Brief Facts
- FIR lodged by the complainant/appellant, while the respondent was already in custody for another case.
- Apprehending arrest, the accused applied to the Bombay High Court for anticipatory bail. Application was opposed by the Complainant on the ground of maintainability as the person was already in jail for another case, he should not be allowed to apply for anticipatory bail in this new case.
- However, the High Court rejected the objections and held the Anticipatory bail application to be maintainable.
- Aggrieved by rejection of preliminary objections, the Complainant approached the Apex Court.
Issues
- Whether an application for anticipatory bail under section 438 of the Code of Criminal Procedure, 1973, is maintainable at the instance of an accused while he is already in judicial custody in connection with his involvement in a different case?
- Whether a person, while in custody for a particular offence, can have a “reason to believe” that he may be arrested in relation to some other non-bailable offence?
Held
- The present appeal is dismissed, and the high court shall proceed to decide the anticipatory bail application on its merits.
- Court held that an accused is entitled to seek anticipatory bail in connection with an offence so long as he is not arrested to that offence and such applications will have to be decided by the competent courts on their own merits.
- There is no express or implied restriction in the Cr.P.C. or in any other statute that prohibits the Court of Session or the High Court from entertaining and deciding an anticipatory bail application to a different offence, while the applicant is in custody to a different offence.
- When a person already in custody in connection with a particular offence apprehends arrest in a different offense, 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 to the subsequent offence are independently protected.
- Right of an accused to protect his personal liberty within the contours of art.21 of the Constitution of India with the aid of the provision of anticipatory bail as enshrined under S. 438 of the Cr.P.C. cannot be defeated or thwarted without a valid procedure established by law.
- The only precondition for exercising the said right is the apprehension of the accused that he is likely to be arrested.
- The court also held that a person, while in custody to an offence, can have “reason to believe” that he may be arrested to a different cognizable offence.
Relevant Paras
- 53, 60(i)(ii)(iii)(vi)