New Delhi: The Supreme Court on Monday held that an accused, who is lodged in custody in a case, is entitled to seek anticipatory bail in another matter as long as he is not arrested in relation to that alleged offence.
The apex court said there was no express or implied restriction in the statute that prohibits the sessions court or high courts from deciding an anticipatory bail application in a case, while the applicant was in custody in connection with a different offence.
A bench headed by Chief Justice D Y Chandrachud said the purpose behind incorporating section 438 in the Code of Criminal Procedure (CrPC), which deals with direction for grant of bail to a person apprehending arrest, was to recognise the importance of “personal liberty and freedom in a free and democratic country”.
“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,” said the bench, also comprising Justices J B Pardiwala and Manoj Misra.
“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,” it said.
The top court, in its verdict, noted it appeared that there were divergent opinions expressed by different high courts on the issue.
It said the high courts of Rajasthan, Delhi and Allahabad have taken the view that an anticipatory bail application would not be maintainable if the accused was already arrested and was in custody in connection with some offence.
The bench said the high courts of Bombay and Orissa have taken the view that even if accused was in custody in connection with a case, anticipatory bail application at his instance in connection with a different case was maintainable.
“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,” it said.
Referring to the arguments advanced before it, the bench said it find force in the submission that if the accused was 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.
“This practical shortcoming in the approach taken by the Rajasthan High Court is prone to exploitation by investigating agencies for the purpose of putting the personal liberty of the accused in peril,” the bench noted.
The apex court said 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,” it said.
The bench said an investigating agency, if it deems necessary for the purpose of interrogation/investigation in an offence, can seek remand of the accused while 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.
It said 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 him to seek pre-arrest bail and the only option available to him would be to seek regular bail.
The bench agreed with the submission advanced before it that 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 cannot be defeated or thwarted without a valid procedure established by the law.
“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,” it said.
The bench said custody in one case does not have the effect of taking away the apprehension of arrest in a different case.
“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,” it said.
The bench noted each additional arrest exacerbates the person’s shame making the cumulative impact of such legal entanglements increasingly devastating.
It was dealing with an appeal arising out of the October 2023 verdict of the Bombay High Court which had said an accused, who was in judicial custody in a case, would be entitled to pray for anticipatory bail in a different case.
While dismissing the appeal, it said top court registry shall forward copy of its judgment to all the high courts across the country.
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