{"id":330485,"date":"2024-09-10T13:00:04","date_gmt":"2024-09-10T07:30:04","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=330485"},"modified":"2024-09-12T13:00:28","modified_gmt":"2024-09-12T07:30:28","slug":"accused-in-custody-can-apply-for-anticipatory-bail-in-different-case-supreme-court","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2024\/09\/10\/accused-in-custody-can-apply-for-anticipatory-bail-in-different-case-supreme-court\/","title":{"rendered":"Accused in custody can apply for anticipatory bail in connection with a different case: Supreme Court"},"content":{"rendered":"
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Supreme Court:<\/span> In an appeal against the Judgment passed by the Bombay High Court, wherein the Court concerning the maintainability of anticipatory bail, viewed that although the accused may already be in custody in connection with a money laundering case, yet he would be entitled to pray for anticipatory bail in connection with a different case, the three-Judge Bench of Dr. D.Y. Chandrachud, CJI, J.B. Pardiwala*<\/span>and Manoj Misra, JJ. held that an application for anticipatory bail under Section 438<\/a> of the Code of Criminal Procedure, 1973<\/a> (\u2018CrPC\u2019) is maintainable at the instance of an accused while he is already in judicial custody in connection with his involvement in a different case.<\/p>\n

Issue:<\/p>\n

Whether an application for anticipatory bail under Section 438<\/a> of the Code of Criminal Procedure, 1973<\/a> (\u2018CrPC\u2019) maintainable at the instance of an accused while he is already in judicial custody in connection with his involvement in a different case?<\/p>\n

Analysis and Decision:<\/p>\n

The Court examined the evolution of the concept of anticipatory bail.<\/p>\n

After taking note of Sushila Aggarwal<\/span> v. State (NCT of Delhi)<\/span>, (2020) 5 SCC 1<\/a> the Court clarified that that the court, on its own, should not try to read any other restriction as regards the exercise of its power to consider the plea for grant of anticipatory bail. Wherever parliament intends or desires to exclude or restrict the power of courts, it does so in categorical terms. This is evident from the plain reading of sub-section (4) of Section 438 of the CrPC.<\/p>\n

Whether a person, while in custody for a particular offence, can have a \u201creason to believe\u201d that he may be arrested in relation to some other non-bailable offence?<\/p>\n

The Court referred to the decision of Rajasthan High Court in Sunil Kallani<\/span> v. State of Rajasthan<\/span>, 2021 SCC OnLine Raj 1654<\/a> wherein it was held that once a person is taken in custody in relation to an offence, it is not possible thereafter to arrest him in relation to a different offence as one of the essential conditions for arrest is placing the body of the accused in custody of the police authorities by means of actual touch or confinement. As there cannot be any actual touch or confinement while a person is in custody, he cannot have a \u201creason to believe\u201d that he may be arrested in relation to a different offence.<\/p>\n

The Court said that there are two fundamental fallacies in the reasoning adopted by the Rajasthan High Court. First, the High Court failed to consider the possibility of arrest of the person in custody in relation to a different offence immediately after he is set free from custody in the first offence. In such a scenario, if it is held that the application seeking anticipatory bail in relation to an offence, filed during the period when the applicant is in custody in relation to a different offence, would not be maintainable, then it would amount to precluding the applicant from availing a statutory remedy which he is otherwise entitled to and which he can avail as soon as he is released from custody in the first offence.<\/p>\n

Thus, the Court said that in cases where the accused has a \u201creason to believe\u201d that he may be arrested in relation to an offence different from the one in which he is in custody immediately upon his release, the view taken by the Rajasthan High Court, if allowed to stand, would deprive him of his statutory right of seeking anticipatory bail because it is quite possible that before such a person is able to exercise the aforesaid right, he may be arrested.<\/p>\n

The Court opined that 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.<\/p>\n

The Court said that the second fallacy in the reasoning of the High Court is that there can be no arrest of an accused in relation to a different offence while he is already in custody in relation to some offence.<\/p>\n

The Court referred to CBI<\/span> v. Anupam J. Kulkarni<\/span>, (1992) 3 SCC 141<\/a> , wherein it was held that even if an accused is in judicial custody in connection with the investigation of an earlier case, the investigating agency can formally arrest him in connection with his involvement in a different case and associate him with the investigation of that other case.<\/p>\n

The Court laid down two ways by which a person, who is already in custody, may be arrested:<\/p>\n