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Synopsis

The Supreme Court has on September 9, 2024, held that an accused, even while in custody for a different offence, retains the right to seek anticipatory bail in connection with a separate case.

A bench comprising Chief Justice of India D Y Chandrachud and Justices J B Pardiwala and Manoj Misra stated that neither the Criminal Procedure Code (CrPC) nor any other statute imposes any express or implied restriction preventing a Court of Session or a High Court from hearing an anticipatory bail plea, even if the applicant is already in custody for an unrelated offence.

The bench said that 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, it said.

"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 bench said.

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 Scheduled Castes and Scheduled Tribes (Preventive of Atrocities) Act, 1989, etc, the court added.

"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," the bench said.

The court pointed out 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. 

"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," the bench said.

Court said the right of an accused to protect his personal liberty within the contours of Article 21 of the Constitution with the aid of the provision of anticipatory bail as enshrined under Section 438 of the CrPC cannot be defeated or thwarted without a valid procedure established by law.

Court said the procedure should also pass the test of fairness, reasonableness and manifest non-arbitrariness on the anvil of Article 14 of the Constitution.

"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”. Therefore, the only pre-condition for exercising the said right is the apprehension of the accused that he is likely to be arrested. Therefore, the custody in one case does not have the effect of taking away the apprehension of arrest in a different case, the bench said.

In its judgment, the court examined 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.

The appeal arose from the judgment of October 31, 2023, by the Bombay High Court by which the High Court overruled the objection raised by the appellant Dhanraj Aswani, original complainant, as regards the maintainability of the anticipatory bail application filed by original accused, Amar S Mulchandani in connection with a case registered with Pimpri Police Station for the offences punishable under Sections 406, 409, 420, 465, 467, 468, 471 respectively read with Section 34 of the IPC.

The High took the view that although respondent no 1 may already be in custody in connection with an Enforcement Directorate case of 2021, yet he would be entitled to pray for anticipatory bail in connection with a different case.

The High Court proceeded to hold that custody in one case would not preclude the respondent from seeking pre-arrest bail in connection with a different case. 

In its decision, the High Court held the anticipatory bail plea by the respondent as maintainable and allowed the Bombay High Court to decide the application on its own merits.

Senior advocate Sidharth Luthra, appearing for the appellant-complainant, contended that a person who is already in custody cannot have reasons to believe that he would be arrested as he already stands arrested. The pre-condition to invoke Section 438 CrPC is that the accused should have a reason to believe that he “may be arrested”. If the accused is already in custody, then he can have no reason to believe that he “may be arrested”, he said.

Senior advocate Siddharth Dave, appearing for the respondent-accused said that the arrest of an accused in one case cannot foreclose his right to apply for pre-arrest bail in a different case, since there is no such stipulation in the language of Section 438 of the CrPC. 

Court noted that there are divergent opinions expressed by different High Courts of the country. The Rajasthan, Delhi and Allahabad High Courts have taken the view that an anticipatory bail application would not be maintainable if the accused is already arrested and is in custody in connection with some offence. On the other hand, the Bombay and Orissa High Courts have taken the view that even if the accused is in custody in connection with one case, anticipatory bail application at his instance in connection with a different case is maintainable. 

The bench felt if the interpretation, as sought to be put forward by 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.

Court noted Section 438 introduced in the CrPC indicated that the legislature felt that it was imperative to evolve a device by which an alleged accused is not compelled to face ignominy and disgrace at the instance of influential people who try to implicate their rivals in false cases. 

"The purpose behind incorporating Section 438 in the CrPC was to recognise the importance of personal liberty and freedom in a free and democratic country. A careful reading of this section reveals that the legislature was keen to ensure respect for the personal liberty of individuals by pressing in service the age-old principle that an individual is presumed to be innocent till he is found guilty by the court," the bench said.

The bench said, "In our opinion, no useful purpose would be served by depriving the accused of exercising his statutory right to seek anticipatory bail till his release from custody in the first offence."

Court found force in the submission of the respondent that if the accused is not allowed to obtain a pre-arrest bail in relation to a different offence, while being in custody in one offence, then he may get arrested by the police immediately upon his release in the first case, even before he gets the opportunity to approach the competent court and file an application for the grant of anticipatory bail in relation to the said particular offence. 

"Each arrest a person faces compounds their humiliation and ignominy. We say so because each subsequent arrest underscores a continued or escalating involvement in legal troubles that can erode the dignity of the person and their public standing. The initial arrest itself often brings a wave of social stigma and personal distress, as the individual struggles with the implications of their legal predicament. When a subsequent arrest occurs, it intensifies this emotional and social burden, amplifying the perception of their criminality and reinforcing negative judgments from society," the bench said.

"Subsequent arrest in relation to different offences, while the individual is in custody in a particular offence, further alienates the individual from their community and adversely affects their personal integrity. For this reason, it is incorrect to assume that subsequent arrests diminish the level of humiliation. On the contrary, each additional arrest exacerbates the person’s shame making the cumulative impact of such legal entanglements increasingly devastating," the bench added.

Case Title: Dhanraj Aswani Vs Amar S Mulchandani & Anr