Case Note & Summary
The Supreme Court considered the question of whether an application for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 (CrPC) is maintainable when the accused is already in judicial custody in connection with a different case. The appeal arose from a Bombay High Court order that overruled the complainant's objection and held that the accused, though in custody in one case (ECIR No. 10 of 2021), could seek anticipatory bail in another case (CR No. 806 of 2019). The appellant, the complainant in the second case, challenged this order. The Court analyzed the language of Section 438 CrPC, which requires a person to have a 'reason to believe that he may be arrested'. It reasoned that a person already in custody cannot have such a belief because he is already under arrest. The Court also noted that the condition under Section 438(2)(i) requiring the accused to be available for interrogation cannot be fulfilled by a person in custody. The Court reviewed conflicting High Court views and concluded that the only remedy for a person in custody apprehending arrest in another case is to surrender and apply for regular bail. The Court allowed the appeal, set aside the High Court's order, and held that the anticipatory bail application was not maintainable.
Headnote
A) Criminal Procedure - Anticipatory Bail - Maintainability - Section 438 CrPC - Whether a person already in custody in one case can seek anticipatory bail in another case - The Supreme Court held that a person who is already in custody cannot have a 'reason to believe' that he may be arrested, as he is already under arrest. The precondition for invoking Section 438 CrPC is the apprehension of arrest, which is absent when the person is in custody. Therefore, such an application is not maintainable. (Paras 1-3, 44-65)
B) Criminal Procedure - Anticipatory Bail - Condition of Interrogation - Section 438(2)(i) CrPC - A person in custody cannot comply with the condition of making himself available for interrogation as and when required, which is a material consideration for grant of anticipatory bail. Hence, granting anticipatory bail to a person in custody would be illogical. (Paras 4-5)
C) Criminal Procedure - Anticipatory Bail - Remedy for Person in Custody - Section 438 CrPC - A person already in custody who apprehends arrest in another case is not remediless; he can surrender and apply for regular bail on the principle of 'deemed custody'. (Para 4)
Issue of Consideration
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 a different case.
Final Decision
Appeal allowed. Impugned order of the High Court set aside. The anticipatory bail application filed by respondent no.1 in connection with CR No. 806 of 2019 is held not maintainable as he was already in custody in ECIR No. 10 of 2021.
Law Points
- Anticipatory bail
- Section 438 CrPC
- maintainability
- custody
- reason to believe
- arrest
- personal liberty
- judicial custody
- pre-arrest bail
- different case
Case Details
2024 LawText (SC) (09) 315
Criminal Appeal No. 2501 of 2024 (arising out of SLP (Crl.) No. 6942 of 2024)
Amar S. Mulchandani & Anr.
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Nature of Litigation
Criminal appeal against High Court order overruling objection to maintainability of anticipatory bail application.
Remedy Sought
Appellant (complainant) sought setting aside of High Court order that held anticipatory bail application maintainable despite accused being in custody in another case.
Filing Reason
Respondent no.1, while in custody in ECIR No. 10 of 2021, filed anticipatory bail application in CR No. 806 of 2019; appellant objected on ground of maintainability, which was overruled by High Court.
Previous Decisions
High Court of Bombay in Anticipatory Bail Application No. 2801 of 2023 held that anticipatory bail application is maintainable even if accused is in custody in another case.
Issues
Whether an application for anticipatory bail under Section 438 CrPC is maintainable when the accused is already in judicial custody in a different case.
Submissions/Arguments
Appellant: A person already in custody cannot have reason to believe he may be arrested; condition under Section 438(2)(i) cannot be fulfilled; remedy is to surrender and seek regular bail.
Respondent: Right to seek anticipatory bail is linked to personal liberty; no statutory bar; precondition is only apprehension of arrest, which can exist despite custody in another case.
Ratio Decidendi
A person who is already in custody cannot have a 'reason to believe that he may be arrested' as required under Section 438 CrPC, because he is already under arrest. Therefore, an application for anticipatory bail under Section 438 CrPC is not maintainable when the applicant is in custody in connection with any other case. The only remedy for such a person is to surrender and apply for regular bail.
Judgment Excerpts
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?
A person who is already in custody cannot have a reason to believe that he would be arrested as he already stands arrested.
If an accused while being in custody in connection with one case, is granted anticipatory bail under Section 438 of the CrPC in connection with a different case, then it would not be possible for him to fulfill the requirement of the condition that may be imposed under Section 438(2)(i) of the CrPC.
Procedural History
Respondent no.1 was arrested in ECIR No. 10 of 2021. While in custody, he filed Anticipatory Bail Application No. 2801 of 2023 before the Bombay High Court in connection with CR No. 806 of 2019. The appellant (complainant) intervened and objected to maintainability. The High Court overruled the objection on 31.10.2023. The appellant then filed SLP (Crl.) No. 6942 of 2024, which was converted into Criminal Appeal No. 2501 of 2024.
Acts & Sections
- Code of Criminal Procedure, 1973: 438, 438(2)(i), 438(4)
- Indian Penal Code, 1860: 406, 409, 420, 465, 467, 468, 471, 34
- Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989: 18, 18A(2)
- Constitution of India: 14, 21
