In a recent ruling, a single-judge bench of Justice Shashikant Mishra ruled that a person who has been under arrest in a case can seek anticipatory bail in another case.
The background of the case is as follows:
Several applications have been filed before the honorable court seeking anticipatory bail and the applications involve a question of law, ‘Whether an application for anticipatory bail is maintainable at the instance of a person who is already in custody in connection with a different case.’
On the aforementioned matter, the parties have addressed the Court and made extensive arguments. Leading the arguments on behalf of every petitioner was Mr. S.C. Mohapatra, a distinguished senior counsel. He mainly contended that liberty, one of the most cherished goals of the Constitution and one that is guaranteed by Article 21, must be preserved at all costs. The petitioner is still entitled to pursue a protection of liberty in relation to another matter that has been filed against him, even though he is now in detention. Mr. Mohapatra contended that by examining the legislative background of the provision found in Section 438 of the Cr.P.C., it was not present in the 1889 Code of Criminal Procedure. It was included in the 1973 Code of Criminal Procedure specifically to safeguard the rights of individuals who might be exposed to unwarranted harassment or humiliation upon being taken into custody. The provision gives the Court of Session and the High Court wide powers to defend an individual’s liberty; this authority cannot be restricted or limited in any way other than how expressly stated in the provision itself. Mr. Mohapatra also argues that, absent any special circumstances allowed by other laws, such as the SC & ST (POA) Act, anyone accused of any other crime has the right to request protection from the police’s arbitrary use of their authority to arrest.
On the other hand, Mr. S.K. Misra citing the language used in Section 438 of the CrPC, argued that it is evidently not possible to use the authority to protect an individual in the event of their arrest in a situation where that individual has already been detained, even if it was related to a different offense. He contends that only when someone is arrested does the Section 438 order become operative. If that’s the case, he is released on bail. However, it is evident that an individual who is already in custody for another crime cannot be arrested or detained again. He can only be remanded on the order of the concerned Court. Mr. Mishra ended his arguments by stating that, the power granted by Section 438 cannot be used to prevent the remand of an accused person who is currently in custody in connection with a matter on this Court’s orders.
After hearing arguments of both the parties, the court observed the following:
Both the parties have cited various precedents to support their arguments. This court preferred to conduct an independent study of the issue with reference to the Act before moving on to an analysis of the rulings mentioned by the parties. Firstly, as provided by Article 21, this Court would remind itself of the salutary principle that liberty is one of the most cherished goals of our constitution. As stated by learned senior counsel, the previous Code (Cr.P.C. 1889) did not contain a provision giving the Court the authority to grant bail prior to an arrest. Only the new Code (Cr.P.C.1973) granted such authority. As can be inferred from the wording used in the aforementioned law, the legislative intent was to shield a person from the shame of being arrested and thus being subjected to unwarranted humiliation and loss of dignity. There are limitations on the use of the power granted by Section 438 given within the provision, as the learned senior counsel has contended. Therefore, the authority granted by Section 438 cannot be limited, with the exception of the circumstances listed within the provision.
Regarding granting anticipatory bail to persons who are already in custody, the court stated ‘The investigating agency, if it feels necessary for the purpose of interrogation/investigation can seek remand of the accused whilst he is in custody in connection with the previous case and if such prayer is allowed, the accused can no longer pray for grant of anticipatory bail as then he would be technically in custody in connection with the subsequent case also. Then, he can only seek regular or custody bail’ which contradicts the intent of the relevant provision in issue. Hence, the Court granted anticipatory bail to the petitioners who are accused.
CAUSE TITLE: Sanjay Kumar Sarangi and Ors vs State and Anr
WRITTEN BY V.ANGELIN SUBIKSHA, SECOND YEAR LLB STUDENT, GOVERNMENT LAW COLLEGE, VELLORE, AN INTERN UNDER LEGAL VIDHIYA
REFERENCES:
Sanjay Kumar Sarangi and Ors vs State and Anr
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