When Accused Is Enlarged On Bail, Police Custody Can't Be Granted As Long As Bail Order Continues To Operate: Supreme Court

The appeal before the Apex Court was filed against the order of the Telangana High Court in a Criminal Petition.

Referring to the judgment in Satyajit Ballubhai Desai v. State of Gujarat (2014), the Division Bench of Justice Vikram Nath and Justice Sandeep Mehta stated, “The principle enunciated in the aforesaid decision makes it abundantly clear that when an accused is enlarged on bail, police custody cannot be granted so long as the order of bail continues to operate. In the present case, the accused-appellants stand enlarged on bail by effect of the order dated 17th March, 2025 passed by the learned Magistrate, which has not been challenged before any forum and consequently the grant of police custody in the face of an existing bail order would amount to indirect cancellation of bail."

 AOR P. Mohith Rao represented the Appellant while AOR Devina Sehgal represented the Respondent.

Factual Background

An FIR was registered against unknown persons under Section 67 of the Information Technology Act, 2000 and Sections 352 and 353(2) of the Bhartiya Nyaya Sanhita, 2023 (Corresponding Sections 504 and 505 (2) of the Indian Penal Code, 1860) based on a complaint filed by one S. Kailash. After being arrested, the appellants were presented before the Addl. Chief Judicial Magistrate remanded him to judicial custody. The Inspector of Police, Cyber Crimes Police Station, moved an application before the Magistrate seeking police custody of the accused-appellants for a period of five days. The said application was rejected. However, by a separate order, the Magistrate enlarged the accused-appellants on bail.

Being aggrieved by the order of the Magistrate rejecting the request for the grant of police custody, the respondent, the State of Telangana, through the Inspector of Police, preferred a revision petition before the Sessions Judge, who allowed the same and directed that the accused-appellants be remanded to police custody. However, the said order was subsequently modified, altering the period of custody. Aggrieved by the order of the Sessions Judge, the accused-appellants assailed the same before the High Court by way of a criminal petition, but the same came to be dismissed. The aforesaid order of the High Court rejecting the criminal petition formed the subject matter of challenge in the appeal.

Reasoning

The Bench noted that the Single Judge of the High Court while rejecting the Criminal Petition filed by the appellant took note of the provisions of Section 187 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (Corresponding Section 167 of the Code of Criminal Procedure) which provides that police custody for a term not exceeding 15 days in the whole or in parts, may be granted by the Magistrate during the initial forty days or sixty days, as the case may be, out of the total detention period of sixty days or ninety days.

The Bench explained that since none of the offences were punishable with death, imprisonment for life or imprisonment for a term of ten years or more, the statutory period applicable for the grant of police custody would be forty days. “Needless to say, the discretion whether or not to grant police custody remand is vested exclusively with the Magistrate and once the Magistrate exercises such discretion accepting or declining the prayer for police custody, by assigning reasons, such order should ordinarily not be interfered with by the revisional forum unless gross perversity is shown in the order of the Magistrate”, it added.

The Bench noted that the Sessions Judge, while accepting the revision, had completely overlooked the order passed by the Magistrate and went on to record that further recoveries were to be made from the accused appellants and police custody remand was essential as their detailed confessional statements had to be recorded. “We find both the reasons to be unacceptable and perverse on the face of record in view of the fact that the order of the learned Magistrate specifically refers to the recoveries of the subject devices used for posting the offensive messages having been effected and extensive interrogation having been carried out from the accused-appellants”, it added.

“It is a settled position of law that where the investigating agency seeks police remand of an accused who has already been enlarged on bail, the proper and legally permissible course is to first seek cancellation of bail in accordance with law and only thereafter apply for police custody. The scheme of criminal procedure does not countenance the grant of police remand of an accused who continues to enjoy the protection of bail, as such a course would effectively defeat and nullify the order granting bail", the order read.

The Bench also explained that granting police custody for a period of three days would require the accused-appellants to be taken back into custody and curtailing their liberty for that period of 3 days, which would, in effect, be tantamount to cancellation of bail in an indirect manner, without adherence to the settled legal parameters governing cancellation of bail.

Thus, allowing the appeal, the Bench set aside the impugned orders of the High Court and the Sessions Judge.

Cause Title: Pogadadabnda Revathi v. The State of Telangana (Neutral Citation: 2026 INSC 75)

Appearance

Appellant: AOR P. Mohith Rao, Advocates Aruna Gupta, Akshitha, J. Venkat Sai, Eugene S Philomene

Respondent: AOR Devina Sehgal, Advocate Yatharth Kansal

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