Accused Released On Anticipatory Bail Need Not Surrender And Seek Regular Bail For Recovery Under Section 27 Evidence Act : SC [Read Judgment]

The Constitution Bench of the Supreme Court which held that anticipatory bail should not be limited by time under ordinary circumstances has also discussed in the judgment the impact of recovery under Section 27 of the Indian Evidence Act on the bail granted.

In this regard, the bench comprising Justices Arun Mishra, Indira Banerjee, Vineet Saran, M R Shah and Ravindra Bhat in the case Sushila Aggarwal and others v State of NCT of Delhi and others largely re-affirmed the principles laid down in the case Shri Gurbaksh Singh Sibbia and others v. State of Punjab (1980) 2 SCC 565; 

The Sibbia judgment, also by a 5-judge bench, was considering the correctness of a judgment of Punjab and Haryana High Court which had restricted the scope of grant of anticipatory bail. The High Court, among other things, had held that in cases wherever a reasonable cause to secure incriminating material in terms of Section 27 of the Evidence Act could be made out, anticipatory bail should not be granted.

In Sibbia, the SC disapproved the imposition of such a blanket restriction. The Court in that case held that while granting bail, the Court can impose a condition that in the event of a possibility of Section 27 recovery, the accused will be liable to be taken into custody. It was also added that the benefit of Section 27 can be claimed even in respect of "limited custody" or "deemed custody".

In the words of the Court in Sibbia case :

"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."

In State of U.P. v Deoman Upadhyaya, the Court had discussed a concept of "deemed custody" for the purpose of Section 27 :

"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"

From these two judgments, the Constitution Bench in Sushila Aggarwal held that the "limited custody" or "deemed custody", which the police has over the accused released on anticipatory bail when he appears before the investigating officer as per the bail conditions, would satisfy the requirements of Section 27 of the Evidence Act.

"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", observed the judgment authored by Justice Ravindra Bhat.

This was reiterated in the summary of conclusions (no.8) by stating :

"The observations in Sibbia regarding "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. Sibbia (supra) had observed that "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."

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