Can Accused Who Is Already Arrested In One Case Seek Anticipatory Bail In Another Case? Supreme Court Reserves Judgment

The Supreme Court on Wednesday (May 8) reserved judgment on the issue whether anticipatory bail could be granted in one case to a person who is already under custody in another case.  

The bench of CJI DY Chandrachud and Justices JB Pardiwala and Manoj Misra heard the matter. The question of law arose in a case where the FIR of the first offence against the accused was quashed but then the report was revived when he was taken in custody for another case. The accused thereafter filed for anticipatory bail. 

Senior Advocate Mr Sidharth Luthra appearing for the petitioner spotlighted that when a person is accused under multiple cases, the common practice of the investigating authorities is to seek continuous remands and elongate the custody of the accused. 

"There is a genuine problem that when you are in custody in multiple cases, this is a norm that is being done...and when you are in custody in the first case...the police seek a remand in that case (second one) and then the remand goes on, multiple remands."

The CJI said that if the Court answered the present question in the negative, then it could lead to the officials misusing the powers of remand to put the accused in a never-ending loop of arrest. 

" That is the worry actually, that is why we thought we must be very clear. Otherwise, if we say that Section 438 CrPC will not apply, then it is very simple for the police to keep on seeking remand. The person will then just be virtually left in an indeterminate loop." 

On the last hearing, the CJI expressed a prima facie view that anticipatory bail cannot be denied on the sole reason that the accused was in custody in another case.

Mr Luthra highlighted that a cause for seeking anticipatory bail only arises when there is a genuine apprehension of arrest. Such a genuine apprehension of arrest arises only when the ingredients of the arrest are sought to be made out as prescribed under S. 41 of the CrPC. 

As per S. 41 CrPC, police officers are empowered to arrest individuals without a warrant under specific circumstances, mainly when the officer has reasonable suspicion that the person has committed a cognizable offence or is about to commit one, or when there is a need to prevent the person from causing harm to themselves or others or to prevent the destruction of evidence. While S. 41 A of the CrPC provides guidelines to be followed by police officers when the offence complained of is punishable by imprisonment of up to seven years. Under the said provision, the police officers are required to issue a notice instead of arresting. The notice must include the particulars of the offence alleged, the time and place of appearance, and the consequences of failure to comply. 

It was the contention of Mr Luthra that the landmark decision of the Supreme Court in Arnesh Kumar v. State of Bihar strictly laid down the law on complete adherence to provisions of S. 41 and 41A CrPC in all cases. The implementation of Arnesh Kumar, said the Senior Counsel, is now seen in the decision of Satendra Kumar Antil  v. CBI .  In the said decision, the Court held that any violation or non-compliance of S. 41 and 41A CrPC would make grounds for grant of bail to the accused. 

The main contention of Mr Luthra was that the power under Section 41 cannot be utilised to arrest a person who is already in custody. 

However, the CJI interjected to observe that under provisions of S. 41(b)(ii)(b) - proper investigation of the offence- could still be exercised to get custody of a person arrested in another offence under the purpose of proper investigation. 

To which Mr Luthra stressed that it was essential for the court to interpret what was exactly meant by the term 'proper investigation of the offence' .

"Therefore the question is what do we mean by proper investigation, that has to be clarified. Otherwise, there are two parts to it. One is S. 438 CrPC and the other is S. 41 CrPC." 

S. 41 CrPC Is Both An Empowerment & Restriction - CJI Analyses 

During the hearing, the CJI observed that the provision of S. 41 CrPC has a rather balancing effect. On the one hand, it empowers the investigating officials to arrest without a warrant upon discretion, but on the other hand it also checks for misuse by specifying and laying conditions under which such a power can be exercised. 

Mr Luthra then interjected to point out that when an arrest cannot be made under S. 41 CrPC, can there be an apprehension to arrest altogether? 

To which the CJI explained that S. 41A of the law restricts when a police officer can arrest someone, stating they cannot just arrest at will. However, this section doesn't address a person's fear or worry that they might still be arrested without proper basis. S. 438 CrPC should be considered from the accused person's perspective, recognizing their concerns about being arrested, regardless of the legal constraints placed on the arresting officer's power.

Senior Advocate Mr Sidharth Dave representing the accused, in his counter essentially weaved out the difference of the legislative intent between S. 438 and S. 41, 41A of the CrPC. He stressed that while on one hand S. 438 has to be read from the apprehension stemming from the mind of the accused, S. 41 refers to the discretionary thinking of the police officer and not the accused. 

Referring to the phrase ' the police has a reason to believe under S. 41(1)(b)(i)', he explained that "surely an accused cannot start to think whether an investigating officer is under 41 going to arrest me or not arrest and whether my reason is unfounded on that basis" 

Thus he explained that the connection drawn by Mr Luthra between anticipatory bail and grounds for arrest under S. 41 and 41A of CrPC lacked a rational basis.  While S. 41 empowered the investigating officer, it has no relation to the subjective and personal apprehension that arises in the mind of the an accused person. The emphasis of the legislature is on the terms 'for that person to have a reason to believe he may be arrested on an accusation' under S. 438 CrPC , which shows that the law intended to provide a remedy from the standpoint of an accused and not the police officials. 

"41 is an empowering provision for the investing officer by which he is empowered to arrest without a warrant. This(438) is a remedy for the accused, that(S.41) is an empowerment for the police officer. They are in two different fields operating, therefore the legislature chooses the words 'for that person to have a reason to believe he may be arrested on an accusation " 

In his concluding argument, Mr Dave stressed that the reliance placed upon the decisions of Arnesh Kumar and Satendra Antil by Mr Luthra is rather misplaced since these two judgements only speak on the need to restrict the powers of the officials in misusing their discretion and granting bail where there is non-compliance. 

" Your Lordships have curtailed that power of the police to arrest. It is not taking away the remedy or the right which is being argued. Right, I have inherited. I may get I may not get it."  

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