Arrested in One Case? You Can Still Apply for Anticipatory Bail in Another: Supreme Court

By Legal Wires 5 Minutes Read

On September 9, 2024, the Supreme Court of India rendered a significant judgment clarifying the legal position regarding anticipatory bail for an accused already in custody for a separate offence. The bench, comprising Chief Justice of India, Justice JB Pardiwala, and Justice Manoj Misra, addressed a critical legal issue: whether an individual arrested in one case can still seek anticipatory bail in connection with a different case. The decision underscored the protection of personal liberty, asserting that custody in one case does not negate the right to seek anticipatory bail for another case under Section 438 of the Criminal Procedure Code (CrPC).

Key Points of the Judgment:

Eligibility for Anticipatory Bail
The Supreme Court held that an accused is entitled to seek anticipatory bail in connection with another offence, as long as they have not been arrested in that particular case. Once arrested for that offence, the accused can only apply for regular bail under Sections 437/439 CrPC.
No Restriction in CrPC for Seeking Anticipatory Bail
The Court stated that there is no explicit or implied restriction in the CrPC or any other statute prohibiting a Sessions Court or High Court from deciding on an anticipatory bail application for a different offence, even when the applicant is in custody for another offence.
Separate Offences Considered Independently
When an accused is in custody for one offence but fears arrest in another, the subsequent offence is regarded as a separate legal issue. The rights of the accused and the investigative agency regarding the new offence are independently protected.
Power of Investigation and Remand
The Court noted that the investigating agency can seek remand for the accused in connection with the second offence while the accused is in custody for the first offence. However, if the accused obtains anticipatory bail for the subsequent offence, the agency can no longer seek remand in that case.

Clarification on Section 438 CrPC:

Precondition for Anticipatory Bail
The Supreme Court clarified that under Section 438 CrPC, the only precondition for applying for anticipatory bail is the accused’s apprehension of arrest. Custody in one case does not remove the apprehension of arrest for a different case, ensuring that the accused’s right to liberty is preserved.
Preservation of Personal Liberty
Senior Advocate Siddharth Dave, representing the petitioner, emphasized that the right to personal liberty under Section 438 CrPC should not be thwarted without a valid legal procedure. The Court agreed, emphasizing that personal liberty is paramount, and the ability to seek anticipatory bail is an important safeguard.

Arguments of the Respondents

Senior Advocate Siddharth Luthra, representing the respondent, argued that the power of arrest under Section 41 CrPC should not be used to arrest someone already in custody for a different offence. He contended that allowing anticipatory bail in such cases would create legal inconsistencies. However, the Court rejected this argument, stating that denying the right to anticipatory bail in a subsequent case would lead to absurd outcomes.
In rejecting the respondent’s contention, the Court remarked, “The interpretation advanced by the respondent would defeat the right to apply for anticipatory bail and may result in absurd situations.” The Court concluded that the statutory protection provided under Section 438 CrPC should not be curtailed without proper legal justification.

Click to read: Dhanraj Aswani v. Amar S. Mulchandani and Anr. Criminal Appeal No : 2501 of 2024 (arising out of SLP (Crl.) No. 6942 of 2024