The Supreme Court recently adjudicated upon the issue of whether an anticipatory bail application is maintainable by an accused who is in judicial custody in relation to another crime.

The Bench of Justice Surya Kant and Justice V. Ramasubramanian of the Apex Court had an occasion to decide the issue authoritatively in Tejesh Suman v State of Rajasthan.

In this case, the Rajasthan High Court had vacated the interim protection awarded to the petitioner because he was taken into custody in another matter. The Petitioner was accused of committing offences under Sections 420, 467, 468, 471, and 120-B IPC.

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.

It was contended by the Advocate of the accused that the Petitioner-Accused had since been released on regular bail in this case. It was further submitted that the impugned order was likely to be relied upon by the High Court for cancellation of interim bail granted to the accused in other cases.

The Petitioner further placed reliance on the judgment of the Rajasthan High Court in the case of Sunil Kallani v State of Rajasthan [CRLMB – 9155/2019], where it was held “….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.

While the Bombay High Court in the case of Alnesh Akil Somji v State of Maharashtra [Anticipatory Bail Application No. 2857 of 2021 disagreed to confirm the view of the Rajasthan High Court in Sunil Kallani,(supra) 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.

The Bench after noting the contentions of the Counsel, observed –

“Since the instant petition has been rendered infructuous, we dispose of the same as such, but with a clarification that the impugned order being interlocutory in nature, shall not be taken as a precedent for cancellation of bail granted to the petitioner in other cases. The pending cases shall be decided by the High Court as per its own merits and in accordance with law. However, the question of law is kept open which would be decided in an appropriate case.”

Cause Title - Tejesh Suman v. The State of Rajasthan

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