DHANRAJ ASWANI [APPELLANT] Vs. AMAR S. MULCHANDANI & ANR. [RESPONDENTS]
CRIMINAL APPEAL NO. 2501 OF 2024
(2JB, Dr. Dhananjaya Y. Chandrachud and J.B. Pardiwala JJ., delivered by J.B. PARDIWALA, J.)
In a landmark judgment on September 9, the Supreme Court ruled that an accused already in custody for one case can still apply for anticipatory bail in connection with a different case. This decision was delivered by a bench comprising Chief Justice of India, Justice JB Pardiwala, and Justice Manoj Misra, addressing the legal question of whether anticipatory bail can be granted while the accused is under arrest for another offence.
The key conclusion of the Court is that as long as an accused is not arrested in connection with the specific offence for which anticipatory bail is sought, they are entitled to apply for it. However, once arrested for that offence, the only available legal remedy is to apply for regular bail under Sections 437 or 439 of the Code of Criminal Procedure (CrPC).
The Court highlighted that there is no restriction, either in the CrPC or any other law, that prevents a Sessions Court or High Court from considering and deciding an anticipatory bail application while the accused is already in custody for a different offence. Imposing such a restriction would contradict the intent behind Section 438 of the CrPC, which governs anticipatory bail, and the legislature’s purpose. The only explicit limitations on granting anticipatory bail are those provided under Section 438(4) CrPC and other statutes like the SC/ST Prevention of Atrocities Act.
The Court further clarified that if a person is already in custody for one offence but fears arrest in relation to another, the second offence is treated independently. Therefore, the rights granted by the statute to both the accused and the investigating agency in relation to the subsequent offence remain fully applicable.
The investigating agency, if needed, can seek remand of the accused for interrogation or investigation of the subsequent offence while the accused is in custody for a previous offence. However, if the accused secures anticipatory bail in the second case, the agency cannot seek a remand for that offence. Conversely, if the investigating agency obtains a remand order before the accused is granted anticipatory bail, the accused cannot later apply for anticipatory bail for that particular offence and must instead seek regular bail.
The Court reiterated that the core requirement for seeking anticipatory bail under Section 438 CrPC is the accused’s reasonable apprehension of arrest. Being in custody for one offence does not eliminate the fear of arrest in a different case, thus allowing the accused to apply for anticipatory bail in the second case. The Court held that the right of the accused to protect their personal liberty, as outlined in Section 438 CrPC, cannot be nullified without following the proper legal procedure. It rejected the counterargument by Senior Advocate Siddharth Luthra, who had contended that a person already in custody cannot be re-arrested for a different case, stating that such a position would lead to absurd situations and undermine the accused’s right to seek pre-arrest bail.
