Whether anticipatory bail can be granted when the accused is arrested in another case.

Sep 10, 2024

2 min read

LANDMARK JUDGEMENT FOR ANTICIPATORY BAIL: -

DHANRAJ ASWANI v/s AMAR S. MULCHANDANI AND ANRs. 2024 SC

Bench – Chief Justice of India, Justice JB Pardiwala and Manoj Mishra.

Issue – whether anticipatory bail can be granted when the accused is arrested in another case.

DECISION

• The Supreme Court held that an accused already in custody in connection with one case can apply for anticipatory bail in connection with another case.

• “Custody in one case does not have the effect of taking away the apprehension of arrest in another case,”

OBSERVATIONS

1. Once he is arrested, the only remedy available to him is to apply for anticipatory bail under S. 437/439 Cr.PC.

2. There id no explicit or implied restriction in the Cr.PC. or in any other statute that prohibits the the Sessions Court or high Court from enterning and deciding an anticipatory bail application in relation to an offence while the applicant is in custody in relation to a different offence.

3. The only restriction on the power of the court to grant anticipatory bail under S. 438 Cr.PC. is one prescribed under sub – section (4) of Section 438 of Cr.PC. and in other statutes like SC/ST Prevention of Atrocities Act etc.

4. While a person already in custody in a particular offence apprehends arrest in a different offence, then the subsequent offence is a separate offence for all practical purposes.

5. Then it 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.

6. Thus, if an anticipatory bail is obtained by the accused for subsequent offence being in custody for the former offence, it shall no longer be open to the investigating agency to seek remand of the accused in relation to the subsequent offence.

• Similarly, if an order of remand is passed before the accused is able to obtain an order of anticipatory bail, if would thereafter not be open to the accused to seek anticipatory bail and the only option available to him is to seek regular bail.