Accused Can Seek Anticipatory Bail for Separate Offenses Even While in Custody.

The Supreme Court of India addressed the question of whether a person already in judicial custody for one offense can seek anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 (CrPC) for a different, unrelated offense. Resolving conflicting views among High Courts, the Supreme Court ruled that an accused retains the right to apply for anticipatory bail in a separate case even while in custody for another offense, as long as they are not yet arrested in the subsequent case.

Brief of Case:
The Appellant, Dhanraj Aswani, filed a complaint against the Respondent, Amar S. Mulchandani, leading to the Respondent's arrest in connection with a different case vide Enforcement Case Information Report (ECIR No. 10 of 2021). While in custody, the Respondent apprehended arrest in the Appellant's case (CR No. 806 of 2019) and filed an anticipatory bail application with the Bombay High Court. The High Court, overruling the Appellant’s objection, held that being in custody in one case did not preclude the Respondent from seeking anticipatory bail in a separate case. The Appellant appealed this decision to the Supreme Court.

The key legal question at the heart of this appeal was:

“Whether an application for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 (for short, “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 Supreme Court meticulously analyzed Section 438 of the CrPC, relevant judgments, and the principles of personal liberty. The Court acknowledged the divergence of opinions among High Courts, noting that while Rajasthan, Delhi, and Allahabad High Courts found such applications non-maintainable, Bombay and Orissa High Courts held otherwise.

The Court refuted the argument that an accused already in custody cannot be "arrested" again, highlighting the possibility of arrest upon release from the first case or even while in custody through procedures like Prisoner Transit Warrants (P.T. Warrants) under Section 267 of the CrPC. Citing its earlier judgment in Central Bureau of Investigation, Special Investigation Cell-I, New Delhi v. Anupam J. Kulkarni, the Court reiterated that a person in judicial custody could still be formally arrested for a different offense.

The Court emphasized the distinct nature of each arrest and the compounding humiliation faced by an accused with each subsequent arrest, stating: "Each arrest a person faces compounds their humiliation and ignominy. […] When a subsequent arrest occurs, it intensifies this emotional and social burden, amplifying the perception of their criminality and reinforcing negative judgments from society." Rejecting the Appellant's contention that anticipatory bail is meant to prevent humiliation of arrest which someone in custody would not face, the Court 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.”

The Supreme Court clarified that the only statutory restrictions on anticipatory bail are explicitly mentioned in Section 438(4) of the CrPC and specific statutes like the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. It emphasized: "There is no express or implied restriction in the 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."

The Court further highlighted that once an accused secures anticipatory bail for a separate case while in custody for another, the police cannot seek their production for remand in the subsequent case, respecting the protective cover provided by the anticipatory bail. However, the investigating agency retains the right to seek permission from the Magistrate to interrogate the accused regarding the subsequent offense. The Apex Court concluded by upholding that "66. On the other hand, in the present case, we have decided the issue of maintainability of an anticipatory bail application filed at the instance of an accused who is already in judicial custody in a different offence and have reached the conclusion that such an application is maintainable under the scheme of the CrPC. However, it is clarified that each of such applications will have to be decided by the competent courts on their own merits." and has directed the Bombay High Court to proceed and decide on merits "68. The High Court of Judicature at Bombay shall now proceed to decide the anticipatory bail application filed by the respondent accused on its own merits."

Coram: Chief Justice of India Dr. Dhananjaya Y. Chandrachud, Justice J.B. Pardiwala, & Justice Manoj Misra,
Between: Dhanraj Aswani vs Amar S. Mulchandani & Anr
Date of Judgment: 09-09-2024