Anticipatory Bail Application Maintainable By Accused Who Is In Custody In Another Crime? Supreme Court Leaves Question Of Law Open

The Supreme Court had an occasion recently to decide the issue authoritatively in Tejesh Suman v State of Rajasthan [SLP (Crl) No. 11122/2022]. In Tejesh Suman, the Rajasthan High Court had vacated the interim protection awarded to the petitioner because he was taken into custody in another matter. Before the Supreme Court, appearing for the accused, Advocate Namit Saxena submitted that there are divergent views by different High Courts on the said issue.

The High Court of Rajasthan in Sunil Kallani v State of Rajasthan [CRLMB – 9155/2019] held 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. “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.” It was further held that 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.

Diametrically opposite to this, the Bombay High Court in Alnesh Akil Somji v State of Maharashtra [Anticipatory Bail Application No. 2857 of 2021], while disagreeing to confirm the view of the Rajasthan High Court in Sunil Kallani, held that 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 and Second, the restriction cannot be stretched to include arrest made in any other offence as that would be against the purport of the provision.

TheSingle judge at the Bombay High Court rather went one step ahead and wrote – “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.”

Advocate Namit Saxena further submitted that recently, the Allahabad High Court dealt with the issue. The final order dated 09.12.2022 passed by the Allahabad High Court in Rajesh Kumar Sharma v CBI [Criminal Misc Anticipatory Bail Application u/s 438 CrPC No. – 4633/2022] reflects that the Bombay High Court’s decision in Alnesh Akil Somji was not noted and the Ld. Single judge chose to follow the decision of the Rajasthan High Court in Sunil Kallani and held that as the applicant was in custody in connection with another case, the anticipatory bail application was not maintainable.

However in facts and circumstances of the present case, it was submitted that the petitioner Tejesh Suman was taken into custody and subsequently has been released on regular bail therefore the petition had become infructuous. However, the Supreme Court ordered that the impugned order shall not be treated as precedent for the petitioner for his other pending matters. The question of law was kept open to be decided in an appropriate case.

CASE TITLE: TEJESH SUMAN VERSUS THE STATE OF RAJASTHAN