Police Can Formally Arrest An Accused In Relation To An Offence While He Is Already In Custody In Different Offence: Supreme Court
The Supreme Court observed that a police officer can formally arrest a person in relation to an offence while he is already in custody in a different offence.
The Court clarified that such formal arrest doesn’t bring the accused in the custody of the police officer as the accused continues to remain in the custody of the Magistrate who remanded him to judicial custody in the first offence. Once such formal arrest has been made, the police officer has to make an application under Section 267 of the CrPC before the Jurisdictional Magistrate for the issuance of a P.T. Warrant without delay, it added.
The Court observed thus in a criminal appeal filed against the judgment of Bombay High Court by which it overruled the objection raised by the complainant regarding the maintainability of the anticipatory bail.
The three-Judge Bench of CJI D.Y. Chandrachud, Justice J.B. Pardiwala, and Justice Manoj Misra emphasised, “… a police officer can formally arrest a person in relation to an offence while he is already in custody in a different offence. However, such formal arrest doesn’t bring the accused in the custody of the police officer as the accused continues to remain in the custody of the Magistrate who remanded him to judicial custody in the first offence. Once such formal arrest has been made, the police officer has to make an application under Section 267 of the CrPC before the Jurisdictional Magistrate for the issuance of a P.T. Warrant without delay.”
The Bench added that if, based on the requirements prescribed under Section 267 of the Criminal Procedure Code (CrPC), a P.T. Warrant is issued by the jurisdictional Magistrate, then the accused has to be produced before such Magistrate on the date and time mentioned in the warrant, subject to Sections 268 and 269 respectively of the CrPC.
Senior Advocate Sidharth Luthra represented the appellant while Senior Advocate Siddharth Dave represented the respondents.
Facts of the Case -
A case was registered against the accused for the offences punishable under Sections 406, 409, 420, 465, 467, 468, and 471 respectively read with Section 34 of the Indian Penal Code (IPC). The respondent (original accused) was arrested and while in custody, he apprehended his arrest in connection with the crime registered against him at the instance of the appellant. In such circumstances, he prayed for anticipatory bail before the High Court. The appellant intervened in the proceedings of the anticipatory bail application and raised an objection that as respondent 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 in his capacity as the complainant was overruled and the High Court proceeded to hold that although the respondent 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 was before the Apex Court. A short question of general public importance arose for consideration before the Court: “Whether an application for anticipatory bail under Section 438 of the CrPC is maintainable at the instance of an accused while he is already in judicial custody in connection with his involvement in a different case?”
The Supreme Court in the above regard noted, “Upon production before the jurisdictional Magistrate, the accused can be remanded to police or judicial custody or be enlarged on bail, if applied for and allowed. The only reason why we have delineated the procedure followed in cases where a person already in custody is required to be arrested in relation to a different offence is to negate the reasoning of the Rajasthan, Delhi and Allahabad High Courts that once in custody, it is not possible to re-arrest a person in relation to a different offence.”
The Court said that 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 and 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 the accused.
“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”, it further elucidated.
The Court also clarified that mere formal arrest (on-paper arrest) would not extinguish the right of the accused to apply for anticipatory bail 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 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”, it added.
The Court remarked, that each arrest a person faces compounds their humiliation and ignominy, 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 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”, it observed.
The Court said that it is incorrect to assume that subsequent arrests diminish the level of humiliation and on the contrary, each additional arrest exacerbates the person’s shame making the cumulative impact of such legal entanglements increasingly devastating.
Accordingly, the Apex Court dismissed the appeal and directed the High Court to decide the anticipatory bail of the respondent accused on its own merits.
Cause Title- Dhanraj Aswani v. Amar S. Mulchandani & Anr. (Neutral Citation: 2024 INSC 669)
Appearance:
Appellant: Senior Advocate Sidharth Luthra, Advocates Prashant S. Kenjale, Amol Nirmalkumar Suryawanshi, Srishty Pandey, Ashutosh Chaturvedi, Gayatri Virmani, and Shubham Gavande.
Respondents: Senior Advocate Siddharth Dave, AOR Siddhant Sharma, Advocates Shantanu Phanse, SS Bedekar, Prastut Dalvi, and Vidhi Thaker.
