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.

JUDGMENT :

SASHIKANTA MISHRA, J.

These applications for anticipatory bail involve the following question of law:-

Whether an application for anticipatory bail is maintainable at the instance of a person who is already in custody in connection with a different case.

This Court has extensively heard Mr. Soura Chandra Mohapatra, learned Senior counsel assisted by Mr. S. Kanungo, learned counsel for the petitioner in ABLAPL No. 11777 of 2023, Mr. Debasis Panda, learned counsel for the petitioner in ABLAPL No. 13978 of 2023 and Mr. Abhas Mohanty, learned counsel appearing for the petitioner in ABLAPL No. 13980 of 2023. This Court has also heard Mr. Sangram Keshari Mishra, learned Additional Standing counsel for the State.

2. Reference to certain relevant facts of these cases would be in order at the outset.

The petitioner in ABLAPL No. 11777 of 2023, is apprehending arrest in connection with EOW P.S. Case No. 07 of 21.02.2023, under Section 419 / 420/ 467/ 468/ 471/120 B of IPC . He is in custody since 04.09.2023 in connection with Special Crime Unit P.S. Case No. 3, dated 10.08.2023, under Sections 419 /420/ 465/ 467/468/471/ 120 B of .

The petitioner in ABLAPL No. 13978 of 2023, is apprehending arrest in connection with Kalimela P.S. Case No. 208 of 2023 under Section 20 (b)(ii)(c)/27(a)/29 of NDPS Act r/w Section 353/186/341/506 of IPC . He is already in custody since 30.08.2023 in connection with Kalimella P.S. Case No. 216/30.08.2023.

The petitioner in ABLAPL No. 13980 of 2023, is apprehending arrest in connection with Kalimella P.S. Case No. 212 of 2023 under Section 20 (b)(ii)(c)/25(1)(a)/27(a) and 29 of NDPS Act. He is in custody since 30.08.2023 in connection with Kalimella P.S. Case No. 216 dated 30.08.2023.

3. The question, whether the petitioners being already in custody albeit in connection with different cases can maintain the applications for anticipatory bail has been raised at the threshold by the Court. The parties have addressed the Court on said question making extensive arguments. Mr. S.C.Mohapatra, learned Senior counsel, leading the arguments on behalf of all the petitioners, has primarily argued that liberty being one of the most cherished objects of the Constitution as guaranteed under Article 21 of Constitution has to be protected at all costs.

Only because the petitioner is already in custody, it does not mean that he cannot seek to protect his liberty in connection with another case registered against him. Tracing the legislative history of the provision under Section 438 of Cr.P.C., Mr. Mohapatra would argue that such provision was not there in the Code of the Criminal Procedure, 1889. It was made part of Code of Criminal Procedure, 1973 with the specific intention to protect the liberty of a person, who may be subjected to undue harassment or humiliation being taken into custody unnecessarily. The provision confers wide powers on the Court of Session and the High Court to protect the liberty of a person and such power is not curtailed or limited in any manner, save and except in the manner provided in the provision itself. Mr. Mohapatra further submits that save any exceptions contained in other statutes, like SC & ST (POA) Act etc. a person accused of any other offence is entitled to seek protection from the arbitrary exercise of the power of arrest by the police.

4. Per contra, Mr S.K.