Accused In Custody Can Seek Anticipatory Bail For Another Case : Supreme Court

In a significant judgment, the Supreme Court on Monday (September 9) held that an accused already in custody in connection with one case can apply for anticipatory bail in connection with another case.

A bench comprising Chief Justice of India, Justice JB Pardiwala and Manoj Misra delivered the judgment in a case which raised the legal issue whether anticipatory bail can be granted when the accused is arrested in another case.

Conclusions

Justice JB Pardiwala read out the main conclusions of the judgment as follows :

An accused is entitled to seek anticipatory bail in connection with an offence, so long as he is not arrested in relation to that offence. Once he is arrested, the only remedy available to him is to apply for regular bail under S.437/439 CrPC.

There is no explicit or implied restriction in the CrPC or in any other statute that prohibits the Sessions Court or the High Court from entertaining and deciding an anticipatory bail application in relation to an offence while the applicant is in custody in relation to a different offence.

No restriction can be read into Section 438 of the CrPC to preclude an accused from applying for anticipatory bail in relation to an offence while he is custody in a different offence, as that would be against the purport of the provision and the intent of the legislature. The only restriction on the power of the Court to grant anticipatory bail under S.438 CrPC is one prescribed under sub-section (4) of Section 438 CrPC and in other statutes like SC/ST Prevention of Atrocities Act etc.

While a person already in custody in a particular offence apprehends arrest in a different offence, then the subsequent offence is a separate offence for all practical purposes. Then it would necessarily imply that all rights conferred by the statute on the accused as well as the investigating agency in relation to the subsequent offence are independently protected.

The investigating agency, if it deems necessary, for the purpose of interrogation/investigaiton in an offence, can seek remand of the accused while he is in custody in connection with a previous offence so long as the order granting anticipatory bail has not been passed in relation to the subsequent offence. However, if an order granting anticipatory bail is obtained by the accused, it shall no longer be open to the investigating agency to seek remand of the accused in relation to the subsequent offence. Similarly, if an order of remand is passed before the accused is able to obtain an order of anticipatory bail, it would thereafter not be open to the accused to seek anticipatory bail and the only option available to him is to seek regular bail.

Under Section 438 CrPC, the precondition for an accused to apply for pre-arrest bail is a reason to believe that he is likely to be arrested. Therefore, the only precondition for exercising the said right is the apprehension of the accused that he is likely to be arrested.

Custody in one case does not have the effect of taking away the apprehension of arrest in another case.

The Court agreed with the submission of Senior Advocate Siddharth Dave for the petitioner that the right of the accused to protect personal liberty is predicated on the provisions of Section 438 CrPC and it cannot be defeated or thwarted without a valid procedure established by law.

If the interpretation as put forth by Senior Advocate Siddharth Luthra for the respondent is accepted, the same would not only defeat the right of the person to apply for pre-arrest bail, but may also lead to absurd situations, the Court said. The main contention of Mr Luthra was that the power of arrest under Section 41 cannot be utilised to arrest a person who is already in custody.

Case Details : DHANRAJ ASWANI Versus AMAR S. MULCHANDANI AND ANR. DIARY NO. - 51276/2023

Citation : 2024 LiveLaw (SC) 675