Rajendra Prasad Mohapatra

The Orissa High Court has affirmed that an accused person, who is already in jail in connection with a criminal case, can still seek anticipatory bail for another case without any legal impediment.

As per a report published in Bar and Bench, Justice Shashikant Mishra, clarified that such anticipatory bail, if granted, would be effective only if the accused is arrested in connection with the subsequent case after his release from custody in the previous case.

The Court’s judgment on April 10 stated that the Code of Criminal Procedure does not contain any provision that deprives the accused of the right to seek liberty or prevents the investigating agency from probing the case solely because the accused is already in custody for another case. 

It further stated that there is no statutory restriction for an accused who is in custody in connection with one case to seek anticipatory bail in another case registered against them.

The Court made the observation while addressing a series of petitions filed by individuals who were already in jail for their alleged involvement in one criminal case but who later sought anticipatory bail in connection with separate criminal cases registered subsequently against them.

The Court highlighted that the Code of Criminal Procedure (CrPC) lacks a specific provision addressing the scenario where an individual who is already in custody in connection with one case is sought to be re-arrested or remanded in another case.

In such a scenario, the judge observed that the accused can only be remanded in connection with the subsequent case based on court orders.

“Can the order of the remand in such a situation be equated with an act of arrest? ... Since he is already arrested and in custody, he can only be taken on remand for the purpose of investigation, if required ... If such order granting remand is passed, it would no longer be open to the accused to seek anticipatory bail but he can seek regular bail,” the Court explained.

Another potential scenario is when an individual who is arrested in one case is subsequently released from prison, only to find themselves required for arrest again in connection with a separate criminal case.

The Bench proceeded to conclude that there is no legal barrier preventing such an accused person from applying for anticipatory bail even before their release from prison.

The Court held that all rights conferred on the accused, as well as the investigating agencies, are independently protected in each separate case.

“As it is not possible to arrest a person already in custody, it follows that when, on being released from custody in the former case, he is sought to be arrested in the new case, there is no reason why he shall be restrained from moving the Court beforehand to arm himself with necessary protection in the form of anticipatory bail to protect himself from such a situation,” the Court further said.

The Court also said that investigating agencies have the option to approach the concerned court seeking the remand of accused persons already in jail if their custody is deemed necessary in connection with another case.

The Court observed that if such a request for remand is approved, then the only recourse left for the accused to secure release from prison is to file a regular bail plea.

The Court also emphasized that the legislative intent behind Section 438 (anticipatory bail) of the CrPC is to safeguard individuals from the disgrace of arrest and from being subjected to undue humiliation and loss of dignity.

The Court held that their anticipatory bail applications were maintainable and allowed the same.