Cannot grant anticipatory bail if person is already arrested in another case: Rajasthan High Court

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The Jaipur Bench of the Rajasthan High Court on Monday held that a plea for anticipatory bail would not be maintainable if the person has already been arrested and is in custody for another criminal case, whether it arises out of a similar or different offence. (Sunil Kallani vs. State of Rajasthan Through Public Prosecutor)

Justice Sanjeev Prakash Sharma opined that it would be a travesty of justice to allow anticipatory bail to an accused who is already in custody.

“The provisions of grant of anticipatory bail are essentially to prevent the concerned person from litigation initiated with the object of injuring and humiliating the applicant by having him so arrested and for a person who stands already arrested, such a factor does not remain available”, the Court said.

The Court explained that if there are multiple cases filed against a person, and an arrest has been made in connection with one of such criminal cases, “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 (case).”

Therefore, the Court concluded that anticipatory would not be maintainable if a person was already arrested. The Court further directed that all bail applications moved under Section 438 of the Code of Criminal Procedure (CrPC) must include a footnote mentioning that the petitioner was not in custody in any other case.

The order was passed in a case where a man already under arrest had moved an anticipatory bail in relation to another case. The Judge found that the issue had not been addressed by the Supreme Court or any other High Court.

To begin with, Justice Sharma discussed the judgment of the Supreme Court in Gurbaksh Singh Sibbia etc., vs. The State of Punjab, which stated that, the provisions of Section 438, CrPC 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, in so far as the offence or offences for which he is arrested, are concerned”, the Supreme Court had held.

In view of the same, the High Court Judge clarified that an anticipatory bail application would not lie where the accused has already been arrested in a criminal case. However, the question of whether anticipatory bail can be granted when the person is to apprehending arrest in another case remained.

To decide this question, the High Court discussed Section 46 of CrPC, which stated that arrest would mean to actually touch or confine the body of the person to custody of the police officer. The natural corollary of this would be that a person already in custody cannot have reasons to believe that he shall be arrested as he stands already arrested, the Court deduced.

“In view thereof, the pre-condition 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.”

Further, the judgment in Narinderjit Singh Sahni vs. Union of India was also discussed wherein the Supreme Court is stated to have examined a somewhat similar issue.

“On the score of anticipatory bail, it is trite knowledge that Section 438 CrPC is made applicable only in the event of there being an apprehension of arrest. The petitioners in the writ petitions herein are all inside the prison bars upon arrest against all cognizable offences, and in the wake of the aforesaid question relieving the petitioners from unnecessary disgrace and harassment would not arise”, the Supreme Court had said.

Have taken note of this observation as well, the High Court concluded:

“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.”

As such, the anticipatory bail plea before the High Court was also dismissed.

Advocates Swadeep Singh Hora, Prawal Mishra and Aaryan Pareek appeared for the applicants and the respondents were represented by Public Prosecutor SS Mehla and advocates VR Bajwa and Manish Parihar

Read Judgment here:

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