Accused in Custody can apply for Anticipatory bail when apprehending arrest in a different case
The Hon’ble Supreme Court of India recently in Dhanraj Aswani v. Amar S. Mulchandani & Anr. (Criminal Appeal No. 2501 of 2024) dealt with the issue of maintainability of an application for anticipatory bail moved by a person apprehending arrest in an offence but is already in judicial custody in relation to a different offence. The Hon’ble Supreme Court analyzed a plethora of judgments passed by High Courts which were of diverging opinions.
In the present case, the Appellant had approached the Apex Court being aggrieved by the order of Bombay High Court wherein it was of the view that even if accused is in custody in connection of one offence, he would be entitled to pray for the relief of anticipatory bail for a subsequent offence. High Court was also of the view that the accused being in custody for an offence does not preclude him from seeking pre-arrest bail in connection with a different case.
It was argued by counsel appearing for the Appellant that a person while in custody cannot have a reason to believe that he may be arrested in relation to another offence. Hon’ble Supreme Court rejected this contention observing that when procedural law does not preclude an investigation agency from arresting a person in custody for some other offence, it also does not preclude the accused from applying for anticipatory bail.
While considering the view of various High Courts, The Hon’ble Supreme Court examined the case of Sunil Kallani v. State of Rajasthan[1], a judgment passed by Rajasthan High Court, wherein it was of the view that an application for anticipatory bail would not be maintainable at the instance of a person who is already arrested and is in custody in relation to a different case. This finding was based on the reasoning that an essential of arrest is to actually touch or confine the body to the custody of a police officer. As there cannot be any touch or confinement, while accused is in custody, he cannot have a reason to believe he may be arrested in relation to a different offence. Hon’ble Supreme Court observed that High Court failed to consider that there is a possibility that the accused may get arrested immediately once he is set free from custody.
Hon’ble Supreme Court relying on CBI v. Anupam J. Kulkarni[2], observed that when a person is in custody, he can be shown as arrested in any number of other crimes and the investigation agency can formally arrest him and associate him with the investigation of that other case.
Reliance was placed by the Apex Court on the landmark judgment of Gurbaksh Singh Sibbia v. State of Punjab[3], which emphasized that the applicant must show “reason to believe” that he may be arrested for a non-bailable offence. After considering the judgment of Gurbaksh Singh Sibbia (supra), Hon’ble Supreme Court was of the view 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.
It also held that there is no provision in CrPC precluding the High Court or the Sessions Court from deciding an application for anticipatory bail while the applicant is already in custody for a different offence. The recourse available to the investigation agency would be to seek remand of accused while he is in custody pertaining to the previous offence so long as no order granting anticipatory bail has been passed in relation to subsequent offence.
The accused has a right to approach the courts to protect his liberty and this right cannot be circumvented merely because the accused is already in custody for a different offence. Custody in one case does not have the effect of taking away the apprehension of arrest for a different offence. Since the offences are separate, rights of the accused as well as the investigation agency are to be protected independently.
Author: Yashvi Aswani is a Senior Associate with Pratap & Co. with a passion for defending women's rights and providing effective legal representation.
[1] 2021 SCC OnLine Raj 1654.
[2] (1992) 3 SCC 141
[3] (1980) 2 SCC 565