MAINTAINABILITY OF AN APPLICATION FOR ANTICIPATORY BAIL BY A PERSON ALREADY IN CUSTODY
Author: Utkarsh Srivastava
Advocate-on-Record, Supreme Court of India
- Introduction of Anticipatory Bail in the Indian Judicial System
The concept of anticipatory bail was introduced in the India Judicial System for the first time in the form of Section 438 during the codification of Code of Criminal Procedure 1973.
Under the Code of Criminal Procedure 1898 the concept of anticipatory bail was absent. It did not have any provision analogous to Section 438 of Code of Criminal Procedure 1973.
The purpose of incorporating Section 438 was to protect an alleged accused from ignominy and disgrace of arrest. Its purpose was to protect the personal liberty of an individual. It is based on the principle that an individual is presumed innocent till found guilty.
Hon’ble Supreme Court of India in Siddharam Satlingappa Mhetre v. State of Maharasthra & Ors., (2011) 1 SCC 694 reiterated the importance of personal liberty. It was observed that all humans are born with some unalienable rights like life, liberty, and pursuit of happiness. No other right can be enjoyed without the presence of right to life and liberty. Life bereft of liberty is without honour and dignity. Therefore, liberty is called the very quintessence of a civilised existence.
- Most important requirement for seeking anticipatory bail
In Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565, a Constitution Bench of Hon’ble Supreme Court of India observed that legislation has conferred a wide discretion on the High Courts and Sessions Court to grant anticipatory bail because it is difficult to enumerate the conditions under which anticipatory bail should be given or not. Hon’ble Supreme Court remarked that an accused who enjoys freedom is in a much better position to look after his case and defend himself than if he were in custody. It laid down certain principles of law to grant anticipatory bail, which were followed in Siddharam Satlingappa Mhetre Case (Supra) and then again reiterated with certain modifications in Suhsila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1 wherein the following principles were enumerated:
- An application for anticipatory bail should be based on concrete facts, irrespective of the fact as to whether FIR has been filed or not. Likelihood of arrest found on reasonable belief must be shown.
- Court ought to be guided by considerations like nature and gravity of offence, role of the applicant.
From the above, it is thus ample clear that a person who has reason to believe that he can be arrested irrespective of the fact that FIR has been filed or not, can file an anticipatory bail application.
- Anticipatory Bail by a person already in Custody
However, a question arose as to whether a person who is already in custody for an offence can file for anticipatory bail because he has reasonable belief that he may be arrested for a different offence.
In Sunil Kallani v. State of Rajasthan, 2021 SCC OnLine Raj 1654, Hon’ble Rajasthan High Court observed that once a person is in custody in relation to an offence, he cannot be arrested because one of the essential conditions for arrest is placing the body of the accused in the custody of police by means of actual touch or confinement. So, if a person is already in custody, he cannot be again confined, therefore he cannot have reason to apprehend arrest.
But there may be situations where a person may get arrested immediately upon his release even before he has opportunity to go and file a n application for anticipatory bail.
Hon’ble Supreme Court of India Central Bureau of Investigation, Special Investigation Cell-I, New Delhi v. Anupam J. Kulkarni, (1992) 3 SCC 141 held that even if an accused is in judicial custody in connection with the investigation of an earlier case, the investigating agency can formally arrest him in difference case.
Considering the above situations, Hon’ble Supreme Court recently in judgment in Dhanraj Aswani v. Amar S. Michandani & Anr. 2024 INSC 669 noted that, although arrest involves actual touch or confinement of the body, however, arrest can also be affected without actual touch if the person sought to be arrest submits to the custody by words or action, for example, by way of Prisoner Transit Warrant, where police can formally arrest a person already in custody by filing Prisoner Transit Warrant before the Magistrate and make a request for remand of the accused.
It was thus held that,
“42. As arrest in both the aforesaid circumstances is permissible in law, 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 doesn’t preclude the investigating agency from arresting a person in relation to a different offence while he is already under custody in some previous offence, the 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.”
It was concluded that,
“60. (i) An accused is entitled to seek anticipatory bail in connection with an offence so long as he is not arrested in relation to that offence. Once he is arrested, the only remedy available to him is to apply for regular bail either under Section 437 or Section 439 of the CrPC, as the case may be. This is evident from para 39 of Gurbaksh Singh Sibbia (supra).
(ii) There is no express or implied restriction in the CrPC or in any other statute that prohibits the Court of Session or the High Court from entertaining and deciding an anticipatory bail application in relation to an offence, while the applicant is in custody in relation to a different offence. No restriction can be read into Section 438 of the CrPC to preclude an accused from applying for anticipatory bail in relation to an offence while he is in custody in a different offence, as that would be against the purport of the provision and the intent of the legislature. The only restriction on the power of the court to grant anticipatory bail under Section 438 of the CrPC is the one prescribed under sub-section (4) of Section 438 of the CrPC, and in other statutes like the Act, 1989, etc.
(iii) While a person already in custody in connection with a particular offence apprehends arrest in a different offence, then, the subsequent offence is a separate offence for all practical purposes. This 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.…”
Therefore, a person already in custody for an offence can have reason to believe that he may be arrested in relation to a different offence, and he may then also file an application seeking anticipatory bail in that offence because the subsequent offence is a separate offence, and all the rights conferred by the statute are independently protected in regards to that subsequent offence separately from the previous one.
You can explore our other articles here: Articles By Saral Legal Solutions
You can also check out our page on criminal cases for more information.