Whether the court can impose condition when releasing accused on anticipatory bail that police will take him in custody for discovery U/S 27 of Evidence Act?

1) As regards the concern expressed on behalf of the state and the Union-that unconditional orders (i.e. those unrelated to a particular time frame) would result in non-co-operation of the Accused, with the investigating officer or authority, or that there would be reluctance to make statements to the prosecution, to assist in the recovery of articles that incriminate the Accused (and therefore can be used under Section 27, Evidence Act), this Court perceives such views to be vague and based apparently pre-conceived notions. If there is non-cooperation by an Accused - in the course of investigation, the remedy of seeking assistance of the court exists. Moreover, on this aspect too, Sibbia had envisioned the situation; the court had cited State of U.P. v. Deoman Upadhyaya MANU/SC/0060/1960 : 1961 (1) SCR 14, where this Court had observed as follows:

2) 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. 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 in sufficient. A person directly giving to a police officer by word of mouth information which may be used as evidence against him, may be deemed to have submitted himself to the "custody" of the police officer within the meaning of Section 27 of the Indian Evidence Act: Legal Remembrancer v. Lalit Mohan Singh (MANU/WB/0391/1921 : (1921) I.L.R. 49 Cal. 167), Santokhi Beldar v. King Emperor (MANU/BH/0088/1932 : (1933) I.L.R. 12 Pat. 241). Exceptional cases may certainly be imagined in which a person may give information without presenting himself before a police officer who is investigating an offence. For instance, he may write a letter and give such information or may send a telephonic or other message to the police officer.

3) This view was reiterated and applied in Vallabhdas Liladhar v. Asst. Collector of Customs MANU/SC/0096/1964 : 1965 (3) SCR 854. The observations in Sibbia (supra) are relevant, and are reproduced again, for facility of reference:

4) 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, 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.

5) Therefore, the "limited custody" or "deemed custody" to facilitate the requirements of the investigative authority, would be sufficient for the purpose of fulfilling the provisions of Section 27, in the event of recovery of an article, or discovery of a fact, which is relatable to a statement made during such event (i.e. deemed custody). In such event, there is no question (or necessity) of asking the Accused to separately surrender and seek regular bail.

6)   Therefore, courts and can, use their discretion, having regard to the offence, the peculiar facts, the role of the offender, circumstances relating to him, his likelihood of subverting justice (or a fair investigation), likelihood of evading or fleeing justice-to impose special conditions. Imposing such conditions, would have to be on a case to case basis, and upon exercise of discretion by the court seized of the application Under Section 438. In conclusion, it is held that imposing conditions such as those stated in Section 437(2) while granting bail, are normal; equally, the condition that in the event of the police making out a case of a likely discovery Under Section 27 of the Evidence Act, person released on bail shall be liable to be taken in police custody for facilitating the discovery. 

IN THE SUPREME COURT OF INDIA

Special Leave Petition (Criminal) Nos. 7281-7282/2017

Decided On: 29.01.2020

 Sushila Aggarwal and Ors. Vs. State (NCT of Delhi) and Ors.

Hon'ble Judges/Coram:

Arun Mishra, Indira Banerjee, Vineet Saran, M.R. Shah and S. Ravindra Bhat, JJ.

Citation:  MANU/SC/0100/2020.

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