📖 Nirmal Jeet Kaur v. State of Madhya Pradesh, (2004) 7 SCC 558

Facts: A person whose application for anticipatory bail had been dealt with sought to pursue an application for regular bail, and the question arose as to what constitutes custody for the purpose of such an application, and whether a person who has not been arrested may apply.

Held: The Supreme Court held that the two jurisdictions operate in different fields and that custody is the foundation of an application for regular bail. It held that a person can be released on bail only when he is in custody, and that the word custody is not synonymous with arrest: a person who appears before a court and submits himself to its directions is in custody for the purpose of such an application, though he has not been arrested by any officer. The Court held that, conversely, a person who is protected by an order of anticipatory bail is not in custody — the very object of that order being that he shall not be taken into custody — and that an application by him for regular bail is therefore not maintainable. It emphasised that where anticipatory bail is refused, the applicant’s course is to surrender and apply for regular bail, which is frequently the swifter remedy.

Ratio: Custody is the foundation of an application for regular bail, and is not synonymous with arrest: a person who submits himself to the court’s directions is in custody. A person protected by anticipatory bail is not in custody, and his application for regular bail is not maintainable.

📖 Siddharth v. State of Uttar Pradesh, (2022) 1 SCC 676

Facts: An investigating agency took the view that an accused must be taken into custody before a charge sheet could be filed against him, and courts had declined to accept charge sheets where the accused had not been arrested. The Supreme Court considered whether arrest is a necessary incident of filing a report.

Held: The Supreme Court held that arrest is not a mandatory requirement before the filing of a charge sheet, and that there is no rule that a person must be taken into custody in order for the report to be accepted. The Court held that the power of arrest and the necessity of arrest are different: an officer must apply his mind to whether custody is required for the investigation, and where the accused has cooperated, has not absconded, and his custody was never considered necessary during the investigation, there is no reason to arrest him merely because the investigation has concluded. It observed that the practice of arresting an accused as a matter of course at that stage causes needless deprivation of liberty and burdens the courts with avoidable bail applications, and deprecated the insistence by some courts on custody as a precondition to taking the report on file. The Court emphasised that personal liberty is an important aspect of our constitutional mandate.

Ratio: Arrest is not a mandatory requirement before filing a charge sheet. The power of arrest and the necessity of arrest are different, and where the accused has cooperated and custody was never necessary during the investigation, there is no reason to arrest him on its conclusion.

⚠ Where the distinction decides a case

An application for regular bail by a person who is not in custody is premature. He must be in custody — by arrest, or by surrender and submission to the Court’s directions.

An application for anticipatory bail by a person already in custody is misconceived. He needs release from an existing custody, not a direction about a future arrest.

A person under an order of anticipatory bail cannot apply for regular bail, because he is by definition not in custody.

And the safeguards of Chapter V attach to the act of arrest. A person who surrenders is in custody but has not been arrested, so the provisions on grounds, intimation and the twenty-four hour production have nothing to operate on — his protection coming instead from the Court before which he surrendered.

The position stated shortly

1. Arrest is an act; custody is a state. Arrest is the taking of a person into the control of the law; custody is the condition of being under that control.

2. Every arrest produces custody, but not every custody follows an arrest.

3. Arrest is effected by actual touch or confinement of the body, unless there is a submission to the custody by word or action.

4. Where a woman is arrested, her submission on oral intimation is presumed, and unless the officer is a woman he shall not touch her.

5. The safeguards of Chapter V attach to arrest — the grounds, the intimation, the medical examination, and the production within twenty-four hours.

6. Custody is the precondition of regular bail. Without it the application is premature; and a person under anticipatory bail is not in custody, so his application for regular bail is not maintainable: Nirmal Jeet Kaur.

7. A person who surrenders and submits to the Court’s directions is in custody though never arrested — which is often the swifter course after anticipatory bail is refused.

8. The power to arrest and the necessity of arrest are different questions, and an officer must be able to show the necessity.

9. Section 35(3): where the offence carries less than seven years and arrest is not required, a notice of appearance shall issue, and a person who complies shall not be arrested.

10. And arrest is not mandatory before filing a charge sheet: where the accused cooperated and custody was never necessary, there is no reason to arrest him on the conclusion of the investigation: Siddharth.