Anticipatory Bail Plea Not Maintainable If Accused Is Already In Custody In Another Criminal Case: Allahabad High Court

The bench of Justice Samit Gopal concluded thus while relying upon the Rajasthan High Court's ruling in the case of Sunil Kallani vs. State of Rajasthan Through Public Prosecutor 2021 SCC OnLine Raj 1654.

"This Court in view of the law laid down in the case of Sunil Kallani (supra) upholds the preliminary objection taken by the learned counsels for the C.B.I. and holds that since the applicant is in custody in connection with another case, the present anticipatory bail application under Section 438 Cr.P.C. would not lie and would not be maintainable. The same is accordingly dismissed," the Court observed.

The Court was essentially dealing with the plea of one Rajesh Kumar Sharma seeking anticipatory bail in connection with a 2022 cheating and forgery case wherein he has been booked under the Prevention of Corruption Act.

At the outset, the CBI raised a preliminary objection that as the accused has already been arrested in September 2022 in another case and therefore, in view of the Rajasthan HC's judgment in the case of Sunil Kallani (supra), the anticipatory plea isn't maintainable.

On the other hand, the counsel for the applicant argued that although the applicant is in jail in another case in Chandigarh, the same would not be a bar for the court to grant anticipatory bail to him as he apprehends that he would be taken into custody in the present case also.

In view of the arguments of the counsels, the Court went ahead to decide the preliminary objection as raised by counsel for the C.B.I.

The Court took into account the Rajasthan HC's observations in the case of Sunil Kallani (supra), wherein it was held that the anticipatory bail application of a person, already in custody in connection to a criminal case, will not be maintainable with respect to another criminal case registered for the commission of similar or different offences.

In that case, the Rajasthan HC had also remarked that it would be nothing but a travesty of justice in allowing anticipatory bail to such an accused who is already in custody.

Analysing Section 46 CrPC read with Section 438 of CrPC, the Court observed,

"...the essential part of arrest is placing the corpus, body of the person in custody of the police authorities whether of a police station or before him or in a concerned jail. The natural corollary is therefore that a person who is already in custody cannot have reasons to believe that he shall be arrested as he stands already arrested. In view thereof, the precondition of bail application to be moved under Section 438 Cr.P.C. i.e. "reasons to believe that he may be arrested" do not survive since a person is already arrested in another case and is in custody whether before the police or in jail."

Case title - Rajesh Kumar Sharma v. C.B.I. [Criminal Misc Anticipatory Bail Application U/S 438 CR.P.C. No. - 4633 of 2022]

Case Citation: 2022 LiveLaw (AB) 525

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