Advocates:
['PANKAJ GUPTA', '', 'ARYAN PAREEK', 'SWADEEP SINGH HORA PRAWAL MISHRA', 'P P SS MEHTA', '', 'MANISH PARIHAR', 'AJAY KUMAR JAIN', 'VIVEK RAJ SINGH BAJWA']

HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Criminal Misc. Bail Application No. 9155/2019

Sunil Kallani S/o Hari Kishan Kallani, R/o Kallani Bhawan,

Dalmiya Dharmshala Road, Siliguri, District Darjeeling, West

Bengal.

----Accused-Petitioner

Versus

State of Rajasthan Through Public Prosecutor

----Respondent

For Petitioner(s)

:

Mr. Swadeep Singh Hora

Mr. Prawal Mishra

Mr. Aaryan Pareek

For Respondent(s)

:

Mr. S.S. Mehla, P.P.

Mr. V.R. Bajwa with Mr. Manish Parihar

for complainant

HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

Order

RESERVED ON : 05/10/2021

PRONOUNCED ON : 25/10/2021

REPORTABLE

1.

While hearing this anticipatory bail application, the question

of law arose whether an anticipatory bail application would be

maintainable by an accused who is already arrested and is in

judicial custody in relation to another FIR registered against him

for the offences mentioned therein.

2.

Learned counsel for the petitioner and learned counsel for

the complainant as well as learned Public Prosecutor had advanced

their submissions.

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[CRLMB-9155/2019]

3.

It would therefore be apposite to first note down the relevant

provisions of Code of Criminal Procedure (“Cr.P.C.”). Sections 41,

46, 81, 105 and Section 438 Cr.P.C. are as under:

“41. When police may arrest without warrant.—(1) Any police

officer may without an order from a Magistrate and without a

warrant, arrest any person—

1(a) who commits, in the presence of a police officer, a cognizable

offence;

(b) against whom a reasonable complaint has been made, or credible

information has been received, or a reasonable suspicion exists that

he has committed a cognizable offence punishable with

imprisonment for a term which may be less than seven years or

which may extend to seven years whether with or without fine, if the

following conditions are satisfied, namely:—

(i) the police officer has reason to believe on the basis of such

complaint, information, or suspicion that such person has committed

the said offence;

(ii) the police officer is satisfied that such arrest is necessary—

(a) to prevent such person from committing any further offence; or

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidence of the offence

to disappear or tampering with such evidence in any manner; or

(d) to prevent such person from making any inducement, threat or

promise to any person acquainted with the facts of the case so as to

dissuade him from disclosing such facts to the Court or to the police

officer; or

(e) as unless such person is arrested, his presence in the Court

whenever required cannot be ensured, and the police officer shall

record while making such arrest, his reasons in writing:

Provided that a police officer shall, in all cases where the arrest of a

person is not required under the provisions of this sub-section,

record the reasons in writing for not making the arrest.

(ba) against whom credible information has been received that he

has committed a cognizable offence punishable with imprisonment

for a term which may extend to more than seven years whether with

or without fine or with death sentence and the police officer has

(3 of 21)

[CRLMB-9155/2019]

reason to believe on the basis of that information that such person

has committed the said offence;

(c) who has been proclaimed as an offender either under this Code

or by order of the State Government; or

(d) in whose possession anything is found which may reasonably be

suspected to be stolen property and who may reasonably be

suspected of having committed an offence with reference to such

thing; or

(e) who obstructs a police officer while in the execution of his duty,

or who has escaped, or attempts to escape, from lawful custody; or

(f) who is reasonably suspected of being a deserter from any of the

Armed Forces of the Union; or

(g) who has been concerned in, or against whom a reasonable

complaint has been