Karnataka High Court
Jeevan M vs State Of Karnataka on 25 July, 2025
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
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CRL.P No. 8285 of 2025
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY
CRIMINAL PETITION NO. 8285 OF 2025
BETWEEN:
1. JEEVAN M
S/O MUTHANNA I.B
AGED ABOUT 30 YEARS
R/AT NO.21, DEVARAJU'S HOUSE
LAKSHMIPURA, DASANAPURA HOBLI
BENGALURU NORTH TALUK
BENGALURU - 562 123.
2. SMT. ASHA
W/O GANGADHAR H.S
AGED ABOUT 30 YEARS
R/AT SITE NO.21 DEVARAJU'S HOUSE
LAKSHMIPURA, DASANAPURA HOBLI
BENGALURU NORTH TALUK
BENGALURU - 562 123, PREMANENT RESIDENT
Digitally OF BEEJI KOPPALU UJJINI POST
signed by HULIYURDURGA HOBLI, KUNIGAL
NANDINI M S TALUK, TUMAKURU DISTRICT - 572 123.
Location: ...PETITIONERS
HIGH COURT
OF (BY SRI VIVEK S. REDDY, SR. COUNSEL FOR
KARNATAKA
SRI RAJAKUMAR H.K, ADV.)
AND:
STATE OF KARNATAKA
MADANAYAKAHALLI P.S
BENGALURU RURAL DISTRICT
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT COMPLEX, BENGALURU - 560 001.
...RESPONDENT
(BY SRI B.A. BELLIAPPA, SPP A/W
SMT. WAHEEDA M.M, HCGP)
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THIS CRL.P IS FILED U/S.439 (FILED U/S.483 BNSS) CR.P.C
PRAYING TO RELEASE THEM ON BAIL S.C.NO.9/2025 OF
MADANAYAKANAHALLI P.S., REGISTERED FOR THE OFFENCE P/US/
120-B,302,392,201 R/W SEC.34 OF IPC PENDING ON THE FILE OF
THE VI ADDL. DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL
DISTRICT.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY
ORAL ORDER
1. Accused nos.1 & 2 in S.C.No.9/2025 pending before the
Court of VI Addl. District & Sessions Judge, Bengaluru Rural
District, arising out of Crime No.129/2024 registered by
Madanayakanahalli Police Station, Bengaluru, for the offences
punishable under Sections 302, 392, 120B read with 34 of IPC,
are before this Court under Section 483 of BNSS, 2023, seeking
regular bail.
2. Heard the learned Counsel for the parties.
3. FIR in Crime No.129/2024 was registered by
Madanayakanahalli Police Station, Bengaluru, initially for the
offences punishable under Sections 302 & 201 of IPC against
the petitioners based on the first information dated 13.02.2024
received from Devaraj S/o Kalappa.
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4. It appears that petitioners who were in judicial custody in
Crime No.248/2024 registered by Tavarekere Police Station,
Bengaluru, for the offences punishable under Sections 309(6),
329(4), 126(2) & 311 of BNS, 2023, were produced under body
warrant in Crime No.129/2024 before the jurisdictional Court of
Magistrate on 12.11.2024 and at request, the petitioners were
remanded to police custody in Crime No.129/2024 till
20.11.2024. On 16.11.2024, petitioners were produced before
the Court of learned Magistrate in Crime No.129/2024 with a
requisition to remand them to judicial custody. However, the
learned Magistrate on the said date, rejected the requisition of
the Investigating Officer and remanded the petitioners to
judicial custody in Crime No.248/2024 registered by Tavarekere
Police Station. After completing investigation in Crime
No.129/2024, charge sheet was filed against the petitioners for
the aforesaid offences, and thereafter, the case was committed
to jurisdictional Sessions Court and numbered as
S.C.No.9/2025 which is now pending before the Court of IV
Addl. District & Sessions Judge, Bengaluru Rural District. In the
said case, petitioners had filed bail application under Section
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439 of Cr.PC seeking regular bail and the same was rejected on
03.05.2025. Therefore, they are before this Court.
5. Learned Senior Counsel appearing for the petitioners
having reiterated the grounds urged in the petition, submits
that petitioners were not remanded to judicial custody in Crime
No.129/2024 registered by Madanayakanahalli Police Station,
and therefore, their custody in the said case was illegal. The
learned Sessions Judge has erred in rejecting their bail
application. Petitioners have been enlarged on bail in
S.C.No.33/2025 arising out of Crime No.248/2024 registered
by Tavarekere Police Station. Therefore, they are entitled for
bail.
6. Per contra, learned SPP submits that as on the date of
rejection of petitioners bail application in S.C.No.9/2025 arising
out of Crime No.129/2024, petitioners were not at all in
custody. They were released from jail in S.C.No.33/2025
arising out of Crime No.248/2024 much prior to rejection of
their bail application in the present case on 03.05.2025.
Subsequently, they have been now arrested by executing non-
bailable warrant issued by the Trial Court in S.C.No.9/2025.
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After they were arrested and remanded to judicial custody in
S.C.No.9/2025, they have not approached the Trial Court
seeking regular bail, and therefore, this petition cannot be
entertained. He submits that after charge sheet was filed in
Crime No.129/2024, the committal court without appreciating
that accused in the said case were neither arrested and
remanded to custody nor were granted anticipatory bail in the
said case, had committed the case to the Court of jurisdictional
Sessions Judge and it appears that therefore, a confusion arose
before the court of learned Sessions Judge. Accordingly, he
prays to dismiss the petition.
7. The records in the present case reveal that the petitioners
who were arrested in Crime No.248/2024 registered by
Tavarekere Police Station, for the offences punishable under
Sections 309(6), 329(4), 126(2) & 311 of BNS, 2023, were
subsequently produced under body warrant in the present case
i.e., Crime No.129/2024 registered by Madanayakanahalli
Police Station, on 12.11.2024, and on the said date, at the
request of the Public Prosecutor, petitioners were remanded to
police custody for a period of eight days. Petitioners were,
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thereafter, produced before the learned Magistrate on
16.11.2024 with a requisition by the police to remand them to
judicial custody in the present case. However, the learned
Magistrate had rejected the said requisition of the police and
remanded the petitioners to judicial custody in the original case
i.e., Crime No.248/2024.
8. After completing investigation in Crime No.248/2024,
charge sheet was filed and the case was committed to the
jurisdictional Sessions Court and numbered as S.C.No.33/2025.
In Crime No.129/2024, after the charge sheet was filed, the
case was committed to the jurisdictional Sessions Court and
numbered as S.C.No.9/2025. Petitioners had filed regular bail
application before the learned Sessions Judge in
S.C.No.33/2025 and also in S.C.No.9/2025. In S.C.No.33/2025
arising out Crime No.248/2024 registered by Tavarekere Police
Station, petitioners were granted bail and on complying the bail
conditions, they were directed to be released from jail, and
accordingly, accused no.2 was released on 25.04.2025 and
accused no.1 was released on 29.04.2025.
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9. The bail application filed by the petitioners in
S.C.No.9/2025 arising out of Crime No.129/2024 registered by
Madanayakanahalli Police Station was rejected on 03.05.2025.
As on the said date, petitioners who were in judicial custody in
S.C.No.33/2025 were already released from jail. In other
words, as on the date of rejection of the bail application of
petitioners in S.C.No.9/2025, they were not in custody. After
realizing the same, at the request of the police, on the same
day non-bailable warrant was issued against the petitioners by
the learned Sessions Judge in S.C.No.9/2025 returnable by
04.06.2025. The said non-bailable warrant issued against the
petitioners was executed and the petitioners were produced
before the learned Sessions Judge in S.C.No.9/2025 on
24.05.2025 and on the said date, they were remanded to
judicial custody. The bail application filed by them subsequently
before the learned Sessions Judge was dismissed as withdrawn.
10. Chapter-XXIV of BNSS, 2023, provides for attendance of
persons confined or detained in prisons. Section 302 of BNSS,
2023, which is parimateria to Section 267 of Cr.PC., provides
for power to require attendance of prisoners.
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11. Section 303 of BNSS, 2023, provides for power of State
Government or Central Government to exclude certain persons
from operation of Section 302, and Section 304 of BNSS, 2023,
provides for officer in charge of prison to abstain from carrying
out order in certain contingencies. Section 305 of BNSS, 2023,
provides for prisoner to be brought to court in custody.
Sections 302, 303, 304 & 305 of BNSS, 2023, reads as under:
“302. Power to require attendance of
prisoners(1) Whenever, in the course of an inquiry, trial or
proceeding under this Sanhita, it appears to a Criminal
Court,–
(a) that a person confined or detained in a
prison should be brought before the Court
for answering to a charge of an offence, or
for the purpose of any proceedings against
him; or
(b) that it is necessary for the ends of justice
to examine such person as a witness,the Court may make an order requiring the officer in
charge of the prison to produce such person before the
Court answering to the charge or for the purpose of
such proceeding or for giving evidence.
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(2) Where an order under sub-section (1) is made
by a Magistrate of the second class, it shall not be
forwarded to, or acted upon by, the officer in charge of
the prison unless it is countersigned by the Chief Judicial
Magistrate, to whom such Magistrate is subordinate.
(3) Every order submitted for countersigning
under sub-section (2) shall be accompanied by a
statement of the facts which, in the opinion of the
Magistrate, render the order necessary, and the Chief
Judicial Magistrate to whom it is submitted may, after
considering such statement, decline to countersign the
order.
303. Power of State Government or Central
Government to exclude certain persons from
operation of Section 302
(1) The State Government or the Central
Government, as the case may be, may, at any time,
having regard to the matters specified in sub-section
(2), by general or special order, direct that any person
or class of persons shall not be removed from the prison
in which he or they may be confined or detained, and
thereupon, so long as the order remains in force, no
order made under section 302, whether before or after
the order of the State Government, shall have effect in
respect of such person or class of persons.
(2) Before making an order under sub-section (1),
the State Government or the Central Government in the
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cases instituted by its central agency, as the case may
be, shall have regard to the following matters,
namely:–
(a) the nature of the offence for which, or the
grounds on which, the person or class of
persons has been ordered to be confined or
detained in prison;
(b) the likelihood of the disturbance of public
order if the person or class of persons is
allowed to be removed from the prison;
(c) the public interest, generally.
304. Officer in charge of prison to abstain
from carrying out order in certain contingencies
Where the person in respect of whom an order is
made under section 302 —
(a) is by reason of sickness or infirmity unfit to
be removed from the prison; or
(b) is under committal for trial or under
remand pending trial or pending a
preliminary investigation; or
(c) is in custody for a period which would
expire before the expiration of the time
required for complying with the order and
for taking him back to the prison in which
he is confined or detained; or
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(d) is a person to whom an order made by the
State Government under section 303
applies,
the officer in charge of the prison shall abstain
from carrying out the Court’s order and shall send
to the Court a statement of reasons for so
abstaining:
Provided that where the attendance of such
person is required for giving evidence at a place
not more than twenty-five kilometres distance
from the prison, the officer in charge of the prison
shall not so abstain for the reason mentioned in
clause (b).
305. Prisoner to be brought to Court in
custody
Subject to the provisions of section 304,
the officer in charge of the prison shall, upon
delivery of an order made under sub-section (1)
of section 302 and duly countersigned, where
necessary, under sub-section (2) thereof, cause
the person named in the order to be taken to the
Court in which his attendance is required, so as to
be present there at the time mentioned in the
order, and shall cause him to be kept in custody
in or near the Court until he has been examined
or until the Court authorises him to be taken back
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to the prison in which he was confined or
detained.”
12. Section 187(2) of BNSS, 2023, which provides for dealing
with the accused who is produced before the Magistrate by the
police, reads as under:
“187(2) The Judicial Magistrate to whom an
accused person is forwarded under this section
may, irrespective of whether he has or has no
jurisdiction to try the case, after taking into
consideration the status of the accused person as
to whether he is not released on bail or his bail
has not been cancelled, authorise, from time to
time, the detention of the accused in such
custody as such Magistrate thinks fit, for a term
not exceeding fifteen days in the whole, or in
parts, at any time during the initial forty days or
sixty days out of detention period of sixty days or
ninety days, as the case may be, as provided in
sub-section (3), and if he has no jurisdiction to
try the case or commit it for trial, and considers
further detention unnecessary, he may order the
accused to be forwarded to a Judicial Magistrate
having such jurisdiction.”
13. The Hon’ble Supreme Court in the case of DHANRAJ
ASWANI VS AMAR S.MULCHANDANI & OTHERS – 2024 INSC
669, has considered the question of maintainability of an
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anticipatory bail application under Section 438 of Cr.PC by an
accused who is in custody in a case and apprehends arrest in a
different case registered against him, and in the said case, the
Hon’ble Supreme Court has held that in the event the accused
is not formally arrested and remanded to custody in the second
case, even if he is in custody in the first case, he can maintain
an application under Section 438 of Cr.PC seeking anticipatory
bail. Therefore, it is apparent that if an accused is in custody in
one case who is not formally arrested and remanded to custody
in the second case, it has to be considered that he is not in
custody in the second case and in the event of he being
released on bail in the first case, he cannot be detained in jail
merely for the reason that a second case is registered against
him, but he has to be released from jail in the event he
complies the conditions of bail granted to him in the first case.
14. In the case of M.SHASHIDHARA @ SHASHI & ANOTHER
VS STATE OF KARNATAKA – Crl.P.No.1396/2022 disposed of on
11.03.2022, the coordinate bench of this Court has held that
custody of an accused who was produced under a body warrant
before a court, but not remanded to custody in the said case
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and has been granted bail in the original case in which he was
remanded to judicial custody, would be illegal and he cannot be
detained in custody after he was released on bail in the original
case in the event he complies with the bail conditions.
15. The Hon’ble Supreme Court in Dhanraj Aswani’s case
supra, has considered the two ways of arrest in respect of an
accused who is already in custody. In paragraph 41 of the said
judgment, the Hon’ble Supreme Court has observed as under:
“41. It was submitted on behalf of the appellant
that a person already in judicial custody in relation to an
offence, cannot have a “reason to believe” that he may
be arrested on the accusation of having committed a
different offence. However, we do not find any merit in
the aforesaid submission. There are two ways by which
a person, who is already in custody, may be arrested –
a. First, no sooner than he is released from
custody in connection with the first case,
the police officer can arrest and take him
into custody in relation to a different case;
andb. Secondly, even before he is set free from
the custody in the first case, the police
officer investigating the other offence can
formally arrest him and thereafter obtain a
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Prisoner Transit Warrant (“P.T. Warrant”)
under Section 267 of the CrPC from the
jurisdictional magistrate for the other
offence, and thereafter, on production
before the magistrate, pray for remand;
OR
Instead of effecting formal arrest, the
investigating officer can make an
application before the jurisdictional
magistrate seeking a P.T. Warrant for the
production of the accused from prison. If
the conditions required under 267 of the
CrPC are satisfied, the jurisdictional
magistrate shall issue a P.T. Warrant for
the production of the accused in court.
When the accused is so produced before
the court in pursuance of the P.T. Warrant,
the investigating officer will be at liberty to
make a request for remanding the accused,
either to police custody or judicial custody,
as provided in Section 167(1) of the CrPC.
At that time, the jurisdictional magistrate
shall consider the request of the
investigating officer, peruse the case diary
and the representation of the accused and
then, pass an appropriate order, either
remanding the accused or declining to
remand the accused. [See: State v. K.N.
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Nehru reported in 2011 SCC OnLine Mad
1984]”
16. In Dhanraj Aswani’s case supra, the Hon’ble Supreme
Court has observed that a lawful arrest can be made even
without actually seizing or touching the body. Actions or words
which successfully bring to the notice of the accused that he is
under a compulsion and thereafter cause him to submit to such
compulsion will also be sufficient to constitute arrest. In
paragraphs 51 & 52 of the said judgment, the Hon’ble Supreme
Court has observed as under:
“51. The aforesaid decision fortifies the view that
the actual seizing or touching of the body of the person
to be arrested is not necessary in a case where the
arrester by word brings to the notice of the accused that
he is under compulsion and thereafter the accused
submits to that compulsion. This is in conformity with
the modality of the arrest contemplated under Section
46 of the CrPC wherein also it is provided that the
submission of a person to be arrested to the custody of
the arrester by word or action can amount to an arrest.
The essence of the decision in Alderson (supra) is that
there must be an actual seizing or touching, and in the
absence of that, it must be brought to the notice of the
person to be arrested that he is under compulsion, and
as a result of such notice, the said person should submit
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to that compulsion, and then only the arrest is
consummated.
52. As pointed out in the preceding paragraphs, a
police officer can formally arrest a person in relation to
an offence while he is already in custody in a different
offence. However, such formal arrest doesn’t bring the
accused in the custody of the police officer as the
accused continues to remain in the custody of the
Magistrate who remanded him to judicial custody in the
first offence. Once such formal arrest has been made,
the police officer has to make an application under
Section 267 of the CrPC before the Jurisdictional
Magistrate for the issuance of a P.T. Warrant without
delay. If, based on the requirements prescribed under
Section 267 of the CrPC, a P.T. Warrant is issued by the
jurisdictional Magistrate, then the accused has to be
produced before such Magistrate on the date and time
mentioned in the warrant, subject to Sections 268 and
269 respectively of the CrPC. Upon production before
the jurisdictional Magistrate, the accused can be
remanded to police or judicial custody or be enlarged on
bail, if applied for and allowed. The only reason why we
have delineated the procedure followed in cases where a
person already in custody is required to be arrested in
relation to a different offence is to negate the reasoning
of the Rajasthan, Delhi and Allahabad High Courts that
once in custody, it is not possible to re-arrest a person
in relation to a different offence. When a person in
custody is confronted with a P.T. Warrant obtained in
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relation to a different offence, such a person has no
choice but to submit to the custody of the police officer
who has obtained the P.T. Warrant. Thus, in such a
scenario, although there is no confinement to custody by
touch, yet there is submission to the custody by the
accused based on the action of the police officer in
showing the P.T. Warrant to the accused. Thereafter, on
production of the accused before the jurisdictional
Magistrate, like in the case of arrest of a free person
who is not in custody, the accused can either be
remanded to police or judicial custody, or he may be
enlarged on bail and sent back to the custody in the first
offence. A number of decisions have held that although
Section 267 of the CrPC cannot be invoked to enable
production of the accused before the investigating
agency, yet it can undoubtedly be invoked to require
production of the accused before the jurisdictional
Magistrate, who can thereafter remand him to the
custody of the investigating agency. Such an
interpretation of the provision would give true effect to
the words “other proceedings” as they appear in the text
of Section 267 of the CrPC, which cannot be construed
to exclude proceedings at the stage of investigation.
[See: C. Natesan v. State of Tamil Nadu and Others,
1998 SCC OnLine Mad 931; Ranjeet Singh v. State of
Uttar Pradesh, 1995 Cri LJ 3505; State of Maharashtra
v. Yadav Kohachade, 2000 Cri LJ 959].”
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17. In the case of CENTRAL BUREAU OF INVESTIGATION,
SPECIAL INVESTIGATION CELL-I, NEW DELHI VS ANUPAM
J.KULKARNI – (1992)3 SCC 141, the Hon’ble Supreme Court
has observed that even if accused 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.
18. In Dhanraj Aswani’s case supra, the Hon’ble Supreme
Court having referred to Anupam J.Kulkarni’s case supra, in
paragraph 40, has observed as under:
“40. The second fallacy in the reasoning of the
High Court is that there can be no arrest of an accused
in relation to a different offence while he is already in
custody in relation to some offence. Although there is no
specific provision in the CrPC which provides for the
arrest of an accused in relation to an offence while he is
already in judicial custody in a different offence, yet this
Court explained in Central Bureau of Investigation,
Special Investigation Cell-I, New Delhi v. Anupam J.
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Kulkarni reported in (1992) 3 SCC 141 that even if an
accused is in judicial custody in connection with the
investigation of an earlier case, the investigating agency
can formally arrest him in connection with his
involvement in a different case and associate him with
the investigation of that other case. In other words, this
Court clarified that even when a person is in judicial
custody, he can be shown as arrested in respect of any
number of other crimes registered elsewhere in the
country. Reliance was placed by this Court on the
decision of Punjab & Haryana High Court in S. Harsimran
Singh v. State of Punjab reported in 1984 Cri LJ 253
wherein it was held that there is no inflexible bar under
the law against the re-arrest of a person who is already
in judicial custody in relation to a different offence. The
High Court held that judicial custody could be converted
into police custody by an order of the Magistrate under
Section 167(2) of the CrPC for the purpose of
investigating the other offence. The relevant paragraphs
of Anupam J. Kulkarni (supra) are extracted
hereinbelow:
“11. A question may then arise whether a
person arrested in respect of an offence alleged to
have been committed by him during an
occurrence can be detained again in police
custody in respect of another offence committed
by him in the same case and which fact comes to
light after the expiry of the period of first fifteen
days of his arrest. The learned Additional
Solicitor-General submitted that as a result of the
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investigation carried on and the evidence
collected by the police the arrested accused may
be found to be involved in more serious offences
than the one for which he was originally arrested
and that in such a case there is no reason as to
why the accused who is in magisterial custody
should not be turned over to police custody at a
subsequent stage of investigation when the
information discloses his complicity in more
serious offences. We are unable to agree. In one
occurrence it may so happen that the accused
might have committed several offences and the
police may arrest him in connection with one or
two offences on the basis of the available
information and obtain police custody. If during
the investigation his complicity in more serious
offences during the same occurrence is disclosed
that does not authorise the police to ask for police
custody for a further period after the expiry of the
first fifteen days. If that is permitted then the
police can go on adding some offence or the other
of a serious nature at various stages and seek
further detention in police custody repeatedly,
this would defeat the very object underlying
Section 167. However, we must clarify that this
limitation shall not apply to a different occurrence
in which complicity of the arrested accused is
disclosed. That would be a different transaction
and if an accused is in judicial custody in
connection with one case and to enable the police
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to complete their investigation of the other case
they can require his detention in police custody
for the purpose of associating him with the
investigation of the other case. In such a situation
he must be formally arrested in connection with
other case and then obtain the order of the
Magistrate for detention in police custody. The
learned Additional Solicitor-General however
strongly relied on some of the observations made
by Hardy, J. in Mehar Chand case [(1969) 5 DLT
179] extracted above in support of his contention
namely that an arrested accused who is in judicial
custody can be turned over to police custody even
after the expiry of first fifteen days at a
subsequent stage of the investigation in the same
case if the information discloses his complicity in
more serious offences. We are unable to agree
that the mere fact that some more offences
alleged to have been committed by the arrested
accused in the same case are discovered in the
same case would by itself render it to be a
different case. All these offences including the so-
called serious offences discovered at a later stage
arise out of the same transaction in connection
with which the accused was arrested. Therefore
there is a marked difference between the two
situations. The occurrences constituting two
different transactions give rise to two different
cases and the exercise of power under Sections
167(1) and (2) should be in consonance with the
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object underlying the said provision in respect of
each of those occurrences which constitute two
different cases. Investigation in one specific case
cannot be the same as in the other. Arrest and
detention in custody in the context of Sections
167(1) and (2) of the Code has to be truly viewed
with regard to the investigation of that specific
case in which the accused person has been taken
into custody. In S. Harsimran Singh v. State of
Punjab [1984 Cri LJ 253 : ILR (1984) 2 P&H 139]
a Division Bench of the Punjab and Haryana High
Court considered the question whether the limit of
police custody exceeding fifteen days as
prescribed by Section 167(2) is applicable only to
a single case or is attracted to a series of different
cases requiring investigation against the same
accused and held thus: (p. 257, para 10-A)“We see no inflexible bar against a person
in custody with regard to the investigation
of a particular offence being either re-
arrested for the purpose of the
investigation of an altogether different
offence. To put it in other words, there is
no insurmountable hurdle in the conversion
of judicial custody into police custody by an
order of the Magistrate under Section
167(2) of the Code for investigating
another offence. Therefore, a rearrest or
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second arrest in a different case is not
necessarily beyond the ken of law.”
This view of the Division Bench of the Punjab and
Haryana High Court appears to be practicable and
also conforms to Section 167. We may, however,
like to make it explicit that such re-arrest or
second arrest and seeking police custody after the
expiry of the period of first fifteen days should be
with regard to the investigation of a different case
other than the specific one in respect of which the
accused is already in custody. A literal
construction of Section 167(2) to the effect that a
fresh remand for police custody of a person
already in judicial custody during investigation of
a specific case cannot under any circumstances be
issued, would seriously hamper the very
investigation of the other case the importance of
which needs no special emphasis. The procedural
law is meant to further the ends of justice and not
to frustrate the same. It is an accepted rule that
an interpretation which furthers the ends of
justice should be preferred. It is true that the
police custody is not the be-all and end-all of the
whole investigation but yet it is one of its primary
requisites particularly in the investigation of
serious and heinous crimes. The legislature also
noticed this and permitted limited police custody.
The period of first fifteen days should naturally
apply in respect of the investigation of that
specific case for which the accused is held in
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custody. But such custody cannot further held to
be a bar for invoking a fresh remand to such
custody like police custody in respect of an
altogether different case involving the same
accused.
xxx xxx xxx
13. … There cannot be any detention in the
police custody after the expiry of first
fifteen days even in a case where some
more offences either serious or otherwise
committed by him in the same transaction
come to light at a later stage. But this bar
does not apply if the same arrested
accused is involved in a different case
arising out of a different transaction. 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. …”
(Emphasis supplied)
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19. From the aforesaid, this Court has arrived at the following
conclusions:-
1. An accused who is in custody in earlier case
can be arrested formally by police in a different case and
orders can be sought from the jurisdictional court to issue
body warrant/PT warrant under Section 302 of BNSS,
2023.
2. When body warrant is issued by the
jurisdictional court, the accused has to be produced
before the said court on the date and time mentioned in
the warrant, subject to Sections 303 & 304 of BNSS,
2023.
3. The court before which accused is produced,
acting under Section 187(2) of BNSS, 2023, can either
remand the said accused to police custody or judicial
custody. The said court also can release him on bail if
applied for and allowed.
4. After expiry of the police custody, when such
an accused is produced before the jurisdictional court
with a requisition to remand him to judicial custody in the
said case, the court if satisfied can formally remand such
accused to judicial custody in the said case before
returning the said accused to custody in the original case
from which he is produced under body warrant before the
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said court. If an accused who is produced under body
warrant in the second case is remanded to custody in the
said case, the only remedy available to him is to seek
regular bail.
5. If the court before which an accused is
produced under body warrant refuses to remand him to
judicial custody, and on the other hand remands him to
judicial custody in the original case and in the event he is
enlarged on bail in the original case, after compliance of
conditions of bail order, he has to be released from jail
and he cannot be detained merely for the reason that
body warrant was issued against him in the second case.
6. If the accused who is produced under body
warrant in the second case is remanded to judicial
custody in the said case, even if the said accused is
enlarged on bail in the original case, the jail authorities
cannot release him from jail without any release order in
the second case from the competent court.
20. In the present case, petitioners have been enlarged on
bail in S.C.No.33/2025 which arises from Crime No.248/2024
registered by Tavarekere Police Station. In S.C.No.9/2025
arising from Crime No.129/2024, at any stage petitioners were
not arrested and remanded to judicial custody. Therefore, their
regular bail application in S.C.No.9/2025 was not at all
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maintainable. As on the date of their rejection of regular bail
application by the jurisdictional Sessions Court in
S.C.No.9/2025 arising from Crime No.129/2024 registered by
Madanayakanahalli Police Station, the petitioners who were
granted bail in S.C.No.33/2025 were already released from jail.
However, the same was not brought to the notice of the
learned Sessions Judge in S.C.No.9/2025 and it appears that
under the said circumstances, regular bail application filed by
the petitioners in S.C.No.9/2025 was rejected on merits though
it was actually not maintainable. Having realized the mistake
committed, the learned Sessions Judge thereafter on the very
same date, issued non-bailable warrant to the accused in
S.C.No.9/2025 and subsequently the presence of accused nos.1
& 2 was secured and they were produced before the court on
24.05.2025 and on the said date, they were remanded to
judicial custody.
21. Since the petitioners are now in custody in S.C.No.9/2025
pursuant to the execution of non-bailable warrant issued
against them by the jurisdictional court, it cannot be said that
their custody is illegal. The regular bail application filed on
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behalf of the petitioners after they were remanded to judicial
custody in S.C.No.9/2025 has been dismissed as withdrawn.
Therefore, without approaching the Trial Court, the petitioners
could not have approached this Court under Section 439 of
Cr.PC. Accordingly, this petition is dismissed reserving liberty to
the petitioners to file fresh bail application before the Trial
Court in S.C.No.9/2025. If such bail application is filed, the
same shall be considered on merits and disposed of, as
expeditiously as possible.
22. The Registry is directed to take necessary steps to
circulate this order to all the judicial officers in the District
Judiciary, and also to the judicial academy.
Sd/-
(S VISHWAJITH SHETTY)
JUDGE
KK