Jailed accused can seek anticipatory bail in second case, says apex court

An accused, who is in custody in a case, is entitled to seek anticipatory bail in another as long as he is not arrested in relation to that offence, the Supreme Court ruled on Monday.

“In our opinion, no useful purpose will be served by depriving the accused of exercising his statutory right to seek anticipatory bail till his release from custody in the first offence,” a Bench led by CJI DY Chandrachud said.

It noted that there was no express or implied restriction in the statute that prohibited sessions courts or high courts from deciding an anticipatory bail application in a case, while the applicant was in custody in connection with a different case.

“An accused is entitled to seek anticipatory bail in connection with an offence so long as he is not arrested in relation to that offence. Once he is arrested, the only remedy available to him is to apply for regular bail either under Section 437 or Section 439 of the Code of Criminal Procedure (CrPC), as the case may be,” said the Bench, which also included Justice JB Pardiwala and Justice Manoj Misra.

“No restriction can be read into Section 438 of the CrPC to preclude an accused from applying for anticipatory bail in relation to an offence while he is in custody in a different offence, as that would be against the purport of the provision and the intent of the legislature,” it said.

The top court sought to emphasise that the purpose behind incorporating Section 438 in the Code of Criminal Procedure (CrPC), which deals with direction for grant of bail to a person apprehending arrest, was to recognise the importance of “personal liberty and freedom in a free and democratic country”.

The judgement – which came on an appeal arising out of an October 2023 verdict of the Bombay High Court – settles the law on the issue as various high courts had given divergent rulings on it. The top court said its registry would forward a copy of its judgment to all 25 High Courts across India.