, as then he would be technically in custody in connection with the subsequent case also. In such a scenario, the accused can only seek regular or custody bail.
The Court also elaborated that the grant of anticipatory bail does not and cannot grant the accused a licence to avoid investigation or clothe him with any immunity therefrom.
Decision
In the matter at hand, the Court noted that the accused person was already in custody in another case and that there was nothing material on record to suggest that custodial interrogation in the subsequent case was necessary. Therefore, the Court allowed all three prayers seeking anticipatory bail.
[Sanjay Kumar Sarangi v. State of Odisha, 2024 SCC OnLine Ori 1334, Decided on: 10-04-2024]
*Judgment Authored by: Justice Sashikanta Mishra
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