Anticipatory Bail Plea Not Maintainable If Accused Already In Custody In Another Criminal Case For Similar/ Different Offences: Rajasthan High Court

The Rajasthan High Court, bench at Jaipur has held that the anticipatory bail application of a person, already in custody in connection to a criminal case, will not be maintainable with respect to another criminal case registered for commission of similar or different offences.

Justice Sanjeev Prakash Sharma was of the view that it would be appropriate that a footnote is added in all bail applications moved under Section 438 Cr.P.C. mentioning that the accused has not been arrested and is not in custody in any other case.

"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 Court observed.

The Court also added that it would be nothing but a travesty of justice in allowing anticipatory bail to such an accused who is already in custody.

The development came while the Court was dealing with an anticipatory bail plea which rose the question "whether an anticipatory bail application would be maintainable by an accused who is already arrested and is in judicial custody in relation to another FIR registered against him for the offences mentioned therein."

Analysing Section 46 read with Section 438 of CrPC, the Court observed,

"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. 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."

Reliance was placed on Narinderjit Singh Sahni & Anr. v. Union of India & Ors., (2002) 2 SCC 210, where the Top Court had observed that "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 counsel appearing for the petitioner argued 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 to him is to take anticipatory bail in other FIRs as the police would seek his arrest in all the cases.

Rejecting this argument, the Court said that the question as to whether such a person may be punished separately or jointly for other cases need not be gone into the matter.

"...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. The concept of anticipatory bail as envisaged under Section 438 Cr.P.C. would stand frustrated," the Court added.

Further observing that the petitioner was already arrested in some other case, the anticipatory bail plea was dismissed.

Case Title: Sunil Kallani v. State of Rajasthan Through Public Prosecutor

Click Here To Read Order