Introduction
In a landmark decision titled Dhanraj Aswani v. Amar S. Mulchandani[i], the Hon’ble Supreme Court has held that a person has the right to seek anticipatory bail as per provisions of s. 438 of the Code of Criminal Procedure, 1973 (‘CrPC’) in connection with an offence for which he has not been arrested. There is no restriction upon the accused from seeking a remedy under s. 438 of the CrPC by reason of him/her already being in custody. While adjudicating upon the aforementioned issue, which has been lingering for several years, the Supreme Court has discussed various judicial pronouncements pertaining to bail jurisprudence, briefly discussed below.
Brief Facts
A first information report (‘FIR’) was registered against the accused/Respondent under various sections of the Indian Penal Code, 1860 (IPC) by the complainant/Appellant while the Respondent was already in custody in a matter relating to the offence of money laundering.
Subsequent to filing the aforementioned FIR, the Respondent approached the Hon’ble Bombay High Court seeking anticipatory bail under s. 438 of the CrPC.
During the hearing of the anticipatory bail application by the Bombay High Court, the Appellant intervened and objected to the maintainability of the anticipatory bail application filed by the Respondent. The Appellant contended that the Respondent was already in custody in some other matter, and hence, an application for anticipatory bail under s. 438 of the CrPC would not lie unless the Respondent first surrenders himself before the investigating body.
The High Court overruled the submissions made by the Appellant, and the Respondent’s anticipatory bail application was allowed. Aggrieved by such observation, the Appellant approached the Supreme Court.
Issue
Whether an application for anticipatory bail under s. 438 of the CrPC was maintainable when an accused is already in judicial custody in connection with a different case/matter.
Held
The Supreme Court dismissed the appeal filed by the Appellant. It held that an under-custody accused is entitled to seek anticipatory bail if he has a ‘reasonable belief’ that he may be arrested in relation to some other non-bailable offence while making the following observations:
The only precondition for applying for pre-arrest bail is ‘reason to believe,’ and there is no bar, express or implied, under CrPC restricting the right to seek anticipatory bail except for offences already barred by s. 438(4) of the CrPC.
While examining the scheme of CrPC, the Court observed that the rights of both the accused and the investigating agency in relation to each subsequent offence ought to be independently protected. i.e., while the accused has the right to seek anticipatory bail for each offence, the investigating agency may also seek remand for each offence.
The Court, in consonance with the submissions made by the Respondent, accepted that the provision for anticipatory bail under CrPC is protected by a. 21 of the Constitution of India ('Constitution'), and such right to protect personal liberty cannot be thwarted without a valid procedure established by law. Furthermore, such procedure should pass the test of fairness and reasonableness and manifest non-arbitrariness on the anvil of a. 14 of the Constitution.
Our Analysis
This decision by the Supreme Court comes as another significant development in recent decisions by the Court restoring bail jurisprudence to its full glory[ii] and granting bail for serious offences such as money laundering. The Supreme Court went into the intricacy of the fundamentals of bail, such as the meaning of ‘arrest’ and ‘custody’ and validly observed that many times, multiple subsequent FIRs can be used as a tool to continuously incarcerate a person who is already under custody or remand and denying an individual of their right to seek anticipatory bail in such a scenario would be in gross violation of the object and intent of CrPC. Furthermore, the Supreme Court rightly rejected the contention of the Appellant that the right to seek anticipatory bail is merely a statutory right and not a fundamental right by holding that such right is well protected under a. 21 of the Constitution. This wide meaning of ‘custody’ adopted by the Supreme Court would also aid individuals under remand or custody of special agencies like ED to seek statutory relief under CrPC. In conclusion, this judgement is a welcome step in expanding bail jurisprudence in India.
End Notes
[i] 2024 SCC OnLine SC 2453.
Authored by Aditya Gupta, Advocate at Metalegal Advocates. The views expressed are personal and do not constitute legal opinions.