In Criminal Appeal No. 2501 of 2024, the Supreme Court of India addressed whether an application for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 (CrPC), is maintainable when the accused is already in judicial custody for a different case. The appeal arose from a Bombay High Court judgment that permitted the respondent, already in custody for one case, to seek anticipatory bail in another.
The Court while dealing with the above Issue, clarified that anticipatory bail is a statutory right under Section 438 of the CrPC rather than a constitutional or fundamental right.
The key issue was whether a person already in custody for one offence could have a “reason to believe” they might be arrested for another offence. The Court affirmed this possibility, noting that the individual could be re-arrested either immediately upon release or through formal procedures while still in custody.
Emphasizing the importance of procedural fairness and personal liberty under Article 21 of the Constitution, the Court rejected the argument that a subsequent arrest does not add to the individual’s humiliation. It underscored that each arrest contributes to the person’s distress and social stigma, thereby compounding the impact on their liberty.
The Supreme Court went on to assert that an accused can seek anticipatory bail for a different offence even while in custody for another. It found no statutory or procedural bar to such applications and emphasized that denying this right would contravene the principles of fairness and personal liberty. The appeal was therefore dismissed, with the Bombay High Court directed to decide the anticipatory bail application based on its merits.
