Whether accused who is released on anticipatory bail can be taken in custody by police for facilitating the discovery?

An order of anticipatory bail does not in any way, directly or indirectly, take away from the police their right to investigate into charges made or to be made against the person released on bail. In fact, two of the usual conditions incorporated in a direction issued under Section 438 (1) are those recommended in Sub-section (2) (i) and

(ii) which require the applicant to co-operate with the police and to assure that he shall not tamper with the witnesses during and after the investigation. While granting relief under Section 438 (1), appropriate conditions can be imposed under Section 438 (2) so as to ensure an uninterrupted investigation. One of such conditions can even be that in the event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the discovery. Besides, if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v. Deoman Upadhyaya to the effect that when a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him, he may appropriately be deemed to have surrendered himself to the police. The broad foundation of this rule is stated to be that Section 46 of the Code of Criminal Procedure does not contemplate any formality before a person can be said to be taken in custody: submission to the custody by word or action by a person is sufficient. For similar reasons, we are unable to agree that anticipatory bail should be refused if a legitimate case for the remand of the offender to the police custody under Section 167 (2) of the Code is made out by the investigating agency.

SUPREME COURT OF INDIA

GURBAKSH SINGH SIBBIA ETC. Vs. STATE OF PUNJAB


DATE OF JUDGMENT09/04/1980


BENCH:
CHANDRACHUD, Y.V. ((CJ)
BHAGWATI, P.N.
UNTWALIA, N.L.
PATHAK, R.S.
REDDY, O. CHINNAPPA (J)

CITATION:
 1980 AIR 1632  1980 SCR  (3) 383
 1980 SCC  (2) 565
 CITATOR INFO :
 R    1982 SC 149 (259)
 E&R    1985 SC 969 (6,8,12)


ACT:
     Bail-Anticipatory Bail-Section  438  of  the  Code  of
Criminal Procedure  Code, 1973 (Act 2 of 1974),  Scope of-
Judicial   balancing of   personal liberty   and the
investigational powers of the Police, explained.
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