An Accused Can Seek Anticipatory Bail In Relation To An Offence Even While He Is In Custody In A Different Offence: Supreme Court
The Supreme Court held that an accused is entitled to seek anticipatory bail in connection with an offence even while he/she is in custody in a different offence.
The Court held thus in a criminal appeal filed against the judgment of Bombay High Court by which it overruled the objection raised by the complainant regarding the maintainability of the anticipatory bail.
The three-Judge Bench comprising CJI D.Y. Chandrachud, Justice J.B. Pardiwala, and Justice Manoj Misra observed, “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 in 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 Section 438 of the CrPC is the one prescribed under sub-section (4) of Section 438 of the CrPC, and in other statutes like the Act, 1989, etc.”
The Bench enunciated that there is no express or implied restriction in the Criminal Procedure Code (CrPC) or in any other statute that prohibits the Court of Session 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.
Senior Advocate Sidharth Luthra appeared for the appellant while Senior Advocate Siddharth Dave appeared for the respondents.
In this case, a short question of general public importance arose for consideration before the Court: “Whether an application for anticipatory bail under Section 438 of the CrPC is maintainable at the instance of an accused while he is already in judicial custody in connection with his involvement in a different case?”
A case was registered against the accused for the offences punishable under Sections 406, 409, 420, 465, 467, 468, and 471 respectively read with Section 34 of the Indian Penal Code (IPC). The respondent (original accused) was arrested and while in custody, he apprehended his arrest in connection with the crime registered against him at the instance of the appellant. In such circumstances, he prayed for anticipatory bail before the High Court. The appellant intervened in the proceedings of the anticipatory bail application and raised an objection that as respondent is already in custody in connection with ECIR No. 10 of 2021, he cannot pray for anticipatory bail in connection with CR No. 806 of 2019. The objection raised by the appellant in his capacity as the complainant was overruled and the High Court proceeded to hold that although the respondent may be in custody in one case, yet the same would not preclude him from seeking pre-arrest bail in connection with a different case. Since the objection was overruled, the appellant was before the Apex Court.
The Supreme Court in the above context of the case noted, “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 either under Section 437 or Section 439 of the CrPC, as the case may be. This is evident from para 39 of Gurbaksh Singh Sibbia (supra).”
The Court said that, while a person already in custody in connection with a particular offence apprehends arrest in a different offence, then, the subsequent offence is a separate offence for all practical purposes.
“This 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”, it added.
Furthermore, the Court observed that the investigating agency, if it deems necessary for the purpose of interrogation/investigation in an offence, can seek remand of the accused whilst he is in custody in connection with a previous offence so long as no order granting anticipatory bail has been passed in relation to the subsequent offence.
“However, if an order granting anticipatory bail in relation to the subsequent offence 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 police remand is passed before the accused is able to obtain anticipatory bail, it would thereafter not be open to the accused to seek anticipatory bail and the only option available to him would be to seek regular bail”, it clarified.
The Court noted that under Section 438 of the CrPC, the pre-condition for a person to apply for pre-arrest bail is a “reason to believe that he may be arrested on an accusation of having committed a non-bailable offence” and therefore, the only pre-condition for exercising the said right is the apprehension of the accused that he is likely to be arrested.
“In view of the discussion in the preceding paragraphs, custody in one case does not have the effect of taking away the apprehension of arrest in a different case. … If the interpretation, as sought to be put forward by Mr. Luthra is to be accepted, the same would not only defeat the right of a person to apply for pre-arrest bail under Section 438 of the CrPC but may also lead to absurd situations in its practical application”, it also said.
Accordingly, the Apex Court dismissed the appeal and directed the High Court to decide the anticipatory bail of the respondent accused on its own merits.
Cause Title- Dhanraj Aswani v. Amar S. Mulchandani & Anr. (Neutral Citation: 2024 INSC 669)
Appearance:
Appellant: Senior Advocate Sidharth Luthra, Advocates Prashant S. Kenjale, Amol Nirmalkumar Suryawanshi, Srishty Pandey, Ashutosh Chaturvedi, Gayatri Virmani, and Shubham Gavande.
Respondents: Senior Advocate Siddharth Dave, AOR Siddhant Sharma, Advocates Shantanu Phanse, SS Bedekar, Prastut Dalvi, and Vidhi Thaker.
