Back
SUPREME COURT OF INDIA
DHANANJAYA Y. CHANDRACHUD, CJI., J.B. PARDIWALA, MANOJ MISRA, JJ.
Dhanraj Aswani - Appellant
Versus
Amar S. Mulchandani & Anr. - Respondents
Criminal Appeal No. 2501 Of 2024 (arising out of SLP (Crl.) No. 6942 of 2024)
Decided On : 09-09-2024
(A) Criminal Procedure Code, 1973 – Section 438 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 482] – Anticipatory bail application – Maintainability – An individual is presumed to be innocent till he is found guilty by the court – Purpose behind incorporating Section 438 in Cr.P.C. was to recognise the importance of personal liberty and freedom in a free and democratic country – No useful purpose would be served by depriving accused of exercising his statutory right to seek anticipatory bail till his release from custody in first offence – If accused is not allowed to obtain pre-arrest bail in relation to a different offence, while being in custody in one offence, then he may get arrested by police immediately upon his release in first case, even before he gets opportunity to approach competent court and file application for grant of anticipatory bail in relation to said particular offence – Court, on its own, should not try to read any other restriction as regards exercise of its power to consider plea for grant of anticipatory bail – Court should not read any blanket restriction nor should it insist for some inflexible guidelines as that would amount to judicial legislation. (Paras 25, 36 and 39)
(B) Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 436 [Criminal Procedure Code, 1973 – Section 482] – Anticipatory bail application – Maintainability – It would be incorrect to hold that a person, while in custody, cannot have a reason to believe that he may be arrested in relation to a different offence – As a logical extension of this, it can also be said that when procedural law does not preclude investigating agency from arresting a person in relation to a different offence while he is already under custody in some previous offence, accused too cannot be precluded of his statutory right to apply for anticipatory bail only on the ground that he is in custody in relation to a different offence – Accused could be arrested either when he is free or when he is in custody in some offence – Similarly, arrest can be made by a police officer either without a warrant or with a warrant issued by a court – There is no restriction in text of Section 438 or scheme of Cr.P.C. precluding a person from seeking anticipatory bail in relation to an offence while being in custody in relation to another offence – Mere formal arrest (on-paper arrest) would not extinguish right of accused to apply for anticipatory bail. (Paras 42, 44, 53, 54 and 60)
(C) Criminal Procedure Code, 1973 – Section 267[Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 302] – Power to require attendance of prisoners – If accused is granted anticipatory bail in relation to an offence, while being in custody in a different offence, then it shall no longer be open to police officer in first case to apply under Section 267 of Cr.P.C. for production of accused before jurisdictional Magistrate for the purpose of remanding him to police or judicial custody – However, it shall be open to jurisdictional Magistrate to require production of accused under Section 267(1) for any other purpose mentioned under said Section except for the purpose of remanding him to police or judicial custody. (Para 55)
Facts of the case:
Whether application for anticipatory bail under Section 438 of Code of Criminal Procedure, 1973 is maintainable at instance of accused while he is already in judicial custody in connection with his involvement in a different case?”
Findings of Court:
High Court of Judicature at Bombay shall now proceed to decide anticipatory bail application filed by respondent accused on its own merits.
Result : Reference answered.
Based on the provided legal document, the key points regarding the maintainability of anticipatory bail applications when the accused is already in custody in relation to a different offence are as follows:
No statutory restriction: There is no explicit provision in the Criminal Procedure Code (Cr.P.C.) or other statutes that prohibits an accused who is already in custody for one offence from applying for anticipatory bail in connection with a different offence. The scheme of the law allows such applications to be considered independently (!) (!) .
Right to apply for anticipatory bail: An accused in custody in relation to one offence retains the right to seek anticipatory bail for another offence, provided he has a "reason to believe" that he may be arrested in relation to that other offence. Custody in one case does not eliminate the apprehension of arrest in a different case (!) (!) .
Effect of arrest versus formal arrest: Actual physical arrest involves confinement of the person, but submission to custody by words or actions can also constitute arrest. Formal arrest does not necessarily mean the accused is in police custody; he may remain in judicial custody. Therefore, an accused can still have a "reason to believe" of arrest in relation to a different offence, even if he is already in judicial custody in another case (!) (!) (!) .
Procedural mechanisms: An accused can be formally arrested in relation to a different offence while in custody in another case, either after release from the first case or through formal arrest procedures such as obtaining a prisoner transit warrant. Such procedures do not bar the right to apply for anticipatory bail (!) (!) (!) .
Investigation and remand rights: The investigating agency can seek remand of the accused while he is in custody for a different offence, provided no anticipatory bail order has been passed in relation to the subsequent offence. Once anticipatory bail is granted, the agency cannot seek remand in relation to that offence, but can do so in relation to the original offence (!) (!) .
Legal and constitutional principles: The right to seek anticipatory bail is rooted in the principles of personal liberty and the presumption of innocence until proven guilty. The law emphasizes that this right should not be arbitrarily restricted, and each application should be considered on its merits, without blanket restrictions based solely on custody status in another case (!) (!) .
Judicial discretion: Courts have a broad and discretionary power to decide anticipatory bail applications, which must be exercised judiciously, considering the facts and circumstances of each case. Restrictions on this power are only explicitly provided in certain statutes or specific provisions, and in the absence of such restrictions, courts are free to entertain such applications (!) (!) .
Implication of statutory restrictions: Only specific statutory provisions or amendments explicitly restrict anticipatory bail in certain offences (e.g., offences punishable under particular sections). Otherwise, the law presumes that an accused can seek anticipatory bail even if he is in custody for another offence (!) (!) .
Conclusion: The law supports the view that an anticipatory bail application filed by an accused already in custody for a different offence is maintainable. Such applications should be decided independently and on their merits, and custody in one case does not bar the exercise of the right to seek anticipatory bail in relation to another offence (!) (!) .
In summary, the legal framework and judicial principles affirm that custody for one offence does not preclude an accused from applying for anticipatory bail in connection with a different offence. Each case must be considered on its individual facts, and the right to seek anticipatory bail remains intact unless explicitly restricted by law.
JUDGMENT
(J.B. Pardiwala, J.) :
For the convenience of exposition, this judgment is divided into the following parts:
| A. SUBMISSIONS ON BEHALF OF THE APPELLANT |
| B. SUBMISSIONS ON BEHALF OF THE RESPONDENT NO. 1 (ORIGINAL ACCUSED) |
| C. VIEWS OF DIFFERENT HIGH COURTS ON THE ISSUE IN QUESTION |
| D. ANALYSIS i. Evolution of the concept of anticipatory bail ii. Whether a person, while in custody for a particular offence, can have a “reason to believe” that he may be arrested in relation to some other non-bailable offence? iii. Illustrative Examples |
| E. CONCLUSION |
1. A short question of general public importance on which there is great divergence of judicial opinion that falls for the consideration of this Court is as under:
“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?”
2. This appeal arises from the judgment and order dated 31.10.2023 passed by the High Court of Judicature at Bombay in Anticipatory Bail Application No. 2801 of 2023 by which the High Court overruled the objection raised by the appellant herein (original complainant) as regards the maintainability of the anticipatory bail application filed by respondent no. 1 (original accused) in connection with CR No. 806 of 2019 registered with Pimpri Police Station for the offences punishable under Sections 406, 409, 420, 465, 467, 468, 471 respectively read with Section 34 of the Indian Penal Code (for short, “IPC”) and thereby took the view that although respondent no.1 herein may already be in custody in connection with ECIR No. 10 of 2021, yet he would be entitled to pray for anticipatory bail in connection with a different case.
3. It appears from the materials on record that respondent no. 1 herein came to be arrested in connection with ECIR No. 10 of 2021.While in custody, he apprehended arrest in connection with CR No. 806 of 2019 registered against him at the instance of the appellant herein. In such circumstances, he prayed for anticipatory bail before the High Court. The appellant herein intervened in the proceedings of said anticipatory bail application and raised an objection that as respondent no. 1 herein is already in custody in connection with ECIR No. 10 of 2021, he cannot pray for anticipatory bail in connection with CR No. 806 of 2019. The objection raised by the appellant herein in his capacity as the complainant came to be overruled and the High Court proceeded to hold that although respondent no. 1 herein may be in custody in one case, yet the same would not preclude him from seeking pre-arrest bail in connection with a different case. Since the objection was overruled, the appellant is now before this Court.
A. SUBMISSIONS ON BEHALF OF THE APPELLANT
4. Mr. Sidharth Luthra, the learned Senior counsel appearing for the appellant canvassed the following submissions:
i. The High Court committed a serious error in taking the view that although a person might be in custody after his arrest in one case, yet such a person can apply for the grant of pre-arrest bail under Section 438 of the CrPC in connection with a different case.
ii. The essential part of arrest is placing the corpus (body of the person) in custody of the police authorities. The natural corollary, therefore, is that a person who is already in custody cannot have reasons to believe that he would be arrested as he already stands arrested. The pre-condition to invoke Section 438 CrPC is that the accused should have a reason to believe that he “may be arrested”. If the accused is already in custody, then he can have no reason to believe that he “may be arrested”.
iii. The salutary provision of Section 438 of the CrPC was enshrined with a view to see that the liberty of any individual concerned is not put in jeopardy on frivolous grounds at the instance of un
Anticipatory bail application – There is no restriction in text of Section 438 or scheme of Cr.P.C. precluding a person from seeking anticipatory bail in relation to an offence while being in custody....
Anticipatory bail applications are maintainable even if the petitioner is already in custody for another case, affirming the protection of personal liberty under Article 21.
Sec.438 of Cr.P.C reads as Direction for grant of bail to person apprehending arrest.
A person in custody for one offense is not precluded from seeking anticipatory bail for another offense under Sec. 438 of the Code of Criminal Procedure, as the statutory provisions do not impose suc....
Point of Law : Bail - Power under Section 438 CrPC is an extraordinary power and the same has to be exercised sparingly. The privilege of the pre arrest bail should be granted only in exceptional cas....
Anticipatory bail is not maintainable upon issuance of summons for a non-bailable offence unless there is reasonable apprehension of police arrest without warrant.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
