# Dhanraj Aswani v. Amar S. Mulchandani & Anr

- **Citation:** 2024 INSC 669
- **Court:** Supreme Court of India
- **Decided:** 2024-09-09
- **Case number:** Criminal Appeal No. 2501 of 2024
- **Bench:** Dr. Dhananjaya Y. Chandrachud
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dhanraj-aswani-v-amar-s-mulchandani-anr-37958
- **Pages:** 56

## Headnote

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.
Headnotes†
Code of Criminal Procedure, 1973 - s.438 - Accused already in
judicial custody in connection with one case, if can apply for
anticipatory bail in a different case - Maintainability of such
anticipatory bail applications - Divergent opinions expressed
by different High Courts:
Held: An anticipatory bail application filed at the instance of
an accused already in judicial custody in a different offence is
maintainable - 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 u/s.437 or s.439, as the case
may be - 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 s.438 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 u/s.438 is the one prescribed u/s.438(4) and in
other statutes like the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989, etc. - While a person already
* Author
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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 - Thus, all rights conferred by
the statute on the accused as well as the investigating agency in
relation to the subsequent offence are independently protected -
For the purpose of interrogation/investigation in an offence, the
investigating agency can seek remand of the accused whilst he
is in custody in connection with a previous offence so long as no
order granting anticipatory bail has been passed in relation to the
subsequent offence - Under s.438, the pre-condition for a person
to apply for pre-arrest bail is a "reason to believe that he may be
arrested on an accusation of having committed a non-bailable
offence" - Therefore, the only pre-condition for exercising the
said right is the apprehension of the accused that he is likely to
be arrested - Custody in one case does not have the effect of
taking away the apprehension of arrest in a different case - Right
of an accused to protect his personal liberty u/Article 21 of the
Constitution of India with the aid of the provision of anticipatory
bail u/s.438 cannot be defeated or thwarted without a valid
procedure established by law - Such procedure should also pass
the test of fairness, reasonableness and manifest non-arbitrariness
u/Article 14. [Paras 60, 66]
Code of Criminal Procedure, 1973 - s.46 - 'Arrest how
made'- "reason to believe" - Prisoner Transit Warrant (P.T.
Warrant) u/s.267 - "other proceedings" - 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 - High Court of Rajasthan in Sunil Kallani
reasoned that once a person is taken in custody in relation to
an offence, thereafter it is not possible to arrest him in relation
to a different offence as one of the essential conditions for
arrest is placing the body of the accused in custody of the
police authorities by means of actual touch or confinement -
As there cannot be any actual touch or confinement while a
person is in custody, he cannot have a "reason to

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[2024] 9 S.C.R. 257 : 2024 INSC 669
Dhanraj Aswani
v.
Amar S. Mulchandani & Anr.
(Criminal Appeal No. 2501 of 2024)
09 September 2024
[Dr. Dhananjaya Y. Chandrachud, CJI,
J.B. Pardiwala* and Manoj Misra, JJ.]
Issue for 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 his involvement in a different case.
Headnotes†
Code of Criminal Procedure, 1973 - s.438 - Accused already in
judicial custody in connection with one case, if can apply for
anticipatory bail in a different case - Maintainability of such
anticipatory bail applications - Divergent opinions expressed
by different High Courts:
Held: An anticipatory bail application filed at the instance of
an accused already in judicial custody in a different offence is
maintainable - 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 u/s.437 or s.439, as the case
may be - 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 s.438 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 u/s.438 is the one prescribed u/s.438(4) and in
other statutes like the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989, etc. - While a person already
* Author
258
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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 - Thus, all rights conferred by
the statute on the accused as well as the investigating agency in
relation to the subsequent offence are independently protected -
For the purpose of interrogation/investigation in an offence, the
investigating agency can seek remand of the accused whilst he
is in custody in connection with a previous offence so long as no
order granting anticipatory bail has been passed in relation to the
subsequent offence - Under s.438, the pre-condition for a person
to apply for pre-arrest bail is a "reason to believe that he may be
arrested on an accusation of having committed a non-bailable
offence" - Therefore, the only pre-condition for exercising the
said right is the apprehension of the accused that he is likely to
be arrested - Custody in one case does not have the effect of
taking away the apprehension of arrest in a different case - Right
of an accused to protect his personal liberty u/Article 21 of the
Constitution of India with the aid of the provision of anticipatory
bail u/s.438 cannot be defeated or thwarted without a valid
procedure established by law - Such procedure should also pass
the test of fairness, reasonableness and manifest non-arbitrariness
u/Article 14. [Paras 60, 66]
Code of Criminal Procedure, 1973 - s.46 - 'Arrest how
made'- "reason to believe" - Prisoner Transit Warrant (P.T.
Warrant) u/s.267 - "other proceedings" - 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 - High Court of Rajasthan in Sunil Kallani
reasoned that once a person is taken in custody in relation to
an offence, thereafter it is not possible to arrest him in relation
to a different offence as one of the essential conditions for
arrest is placing the body of the accused in custody of the
police authorities by means of actual touch or confinement -
As there cannot be any actual touch or confinement while a
person is in custody, he cannot have a "reason to believe"
that he may be arrested in relation to a different offence:
Held: Such view not agreed with - There are two fundamental
fallacies in the reasoning adopted by the Rajasthan High Court -
First, the High Court failed to consider the possibility of arrest of
the person in custody in relation to a different offence immediately
after he is set free from the custody in the first offence - The
[2024] 9 S.C.R.
259
Dhanraj Aswani v. Amar S. Mulchandani & Anr.
second fallacy in the reasoning of the High Court is that there
can be no arrest of an accused in relation to a different offence
while he is already in custody in relation to some offence - Ways
by which a person who is already in custody may be arrested,
enumerated - 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 - Though a plain reading of s.46
makes it clear that arrest involves actual touch or confinement
of the body of the person sought to be arrested however, arrest
can also be effected without actual touch if the person sought to
be arrested submits to the custody by words or action - A lawful
arrest can be made even without actually seizing or touching the
body - Actions or words which successfully bring to the notice
of the accused that he is under a compulsion and thereafter
cause him to submit to such compulsion will also be sufficient to
constitute arrest - This is in conformity with the modality of the
arrest contemplated u/s.46 - Procedure followed in cases where
a person already in custody is required to be arrested in relation
to a different offence, explained - When a person in custody is
confronted with a P.T. Warrant obtained in relation to a different
offence, such a person has no choice but to submit to the custody
of the police officer who has obtained the P.T. Warrant - Thus,
although there is no confinement to custody by touch, yet there
is submission to the custody by the accused based on the action
of the police officer in showing the P.T. Warrant to the accused -
Thereafter, on production of the accused before the jurisdictional
Magistrate, like in the case of arrest of a free person who is not
in custody, the accused can either be remanded to police or
judicial custody, or he may be enlarged on bail and sent back to
the custody in the first offence - s.267 can be invoked to require
production of the accused before the jurisdictional Magistrate,
who can thereafter remand him to the custody of the investigating
agency - Such an interpretation of the provision would give true
effect to the words "other proceedings" as they appear in s.267,
which cannot be construed to exclude proceedings at the stage
of investigation - Contrary to the view taken by the Rajasthan,
Allahabad and Delhi High Courts, a person, while in custody in
relation to an offence, can be arrested in relation to a different
offence, either after getting released from custody in the first
offence, or even while remaining in custody in the first offence.
[Paras 38, 40-42, 46, 49, 51-53]
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Arrest - Subsequent arrest - Effect on accused - Plea of the
appellant that as the object of s.438, CrPC was to prevent an
accused from the humiliation of arrest, its protection would not
include within its ambit a person who is already in custody:
Held: Rejected - Each arrest a person faces compounds their
humiliation and ignominy - Each subsequent arrest underscores
a continued or escalating involvement in legal troubles that can
erode the dignity of the person and their public standing - When
a subsequent arrest occurs, it intensifies the emotional and social
burden, amplifying the perception of their criminality and reinforcing
negative judgments from society - Subsequent arrest in relation to
different offences, while the individual is in custody in a particular
offence, further alienates the individual from their community and
adversely affects their personal integrity - Each additional arrest
exacerbates the person's shame making the cumulative impact
of such legal entanglements increasingly devastating. [Para 58]
Criminal Law - Procedural laws - Rights conferred under -
Importance - Discussed.
Code of Criminal Procedure, 1973 - s.438 - Anticipatory bail -
Concept - Evolution - Discussed.
Case Law Cited
Narinderjit Singh Sahni v. Union of India [2001] Supp. 4 SCR
114 : (2002) 2 SCC 210 - distinguished.
Sunil Kallani v. State of Rajasthan (2021) SCC OnLine Raj 1654;
Rajesh Kumar Sharma v. CBI (2022) SCC OnLine All 832; Bashir
Hasan Siddiqui v. State (GNCTD) (2023) SCC OnLine Del 7544 -
disapproved.
Kartar Singh v. State of Punjab [1994] 2 SCR 375 : (1994) 3
SCC 569; Gurbaksh Singh Sibbia v. State of Punjab [1980] 3
SCR 383 : (1980) 2 SCC 565; Sushila Aggarwal v. State (NCT of
Delhi) [2020] 2 SCR 1 : (2020) 5 SCC 1; Prathvi Raj Chauhan v.
Union of India [2020] 2 SCR 727 : (2020) 4 SCC 727; Siddharam
Satlingappa Mhetre v. State of Maharashtra and Others [2010]
15 SCR 201 : (2011) 1 SCC 694; Central Bureau of Investigation
Special Investigation Cell-I New Delhi v. Anupam J. Kulkarni [1992]
3 SCR 158 : (1992) 3 SCC 141; Tejesh Suman v. State of Rajasthan
(2023) SCC OnLine SC 76; State of U.P. v. Deoman Upadhyaya
[1961] 1 SCR 14 : AIR (1960) SC 1125; Tusharbhai Rajnikantbhai
Shah v. State of Gujarat [2024] 8 SCR 235 : (2024) SCC OnLine
[2024] 9 S.C.R.
261
Dhanraj Aswani v. Amar S. Mulchandani & Anr.
SC 1897; A.R. Antulay v. R. S. Nayak [1988] Suppl. 1 SCR 1 :
(1988) 2 SCC 602; State of West Bengal v. Anwar Ali Sarkar [1952]
1 SCR 284 : (1952) 1 SCC 1 - referred to.
Alnesh Akil Somji v. State of Maharashtra (2021) SCC OnLine
Bom 5276; Sanjay Kumar Sarangi v. State of Odisha (2024) SCC
OnLine Ori 1334; Amir Chand v. The Crown (1949) SCC OnLine
Punj 20; S. Harsimran Singh v. State of Punjab (1984) Cri LJ 253;
State v. K.N. Nehru (2011) SCC OnLine Mad 1984; Roshan Beevi
and others v. Joint Secretary to Government of Tamil Nadu and
others (1983) SCC OnLine Mad 163; C. Natesan v. State of Tamil
Nadu and Others (1998) SCC OnLine Mad 931; Ranjeet Singh v.
State of Uttar Pradesh (1995) Cri LJ 3505; State of Maharashtra
v. Yadav Kohachade (2000) Cri LJ 959 - referred to.
Alderson v. Booth (1969) 2 All ER 271 - referred to.
Books and Periodicals Cited
Law Commission's 48th Report (1972); Law Commission's 41st
Report; Black's Law Dictionary (5th Edition, 1979) - referred to.
List of Acts
Code of Criminal Procedure, 1973; Constitution of India.
List of Keywords
Section 438 of the Code of Criminal Procedure, 1973; Anticipatory
bail; Police custody; Judicial custody; Accused already in
judicial custody; Anticipatory bail in a different case; "reason to
believe"; Arrest; Subsequent arrest; Custody; Regular bail; Arrest
apprehended; Apprehension of arrest; Apprehension of arrest in a
different case/offence; Likely to be arrested; First offence; Custody
in the first offence; Different offence; Subsequent offence; Remand
of the accused; Previous offence; Pre-condition for pre-arrest bail;
Arrest in relation to some other non-bailable offence; Actual touch
or confinement; Formal arrest; Possibility of arrest of the person
in custody; Prisoner Transit Warrant; Jurisdictional Magistrate.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 2501
of 2024
From the Judgment and Order dated 31.10.2023 of the High Court
of Judicature at Bombay in ABA No. 2801 of 2023
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Appearances for Parties
Sidharth Luthra, Sr. Adv., Prashant S. Kenjale, Amol Nirmalkumar
Suryawanshi, Ms. Srishty Pandey, Ashutosh Chaturvedi, Ms. Gayatri
Virmani, Shubham Gavande, Advs. for the Appellant.
Siddharth Dave, Sr. Adv., Shantanu Phanse, SS Bedekar, Prastut
Dalvi, Ms. Vidhi Thaker, Siddhant Sharma, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
J.B. Pardiwala, J.
For the convenience of exposition, this judgment is divided into the
following parts:
A.
SUBMISSIONS ON BEHALF OF THE APPELLANT.......
4*
B.
SUBMISSIONS ON BEHALF OF THE RESPONDENT
NO. 1 (ORIGINAL ACCUSED) ........................................
7*
C.
VIEWS OF DIFFERENT HIGH COURTS ON THE ISSUE
IN QUESTION ................................................................... 10*
D.
ANALYSIS ......................................................................... 25*
i.
Evolution of the concept of anticipatory bail ....... 25*
ii.
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 nonbailable offence? .................................................... 44*
iii. Illustrative Examples ................................................ 63*
E.
CONCLUSION ..............................................................
65*
1.
A short question of general public importance on which there is great
divergence of judicial opinion that falls for the consideration of this
Court is as under:
* Ed. Note: Pagination as per the original Judgment.
[2024] 9 S.C.R.
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Dhanraj Aswani v. Amar S. Mulchandani & Anr.
"Whether an application for anticipatory bail under Section
438 of the Code of Criminal Procedure, 1973 (for short,
"CrPC") is maintainable at the instance of an accused
while he is already in judicial custody in connection with
his involvement in a different case?"
2.
This appeal arises from the judgment and order dated 31.10.2023
passed by the High Court of Judicature at Bombay in Anticipatory
Bail Application No. 2801 of 2023 by which the High Court overruled
the objection raised by the appellant herein (original complainant)
as regards the maintainability of the anticipatory bail application
filed by respondent no. 1 (original accused) in connection with
CR No. 806 of 2019 registered with Pimpri Police Station for the
offences punishable under Sections 406, 409, 420, 465, 467, 468,
471 respectively read with Section 34 of the Indian Penal Code (for
short, "IPC") and thereby took the view that although respondent
no.1 herein may already be in custody in connection with ECIR No.
10 of 2021, yet he would be entitled to pray for anticipatory bail in
connection with a different case.
3.
It appears from the materials on record that respondent no. 1 herein
came to be arrested in connection with ECIR No. 10 of 2021.While
in custody, he apprehended arrest in connection with CR No. 806 of
2019 registered against him at the instance of the appellant herein.
In such circumstances, he prayed for anticipatory bail before the
High Court. The appellant herein intervened in the proceedings of
said anticipatory bail application and raised an objection that as
respondent no. 1 herein is already in custody in connection with ECIR
No. 10 of 2021, he cannot pray for anticipatory bail in connection
with CR No. 806 of 2019. The objection raised by the appellant
herein in his capacity as the complainant came to be overruled
and the High Court proceeded to hold that although respondent
no. 1 herein may be in custody in one case, yet the same would
not preclude him from seeking pre-arrest bail in connection with a
different case. Since the objection was overruled, the appellant is
now before this Court.
A.
SUBMISSIONS ON BEHALF OF THE APPELLANT
4.
Mr. Sidharth Luthra, the learned Senior counsel appearing for the
appellant canvassed the following submissions:
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i.
The High Court committed a serious error in taking the view
that although a person might be in custody after his arrest in
one case, yet such a person can apply for the grant of prearrest bail under Section 438 of the CrPC in connection with
a different case.
ii.
The essential part of arrest is placing the corpus (body of
the person) in custody of the police authorities. The natural
corollary, therefore, is that a person who is already in custody
cannot have reasons to believe that he would be arrested
as he already stands arrested. The pre-condition to invoke
Section 438 CrPC is that the accused should have a reason
to believe that he "may be arrested". If the accused is already
in custody, then he can have no reason to believe that he
"may be arrested".
iii.
The salutary provision of Section 438 of the CrPC was enshrined
with a view to see that the liberty of any individual concerned
is not put in jeopardy on frivolous grounds at the instance of
unscrupulous or irresponsible person or officers who may be
in charge of the prosecution. If such is the objective behind
the enactment of Section 438 of the CrPC, then for a person
who is already arrested there is no question of any humiliation
being caused.
iv.
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 i.e. to
make himself/herself available for interrogation as and when
required. In other words, a person in custody would not be
able to meet or comply with the condition that may be imposed
under Section 438(2)(i) of the CrPC. This being a material
consideration for grant of anticipatory bail, it would be illogical
to permit a person to seek anticipatory bail if he is unable to
satisfy conditions that may be imposed under Section 438(2)
(i) of the CrPC.
v.
If a person who is already in custody in connection with one
case apprehends arrest in connection with a different case, then
he is not remediless. In such circumstances, he can seek to
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Dhanraj Aswani v. Amar S. Mulchandani & Anr.
surrender and pray for regular bail on the principle of "deemed
custody" both in Magistrate as well as Sessions triable cases.
5.
Mr. Luthra, with a view to fortify his aforesaid submissions, placed
strong reliance on the following decisions:
i.
Kartar Singh v. State of Punjab, [1994] 2 SCR 375, (1994)
3 SCC 569
ii.
Gurbaksh Singh Sibbia v. State of Punjab, [1980] 3 SCR
383, (1980) 2 SCC 565
iii.
Sushila Aggarwal v. State (NCT of Delhi), [2020] 2 SCR 1,
(2020) 5 SCC 1
iv.
Sunil Kallani v. State of Rajasthan, 2021 SCC OnLine Raj
1654
v.
Rajesh Kumar Sharma v. CBI, 2022 SCC OnLine All 832
vi.
Tejesh Suman v. State of Rajasthan, 2023 SCC OnLine SC 76
vii. Bashir Hasan Siddiqui v. State (GNCTD), (2023) SCC OnLine
Del 7544
viii. Narinderjit Singh Sahni v. Union of India, [2001] Supp. 4
SCR 114, (2002) 2 SCC 210.
6.
In such circumstances referred to above, the learned Senior counsel
prayed that there being merit in his appeal, the same may be allowed
and the impugned order passed by the High Court be set aside.
B.
SUBMISSIONS ON BEHALF OF THE RESPONDENT NO. 1
(ORIGINAL ACCUSED)
7.
Mr. Siddharth Dave, the learned Senior counsel appearing for the
original accused, vehemently opposed the present appeal and
canvassed the following submissions:
i.
The legal maxim ubi jus ibi remedium i.e. where there is a
right, there is a remedy, is recognised as a basic principle of
jurisprudence. A Constitution Bench of this Court in Anita
Kushwaha v. Pushap Sudan reported in (2016) 8 SCC 509
held that the right to access justice is so inalienable, that no
system of governance can possibly ignore its significance,
leave alone afford to deny the same to its citizens. It was
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also held that the ancient Roman jurisprudential maxim ubi
jus ibi remedium has contributed to the acceptance of access
to justice as a basic and inalienable human right, which all
civilized societies recognise and enforce.
ii.
The right of an accused to apply for pre-arrest bail under
Section 438 of the CrPC is intrinsically linked to his right to
access the competent courts to avail his remedies under the
law. A person would thus be entitled to apply for pre-arrest bail
under Section 438 of the CrPC in one case, even though he
may be in custody in connection with some other case.
iii.
The right of an accused to protect his personal liberty within the
contours of Article 21 of the Constitution of India, by applying
for pre-arrest bail under Section 438 CrPC cannot be eliminated
without a procedure established by law. Further, such procedure
should also pass the test of fairness, reasonableness and
manifest non-arbitrariness on the touchstone of Article 14 of
the Constitution of India.
iv.
Under Section 438 of the CrPC, the pre-condition for a person
to apply for pre-arrest bail is a "reason to believe that he may
be arrested on accusation of having committed a non-bailable
offence". Therefore, the only pre-condition for exercising the
said right is the apprehension of the accused that he may be
arrested.
v.
The arrest of an accused in one case cannot foreclose his right
to apply for pre-arrest bail in a different case, since there is no
such stipulation in the language of Section 438 of the CrPC.
The restrictions on the exercise of power to grant pre-arrest bail
under Section 438 of the CrPC are prescribed under Section
438(4) of the CrPC which provides that the provisions of Section
438 shall not apply to cases involving arrest under Sections
376(3), 376AB, 376DA or 376DB respectively of the IPC.
vi.
A Constitution Bench of this Court, in Sushila Aggarwal (supra)
while considering the statutory restrictions on Section 438 of
the CrPC held that where the Parliament intended to exclude
or restrict the powers of the Court under Section 438 of the
CrPC, it did so in categorical terms (such as Section 438(4)).
The omission on the part of the legislature to restrict the right
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Dhanraj Aswani v. Amar S. Mulchandani & Anr.
of any person accused of having committed a non-bailable
offence to seek anticipatory bail can lead one to assume
that neither a blanket restriction can be read into the text of
Section 438 CrPC by this Court, nor can inflexible guidelines
in the exercise of discretion be insisted as that would amount
to judicial legislation.
vii. A statutory restriction on the right to apply for pre-arrest bail
is also found under Sections 18 and 18A(2) respectively of
the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (for short, "the Act, 1989"). The said
provisions provide that Section 438 of the CrPC shall not apply to
cases under the Act, 1989. That despite the statutory bar under
Sections 18 and 18A(2) respectively of the Act, 1989 a threeJudge Bench of this Court in Prathvi Raj Chauhan v. Union
of India reported in (2020) 4 SCC 727 held that if a complaint
does not make out a prima facie case for applicability of the
Act, 1989 the bar under Sections 18 and 18A(2) respectively of
the said Act shall not apply. The aforesaid judgment indicates
the judicial approach of adopting an interpretation in favour of
personal liberty.
8.
In such circumstances referred to above, Mr. Dave prayed that there
being no merit in the appeal, the same may be dismissed.
C.
VIEWS OF DIFFERENT HIGH COURTS ON THE ISSUE IN
QUESTION
9.
In Sunil Kallani (supra), a learned Single Judge of the High Court
of Rajasthan took the view that an application for anticipatory bail
would not be maintainable at the instance of a person who is already
arrested and is in police custody or judicial custody in relation to
a different case. The line of reasoning adopted by the High Court
in taking such a view was that a person who is already in custody
cannot have a reason to believe that he would be arrested as he
already stood arrested, albeit in a different case. The High Court
observed that arrest means to actually touch or confine the body of
the person to the custody of a police officer and an essential part
of arrest is placing the corpus, that is the body of the person, in
custody of the police authorities. In light of this essential requirement
to constitute an arrest, a person who is already in custody cannot
have a reason to believe that he may be arrested as he stood already
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arrested. The High Court tried to fortify its view by relying on some
of the observations made by this Court in Narinderjit Singh Sahni
(supra). A few relevant observations made by the High Court are
extracted hereinbelow:
"17. The Scheme of Code of Criminal Procedure does not
define the word arrest. In Chapter V of Code of Criminal
Procedure, Section 41 lays down when police may arrest
without warrant. Section 41B lays down procedure of
arrest and duties of officer. Section 46 mentions how
arrest is to be made.
18. Upon reading Section 46 Cr.P.C. (supra), it is apparent
that arrest would mean to actually touch or confine the
body of the person to custody of the police officer. Section
167 Cr.P.C. lays down that the custody may be given
to the police for the purpose of investigation (called as
remand) or be sent to jail (called as judicial custody). Thus
the essential part of arrest is placing the corpus, body of
the person in custody of the police authorities whether
of a police station or before him or in a concerned jail.
19. The natural corollary is therefore that a person who is
already in custody cannot have reasons to believe that he
shall be arrested as he stands already arrested. In view
thereof, the precondition of bail application to be moved
under Section 438 Cr.P.C. i.e. reasons to believe that he
may be arrested" do not survive since a person is already
arrested in another case and is in custody whether before
the police or in jail.
xxx xxx xxx
23. As pointed out by learned counsel for the petitioner that
there may be cases where a person who has already been
arrested in a particular case may be faced with registering
of several FIRs by the persons who do not want him to
be released from jail and in the said circumstances only
option available is to take anticipatory bail in other FIRs
as the police would seek his arrest in all the cases. It may
be subsequently registered against him for non-bailable
Offences and in such an event, there would be infraction
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of his personal liberty. However this Court does not agree
to the submissions noticed as above. Once the FIR has
been registered in relation to an offence committed against
any person by an accused he cannot claim to be protected
from offences which he may have committed with other
persons who have their individual right of registering an
FIR against such an accused. The accused will have to
face investigation and subsequent trial in relation to each
and every case individually. The question whether he
may be punished separately or jointly for other cases is
a completely different question altogether and need not
be gone into the present case.
24. However, keeping in view observations in Narinderjit
Singh Sahni, (supra) and considering that the purpose
of preventive arrest by a direction of the court on an
application under Section 438 Cr.P.C. would be an order
in vacuum. As a person is already in custody with the
police this Court is of the view that such an anticipatory
bail application under Section 438 Cr.P.C. would not lie
and would be nothing but travesty of justice in allowing
anticipatory bail to such an accused who is already in
custody.
25. Examining the issue from another angle if such an
application is held to be maintainable the result would be
that if an accused is arrested say for an offence committed
of abduction and another case is registered against him
for having committed murder and third case is- registered
against him for having stolen the car which was used for
abduction in a different police station and the said accused
is granted anticipatory bail in respect to the offence of
stealing of the car or in respect to the offence of having
committed murder the concerned Police Investigating
Agency where FIRs have been registered would be
prevented from conducting individual investigation and
making recoveries as anticipatory bail once granted would
continue to operate without limitation as laid down by the
Apex Court in Sushila Aggarwal, (supra). The concept
of. anticipatory bail, as envisaged under-Section 438
Cr.P.C. would stand frustrated. The provisions of grant of
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anticipatory bail are essentially to prevent the concerned
person from litigation initiated with the object of injuring
and humiliating the applicant by haying him so arrested
and for a person who stands already arrested, such a
factor does not remain available.
26. In view of above discussion, this Court holds that
the anticipatory bail would not lie and would not be
maintainable if a person is already arrested and is in
custody of police or judicial custody in relation to another
criminal case which may be for similar offence or for
different offences."
(Emphasis supplied)
10. In the case of Rajesh Kumar Sharma (supra), a learned Single
Judge of the High Court of Allahabad followed the view taken by
the High Court of Rajasthan referred to above.
11. In Bashir Hasan Siddiqui (supra), a learned Single Judge of the
High Court of Delhi, relying on Sunil Kallani (supra) and Rajesh
Kumar Sharma (supra), took a similar view that an application
seeking anticipatory bail would not be maintainable at the instance
of a person who apprehends arrest if such a person is already
arrested and is in custody in connection with a different offence.
The relevant observations made by the High Court in paragraph 6
of the said decision are extracted as under:
"6. Therefore, keeping in view the entire facts and
circumstances and also taking into account the judgment
passed by the Rajasthan High Court in Sunil Kallani (supra)
and subsequently judgment passed by Allahabad High
Court in Rajesh Kumar Sharma (supra), this Court is
in consonance with the opinions of both the High Court
that since the accused is in custody in another FIR, the
anticipatory bail in other FIR is not maintainable. As a
result, the present petition stands dismissed."
(Emphasis supplied)
12. In Alnesh Akil Somji v. State of Maharashtra reported in 2021
SCC OnLine Bom 5276, a learned Single Judge of the High Court
of Judicature at Bombay formulated the following question of law
for its consideration:
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"Whether an anticipatory bail application would be
maintainable by an accused who is already arrested and
is in magisterial custody in relation to another crime?"
13. The Bombay High Court also took notice of the decision of the
High Court of Rajasthan in Sunil Kallani (supra). The decision
of this Court in the case of Narinderjit Singh Sahni (supra) was
also looked into and ultimately it was held that an accused has
every right, even if he is arrested in a number of cases, to move
the courts for anticipatory bail in each of the offence registered
against him, irrespective of the fact that he is already in custody
in relation to a different offence. The High Court was of the view
that the application(s) under Section 438 of the CrPC would have
to be heard and decided on merits independent of the other cases
in which he is already in custody. We may refer to some of the
observations made by the High Court as under:
"8. A plain reading of the provision would show that the
only restriction provided is under Section 438 (4) of the
Cr. PC, which says that the provision will not apply to
accusations of offences which are stated in Section 438
(4) of the Cr.P.C. Similarly, certain special statutes have
excluded the operation of Section 438 of the Cr.P.C. for
accusation of offences punishable under those special
statutes, for example Section 18A of the Schedule Caste
and Schedule Tribes (Prevention of Atrocities) Act, 1989
bars exercise of powers under Section 438 of the Cr.P.C.
9. The Hon'ble Apex Court in the case of Sushila A
Aggarwal and others (supra), while dealing with the scope
of Section 438 of the Cr.P.C has followed the decision in
the case of Shri Gurbaksh Singh Sibbia and others Versus
State of Punjab and regarding the bar or restriction on the
exercise of power to grant anticipatory bail, the Hon'ble
Apex Court has held as follows:
"62. [...] In this background, it is important to notice
that the only bar, or restriction, imposed by Parliament
upon the exercise of the power (to grant anticipatory
bail) is by way of a positive restriction i.e. in the
case where accused are alleged to have committed
offences punishable under Section 376 (3) or Section
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376-AB or Section 376-DA or Section 376-DB of the
Penal Code. In other words, Parliament has now
denied jurisdiction of the court (i.e. Court of Session
and High Courts) from granting anticipatory bail to
those accused of such offences. The amendment
[Code of Criminal Procedure Amendment Act, 2018
introduced Section 438 (4)] reads as follows:
"438. (4) Nothing in this section shall apply to
any case involving the arrest of any person
on accusation of having committed an offence
under sub-section (3) of Section 376 or Section
376-AB or Section 376-DA or Section 376-DB
of the Indian Penal Code".
63. Clearly, therefore, where Parliament wished
to exclude or restrict the power of courts, under
Section 438 of the Code, it did so in categorical
terms. Parliament's omission to restrict the right of
citizens, accused of other offences from the right
to seek anticipatory bail, necessarily leads one to
assume that neither a blanket restriction can be read
into by this Court, nor can inflexible guidelines in the
exercise of discretion, be insisted upon- that would
amount to judicial legislation".
10. Similarly, the Hon'ble Apex Court has made following
observations in the case of Shri Gurbaksh Singh Sibbia
and others (supra):
"39. Fifthly, the provisions of Section 438 cannot be
invoked after the arrest of the accused. The grant
of "anticipatory bail" to an accused who is under
arrest involves a contradiction in terms, insofar as
the offence or offences for which he is arrested, are
concerned. After arrest, the accused must seek his
remedy under Section 437 or Section 439 of the
Code, if he wants to be released on bail in respect
of the offence or offences for which he is arrested".
11. It is thus very clear, according to Hon'ble Apex Court,
that anticipatory bail will not be maintainable in case
a person is in custody in the same offence for which
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Dhanraj Aswani v. Amar S. Mulchandani & Anr.
pre-arrest bail is sought, the restriction, if any, upon
maintainability of prearrest bail will be there only if a
person is in custody in that particular offence itself.
12. From the above pronouncements, two things are clear.
First, there is no such bar in Cr.P.C or any statute which
prohibits Session or the High Court from entertaining and
deciding an anticipatory bail, when such person is already
in judicial or police custody in some other offence. Second,
the restriction cannot be stretched to include arrest made
in any other offence as that would be against the purport
of the provision.
xxx xxx xxx
14. I may point out here that the case of Narinderjit Singh
Sahni and Another (supra) was in respect of maintainability
of Article 32 wherein relief in the nature of Section 438
was sought. Even, the said judgment does not hold in
very clear terms that a person arrested in one offence
cannot seek the relief provided under Section 438 of
Cr.PC in another offence merely on the ground that he
stands arrested in another district offence.
15. In my considered opinion, there was no proper
interpretation of Section 438 of the Cr.PC at the hands
of learned Additional Sessions Judge. Accused has every
right, even if he is arrested in number of cases, to move
in each of offence registered against him irrespective
of the fact that he is already in custody but for different
offence, for the reason that the application (s) will have to
be heard and decided on merits independent of another
crime in which he is already in custody.
16. One cannot and must not venture, under the garb of
interpretation, to substantiate its own meaning than the
plain and simple particular though provided by statute.
What has not been said cannot be inferred unless the
provision itself gives room for speculation. If the purpose
behind the intendment is discernible sans obscurity and
ambiguity, there is no place for supposition."
(Emphasis supplied)
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14. In Sanjay Kumar Sarangi v. State of Odisha reported in 2024
SCC OnLine Ori 1334, a learned Single Judge of the High Court of
Orissa took the view that there is no statutory bar for an accused in
custody in connection with a case to pray for grant of anticipatory
bail in a different case registered against him. The court, upon
perusal of the relevant provisions, took the view that arrest means
physical confinement of a person with or without the order of the
Court. The Court noted that Section 167(2) of the CrPC, which
governs 'remand', is applicable to a case where the accused is
already arrested, and charge-sheet has not been filed. The Court
observed that there is no specific provision in the CrPC which
governs a situation where a person is required to be arrested/
remanded in connection with a new case when he is already in
custody in connection with some other case and in such a situation,
the accused can only be remanded in connection with the new
case on the order of the competent court. Answering the question
whether such order of remand by the court can be equated with
an act of arrest, the Court held that the purpose of remand as in
the case of arrest is to collect evidence during investigation, and
thus both amount to one and the same thing.
15. The High Court proceeded to explain that if a new case is registered
against a person already in custody in connection with one case, the
police in such circumstances can either seek an order of remand
from the court or arrest the accused, as and when he is released
from custody in connection with the other case. The Court explained
that it is only in the latter scenario that an order of anticipatory bail
under Section 438 of the CrPC would become effective because it
is only after the accused is released from custody that he can be
arrested in relation to the subsequent case. The Court said that
the anticipatory bail operates at a future time. After being released
from custody in the former case, if he is sought to be arrested in
relation to the subsequent case, there is no reason why he should
be precluded from approaching the court beforehand with the
necessary protection in the form of anticipatory bail.
16. The court clarified that a person cannot be arrested if he is already
in custody in connection with some case, however, his right to obtain
an anticipatory bail in connection with a different case cannot be
curtailed having regard to the scheme of the CrPC. The anticipatory
bail, if granted, shall however be effective only if he is arrested in
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Dhanraj Aswani v. Amar S. Mulchandani & Anr.
connection with the subsequent case consequent upon his release
from custody in the previous case.
17. Lastly, the Court observed that there is nothing in the CrPC which
takes away the right of the accused to seek his liberty or of the
investigating agency to investigate the case only because the
accused is in custody in a different case.