Ashish Arora and Sumit Kumar Arora v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** **WEDNESDAY, THE 10TH DAY OF JULY 2013/19TH ASHADHA, 1935** **Bail Appl..No. 4154 of 2013 (A)** **------------------------------------------[CRIME NO. 1009/2012 OF KATTAKKADA POLICE STATION, THIRUVANANTHAPURAM DISTRICT]** **.............** **PETITIONERS/ACCUSED 3 & 4:** **---------------------------------------------** **1. ASHISH ARORA, AGED 24 YEARS, S/O.JANAK RAJ ARORA, 30 C.BRS NAGAR, LUDHIANA DISTRICT, PUNJAB STATE.** **2. SUMIT KUMAR ARORA, AGED 28 YEARS, S/O.SATISH KUMAR ARORA, 89 (A), SARABHA NAGAR, LUDHIANA DISTRICT, PUNJAB STATE.** **BY ADV. SRI.RAJIT.** ## **RESPONDENT/STATE:** **--------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM.** ## **BY DIRECTOR GENERAL OF PROSECUTION SRI. T. ASAF ALI.** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25-06-2013, ALONG WITH B.A. NOS. 4155/2013 & 4156/2013 THE COURT ON 10-07-2013 PASSED THE FOLLOWING:** **Prv.** S.S.SATHEESACHANDRAN,J. ========================== B.A. No. 4154,4155 & 4156 of 2013 =========================== Dated, this the 10th day of July, 2013 ORDER Petitioners, two in number, who are common in all the petitions, seek their enlargement on bail under section 439 of the Code of Criminal Procedure, for short the Code, in three crime cases registered at different Police Stations. In the above crimes, all of them, accused persons, six in number, in common, are proceeded for offences punishable under sections 120B,417, 468, 471 and 420 read with section 34 IPC and Sections 65, 66C and 66D of Information Technology Act. Petitioners are arrayed as fourth and fifth accused among the accused in all the crimes. The gist of accusation in the crimes, based on complaints separately filed by respective Manager of a Scheduled Bank, ## B.A.No.4154/2013&connec.cases 2 namely, Federal Bank, is that accused using fake and forged ATM cards fradulently withdrew large sum of cash from the accounts of bank through several ATM centres. 2. Against the accused in the three crimes, all of them, concededly, several crimes have been registered in the State and also in some other States on similar allegations imputed as referred to above. A detailed narration of the allegations imputed against the accused in common, or of petitioners proceeded as fourth and fifth accused, is not warranted since the only question posed for consideration in the bail applications rests on a limited and narrow compass whether an accused person formally arrested while he continued in judicial custody in another crime is competent or entitled to seek bail under section 437 of the Code before the Magistrate, or Section 439 of the Code before the Sessions Court/High Court. 3. Petitioners for seeking bail have set forth a common case thus: Against petitioners and other B.A.No.4154/2013&connec.cases 3 common accused twenty five cases are registered at different police stations imputing them of withdrawing cash using fake and forged ATM cards at different ATM Centres in different parts of the country. After the arrest of these petitioners on 25.6.2012 in one such crime, namely, Crime No.456/2012 of Kollam East Police Station, on production before the magistrate they were remanded to judicial custody, and, during the continuance of such custody, they were formally arrested in the three crimes covered by the present petitions, namely, Crime No.1009/2012 of Kattakkada Police Station, Thiruvananthapuram, Crime No.725/2012 of Panangad Police Station, Ernakulam, and Crime No.1027/2012 of Kalamassery Police Station, Ernakulam. Particulars of the date on which they were arrested in the aforesaid crimes have not been given; but, that is of little significance since their formal arrest in all the three crimes is conceded by Public Prosecutor with a reservation that such formal arrests were made during their B.A.No.4154/2013&connec.cases 4 judicial custody ordered in different crimes. Petitioners are on bail in twenty two cases out of the twenty five cases registered against them and in view of the formal arrest effected against them in the three crimes covered by these petitions they continue in detention in jail, is their case to seek release on bail stating that they have solvent persons to stand as sureties for them. 4. In B.A. 4154/2013 relating to Crime 1009/2012 of Kattakkada Police Station, Thiruvananthapuram learned counsel for petitioners submitted that the application moved for bail before the magistrate was not entertained but returned and, therefore, petitioners have directly approached this court to seek bail under section 439 of the Code. In B.A.4155/2013 relating to Crime 725/2012 of Panangad Police Station, concededly, without approaching the magistrate petitioners have directly moved for bail before this court. In B.A.No.4156/2013 relating to crime 1027/2012 of Kalamassery Police Station, Ernakulam, after bail B.A.No.4154/2013&connec.cases 5 was declined by magistrate and also sessions judge they have approached this court. Annexure A produced with the above petition is the order passed by the sessions judge. Some statements made by sessions judge in paragraph 2 of his order that petitioners had moved the magistrate for bail when they continued in judicial custody in the crime, admittedly, are incorrect. Petitioners were never under judicial custody in the three crimes and bail was applied by them on the ground that their formal arrest in the crimes while they continued in judicial custody in another crime enabled them to do so. Since the sole question emerging for consideration in these petitions is shown to be a pure question of law whether an accused formally arrested in a crime while he continued in judicial custody in another crime can seek for bail from the court on that ground I propose to consider it overlooking for the present entertainability of two of the above petitions which have been moved directly before this court to B.A.No.4154/2013&connec.cases 6 seek bail. ## 5. Relying on **Niranjan Singh and another v. Prabhakar Rajaram Kharote and others (AIR 1980 SC** **785),** particularly paragraph 7, 8 and 9 of that decision, learned counsel for petitioners Sri.Raghenth argued that when the law has taken control of a person as in a case where police has formally arrested an accused while he continued in judicial custody in another crime he is to be treated in custody on such arrest enabling and empowering him to seek bail as provided by the Code. Some of the observations made by this court in the Common Order, dated 3.8.2012, passed in a bunch of bail applications viz. B.A.No.4080/2012 in Crime No.1592/2011 of Thrissur Town West Police Station and others, in which petitioner in such applications, one among the accused proceeded in several crimes, who had been formally arrested in some of them while he continued in judicial custody in one of the crimes, are also banked upon by the B.A.No.4154/2013&connec.cases 7 counsel to contend that in the case of formal arrest also the mandate of law is production of the accused within 24 hours and if he is not produced or order of remand is not made in such case and if the accused is granted bail in another case, such accused cannot be detained in custody for the reason that arrest on that accused is formally recorded by the investigating officer in another crime. Observations so made in the above Order found approval later by this court in its Order dated 9.10.2012 in B.A.6747/2012 is the further submission of learned counsel, producing copy of the Orders referred to. Learned counsel contended that where a formal arrest is made by police while the accused continued in judicial custody in another crime, then, under such formal arrest also there is custody, and, such accused is empowered to seek bail under the provisions of the Code. 6. Sri.Asaf Ali, State Public Prosecutor submitted that where a formal arrest alone is made B.A.No.4154/2013&connec.cases 8 when an accused person continued in judicial custody in another crime it cannot be stated that he is under custody of the arresting officer or detained till his production before the court in the crime in which such formal arrest was recorded. In the present crimes though formal arrests were recorded against petitioners their production before court in such crimes could not be made despite obtaining production warrant at least in one of the crimes since by that time the accused had already been sent from jail in the State on production warrant issued by a court in Punjab, is the submission of learned Public Prosecutor. 7. Merely because petitioners were formally arrested in the three crimes covered by the petitions, it does not follow that their custody was obtained by police, and, there could be no custody or legal control over the person formally arrested by the arresting officer, is the submission of learned Public Prosecutor. Formal arrest was effected while they continued in B.A.No.4154/2013&connec.cases 9 judicial custody, and that being so legal control of the court which ordered such custody continued uninterrupted by formal arrest, submits Public Prosecutor. By effecting formal arrest of an accused in judicial custody in another crime, that alone, arresting officer will not get custody of that accused, and custody can be obtained only after issue of production transit warrant of that accused by the court of competent magistrate and in execution of such warrant his production is made and custody, if applied for, is handed over. Only after production of the accused before the magistrate after execution of production warrant issued there could be orders of custody with police or judicial over such accused even if a formal arrest had been recorded while he continued in judicial custody in another crime, is the submission of learned Public Prosecutor. When that be so, the applications moved by petitioners for bail when they are not in custody or detention in the present crimes are not entertainable either B.A.No.4154/2013&connec.cases 10 under section 437 or 439 of the Code, is the further submission of learned Public Prosecutor. 8. In every arrest there is custody but not so in all cases of custody. So much so the larger question that emerge for consideration is whether formal arrest and arrest are distinct and different, or one and the same having similar legal consequence. Sections 41 to 60 under Chapter V of the Code deal with the arrest of persons. How arrest is made is spelt out by Section 46. Section 46 of the Code states that in the event of non submission to custody by word or action the Police Officer or other person making the arrest shall actually touch or confine the body of the person to be arrested. Submission to custody is the core aspect involved when an arrest is made by word or action or touch upon the body of person to be arrested. Where a person is arrested, his physical production before the magistrate within the time mandated under section 57 of the Code and Article 22(2) of the Constitution of India has to be B.A.No.4154/2013&connec.cases 11 scrupulously complied with and his further detention whether in police custody or judicial custody can be only on the orders passed by the magistrate under section 167 of the Code. If such procedures are to be followed in a formal arrest as well against an accused who continued in judicial custody in another crime there is no meaning in terming such arrest as formal arrest. The Apex Court in **Central Bureau of Investigation, Special Investigation Cell-1, New Delhi v. Anupam** **J.Kulkarni (1992) 3 SCC 141)** while considering the question of granting police custody of a person arrested and produced before the magistrate under section 167(1) of the Code after holding that such custody could be given only during the first period of 15 days, and, on completion of that period further remand during the investigation can only be in judicial custody, has categorically stated that such bar does not apply if the same arrested accused is involved in a different case arising out B.A.No.4154/2013&connec.cases 12 of a different transaction. Dilating on the above question the apex court held thus:- “ **Even if he is in judicial custody in connection with the investigation of the earlier case he can formally be arrested regarding his involvement in the different case and associate him with the investigation of that other case and the Magistrate can act as provided under section 167(2) and the proviso and can remand him to such custody as mentioned therein during the** **first period of fifteen days and thereafter in accordance with the proviso as discussed above.”** When such formal arrest is made in a crime over an accused who continued in judicial custody in a different crime, it is implicit that steps are to be taken for his physical production before the magistrate of competent jurisdiction as provided B.A.No.4154/2013&connec.cases 13 under section 267 of the Code for orders on his custody, whether police or judicial by that magistrate. In the context it is also to be noted that no formal arrest as such is required to enable a Police Officer to seek production of an accused before the magistrate for the purpose of investigation when such accused is detained in prison whether he be under the judicial custody or for any other cause. Once such person is produced before the court in execution of a production transit warrant issued by the magistrate, who has the jurisdiction to do so, then custody can be applied for, if need be, or for his remand to judicial custody in the case under section 167 of the Code. However, it has to be noticed that custody of such accused person with police or judicial under section 167 of the Code by the magistrate presupposes that such person is arrested and detained in custody. So in the absence of physical production of the accused who continued in judicial custody in a different crime before the B.A.No.4154/2013&connec.cases 14 magistrate of competent jurisdiction having seisen over the crime in which formal arrest of that accused was recorded by the Police Officer, by formal arrest made, that alone, the arresting police officer does not get custody of that accused, and in a case of formal arrest mandatory prescriptions over production of the accused before magistrate envisaged under section 57 of the Code and Article 22(2) of the Constitution of India are inapplicable. 9. Section 437 of the Code is applicable for seeking bail in a case of non bailable offence from the magistrate. Such bail can be applied when any person accused of, or suspected of, the commission of any non bailable offence is arrested or detained without warrant by an officer-in-charge of a police station or appears or brought before a Court other than the High Court or Court of Session. Right to seek bail under the section is available only under the circumstances indicated above. A person seeking bail, who is accused of , or suspected B.A.No.4154/2013&connec.cases 15 of, the commission of a non bailable offence, must have been either arrested or detained without warrant by an officer in charge of a police station, and if not, he has to be physically present or brought before the magistrate. The question is whether an accused formally arrested while he continued in judicial custody in a different crime can seek bail from the magistrate under the section claiming that his formal arrest has to be treated as 'arrested' under the above section. Arrest as already indicated is always coupled with custody. In a formal arrest, arrest is only in form sans custody. The word “arrested” under section 437 of the Code necessarily has to be understood as 'under arrest' and thereby in custody when he seeks bail. Arrest of an accused formally but without the custody under the control of police cannot fall within the term 'arrested' unless after such formal arrest his physical presence is effected before court in execution of production warrant by the magistrate. So far as ## B.A.No.4154/2013&connec.cases 16 the entitlement of an accused person formally arrested to seek bail under section 439 of the Code, nothing more need be stated other than that special powers of the court of Session or High Court can be invoked for bail by a person under that section only when he is 'accused of an offence and in custody.' His custody must be in the case in which he applies bail and not in any other case. A person who has been formally arrested whose custody has not been obtained nor any orders passed over his custody by the magistrate of competent jurisdiction, cannot invoke section 439 of the Code to seek bail from the High Court or a Court of Session. 10. Learned counsel for petitioners has relied on the observations made over custody by Apex Court in **Niranjan Singh and another v. Prabhakar Rajaram Kharote and others (AIR 1980 SC 785)** to contend that in a formal arrest also there is custody. In **State of W.B. v. Dinesh Dalmia (2007)** B.A.No.4154/2013&connec.cases 17 **5 SCC 773)** the apex Court has held that what has been stated in **Niranjan Singh's case** only relates to “custody” in relation to section 439 of Code (paragraph 18). A Full Bench of the Madras High Court in **Roshan Beevi v. Joint Secretary to the Government (1984 Crl.LJ 134 (Madras)** tried to distinguish the law relating to concept of 'arrest'and 'custody' in Niranjan Singh's case, stating that the essential elements to constitute an arrest, there must be an intent to arrest under the authority, accompanied by a seizure or detention of the person in the manner known to law, which is so understood by the person arrested. The Apex Court in **State of Haryana and others v. Dinesh** **Kumar (2008) 3 SCC 222)** considered both the above cases (Roshan Beevi's case and Niranjan Singh's case) and reiterated the views expressed in **Niranjan Singh's case,** but, making clear that what was considered in Niranjan Singh's case was the entitlement of a person accused of an offence in ## B.A.No.4154/2013&connec.cases 18 custody, to move for bail under section 439 of the Code. The Apex Court has held thus:- **“The precondition, therefore, for applying the provisions of Section** **439 of the Code is that a person who is an accused must be in custody and his movements must have** **been restricted before he can move for bail. This aspect of the matter was considered in Niranjan Sigh case where it was held that a person can be stated to be in** **judicial custody when he surrenders before the court and submits to its** ## **directions.”** Observations made in **Niranjan Singh's case** as to when a person is in custody within the meaning of Section 439 of the Code, which section can be invoked only by an accused in custody, cannot have any application where an accused has been formally ## B.A.No.4154/2013&connec.cases 19 arrested in a case while he continued in judicial custody in another case. Dilating further on the interpretation placed over arrest and custody by the Madras High Court in **Roshan Beevi's case** the Apex Court has held in the above decision thus:- |**“The**|**interpretation**<br>**of**| |---|---| |**“arrest”**|**and**<br>**“custody”**| |**rendered**|**by the Full Bench in**| |**Roshan Beevi case may be**|| |**relevant **|**in the context of**| |**Sections**|**107 and 108 of the**| |**Customs Act where summons in**|| |**respect **|**of an enquiry may**| |**amount to**|**“custody” but not to**| |**“arrest”, **|**but such custody**| |**could subsequently materialise**|| |**into arrest. The position is**|| |**different**|**as**<br>**far**<br>**as**| |**proceedings in the court are**|| B.A.No.4154/2013&connec.cases 20 |**concerned **|**in relation to**|**in relation to**| |---|---|---| |**enquiry into offences under**||| |**the Penal **|**Code and **|**other**| |**criminal enactments.**||**In the**| |**latter set**|**of cases, in order**|| |**to obtain the benefit of bail**||| |**an accused has to surrender to**||| |**the custody of the court or**||| |**the police**|**authorities**|**before**| |**he can be granted the**||**benefit**| |**thereunder”**<br>**(emphasis**||| |**supplied).”**||| Where an accused is arrested formally alone while he continued in judicial custody in another crime there is no taking over of his custody or surrender to the custody of arresting officer. Even after such formal arrest his custody continues with the court which ordered his judicial custody. Police officer who effected such formal arrest can have his custody only with B.A.No.4154/2013&connec.cases 21 the permission of the court which ordered his judicial custody or the magistrate of competent jurisdiction who can issue production warrant and that too after physical production of the accused before him in execution of such warrant. 11. Learned counsel for petitioners relied on some observations made in the Common Order dated 3.8.2012 passed by this court in a bunch of bail applications, B.A.No.4080/12 and other connected petitions, and the approval made of those observations in the Order passed in B.A.6747/2012 dated 9.10.2012. Observations made in the common order passed in paragraphs 7 and 13 of B.A.4080/2012 canvassed by learned counsel read thus:- **“7. There can be no doubt that if the accused is formally arrested** **and detained in police station, the accused has to be produced before** **the learned Magistrate within a** B.A.No.4154/2013&connec.cases 22 **period of 24 hours or at least within a reasonable time. If the accused is in jail at a far away place or that it is not feasible to direct production of the accused within one or two days for valid reasons the position may be** ## **slightly different.** **Xx xx xx xxx** **13. If the accused is not produced or order of remand is not made in each of the cases and if the accused is granted bail in other cases, then the accused cannot be detained in custody simply for the reason that arrest of the accused was formally recorded by the investigating officer.”** Observations made above would at best show that if B.A.No.4154/2013&connec.cases 23 there was detention of accused in police station after formal arrest his production before magistrate within 24 hours or within a reasonable time is necessary. No ratio decidendi, after examining the issue whether in a formal arrest of an accused in judicial custody police is getting physical control of that accused has been laid down in the above Order. In the Order later passed in B.A.6747/2012 also other than approving the directions given to the magistrate in the execution of production warrant and also compliance of directions given by the Superintendent of Jail, and also for making the use of video facility, if so available, in passing appropriate orders over accused in jail, the issue involved over the entitlement of an accused formally arrested with reference to the question whether he could be under custody by such arrest was not considered as such and decided. So much so the observations made in the Orders referred to above even if such cases related to ## B.A.No.4154/2013&connec.cases 24 applications moved by accused persons 'formally arrested' cannot have any binding precedential value. 12. A Division Bench of the Madras High Court has elaborately considered the question relating to custody in formal arrest in **State by Inspector of Police v. K.N.Nehru (2011(2)LW (Crl)579)** . In that decision it has been held thus:- **“When a formal arrest is effected in prison, the accused** **does not come into the physical custody of the police at all, instead, he continues to be in judicial custody in connection with the other case. Therefore, there is no legal compulsion for the production of the accused before the Magistrate within 24 hours from the said formal arrest.”** B.A.No.4154/2013&connec.cases 25 I fully endorse and respectfully agree with the view expressed as above. In a formal arrest custody of person in prison does not come to the police officer. Where such person continued in judicial custody his legal control remains with the court which ordered his judicial custody and by his formal arrest in another crime the police officer doing so will not get his custody. 13. I do not find any merit in the submission made by counsel for petitioners that in view of the formal arrest ordered in the three crimes covered by these petitions even after obtaining bail in all other crimes petitioners have not been released from jail. Petitioners cannot be detained in jail solely on the basis of formal arrest effected if their release on bail has been ordered in the crimes in which they were detained in judicial custody. Their detention if it is only on the basis of formal arrest in another crime without any further orders for their detention after their production will be illegal. If B.A.No.4154/2013&connec.cases 26 detention of petitioners is illegal, then, the remedy of petitioners is not by seeking bail but challenging such detention as provided by law. There is no merit in these petitions, and they are dismissed. Sd/- **==> picture [169 x 10] intentionally omitted <==** **==> picture [337 x 10] intentionally omitted <==** **==> picture [135 x 13] intentionally omitted <==** **==> picture [253 x 12] intentionally omitted <==** tpl/- B.A.No.4154/2013&connec.cases 27