Source: Supreme Court 

Why in News?

• A bench of Chief Justice of India (CJI) DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra held that when a person is in custody for one offence nothing in CrPC precludes him from applying for anticipatory bail with respect to any other offence.           
• The Supreme Court held this in the case of Dhanraj Aswani v. Amar S. Mulchandani & Anr. 

What is the Background of Dhanraj Aswani v. S. Mulchandani & Anr. Case? 

• The Respondent was in custody and came to be arrested for offence in connection with ECIR No. 10 of 2021. 
• While in custody the respondent apprehended arrest in connection with CR No. 806 of 2019. 
• In such circumstances the Respondent pleaded for anticipatory bail.   
• The High Court in this case held that although the respondent was in custody with respect to one case that would not preclude him from applying for anticipatory bail with respect to any other case.  
• An appeal was filed against the above order. The issue for consideration of the Court is as follows: 
  • Whether an application for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 (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? 

What were the Court’s Observations? 

• The Court first discussed the concept of anticipatory bail in detail. 
• The question that the Court first answered was whether a person already in custody can be arrested. 
• There are two ways by which a person already in custody may be arrested: 
  • No sooner than he is released from custody in connection with the first case, the police officer can arrest and take him into custody in relation to a different case. 
  • Even before he is set free from the custody in the first case, the police officer investigating the other offence can formally arrest him and thereafter obtain a Prisoner Transit Warrant (“P.T. Warrant”) under Section 267 of the CrPC from the jurisdictional magistrate for the other offence, and thereafter, on production before the magistrate, pray for remand; or 
  • Instead of effecting formal arrest, the investigating officer can make an application before the jurisdictional magistrate seeking a P.T. Warrant for the production of the accused from prison.  When the accused is produced before the Court in pursuance of P.T. Warrant the investigating officer will be at liberty to make a request for remand of the accused. 
• Thus, it can be said that a person can be arrested even when he is already in custody for some other offence.  
• Therefore, as a logical extension to the above if the accused can be arrested when he is in custody, he cannot be precluded from applying for anticipatory bail while he is in custody. 
• Thus, the Court reached the following conclusions: 
  • An accused can seek anticipatory bail for an offence only when he is not arrested in relation to that offence. 
  • No restriction can be read in Section 438 of CrPC for grant of anticipatory bail in relation to an offence when he is in custody for any other offence. The only restriction on the power of grant of anticipatory bail can be seen in Section 438 (4) and in some other statutes like the Act 1989 etc. 
  • When a person in custody apprehends arrest in a different offence (subsequent offence), all the rights conferred on the accused in relation to the subsequent offence are independently protected. 
  • The Court held that the right of an accused to protect his personal liberty under Article 21 of the Constitution with the aid of Section 438 of CrPC cannot be thwarted without a valid procedure established by law. 
  • The only pre-condition for exercise of power under Section 438 of CrPC is that the person should have a “reason to believe that he may arrested on an accusation of committing a non-bailable offence”.  

How Did the Concept of Anticipatory Bail Evolve?

What are the Changes Introduced in Section 482 of BNSS? 

• The factors to be considered while granting anticipatory bail have been omitted. 
• Clauses (1A) (1B) of Section 438 of CrPC have been omitted in BNSS. 
• Clause (2), (3), (4) of Section 438 of CrPC have been retained in the same form. 

Why are the Landmark Judgments on Anticipatory Bail? 

• Gurbaksh Singh Sibbia v. State of Punjab (1980) 
  • The applicant must show the “reason to believe” that he may be arrested. Specific events and facts must be disclosed to enable the Court to judge the reasonableness of belief or likelihood of arrest. 
  • The High Court or Court of Session must apply it’s mind to the question of anticipatory bail and must not leave it to the discretion of Magistrate under Section 437 of CrPC. 
  • Filing of First Information Report is not a condition precedent. 
  • Anticipatory bail can be granted so long as the person is not arrested in connection with that case/offence. 
  • When the person has been arrested in respect of an offence, he cannot be granted anticipatory bail for that offence. 
  • The normal rule is not to limit the operation of order in relation to period of time. 
• Sushila Aggarwal v. State (NCT of Delhi) (2020)  
  • An application for anticipatory bail should be based on concrete facts and not vague allegations. (FIR filing is not a condition precedent). 
  • It is advisable to issue notice on the anticipatory bail application to teh Public Prosecutor. 
  • Nothing in Section 438 of the CrPC compels or obliges courts to impose conditions limiting relief in terms of time. 
  • Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail or not. 
  • Once granted, anticipatory bail can continue after the filing of the chargesheet till the end of the trial. 
  • It should not be a “blanket order” and must be confined to a specific incident. 
  • The correctness of an order granting anticipatory can be considered by the Appellate or Superior Court.