Supreme Court Leaves Question Of Law Open: Anticipatory Bail Application Maintainable By Accused Who Is In Custody In Another Crime?

The Supreme Court in the case Tejesh Suman versus The State Of Rajasthan observed and stated that it being a settled law that where the accused has already been arrested, the anticipatory bail application would not lie in that particular case, the question being still that if in another case a person is arrested other than for which she had already been arrested whether in the case the anticipatory bail would be maintainable. The Supreme Court is to decide the issue in the case Tejesh Suman v State of Rajasthan, wherein the Rajasthan High Court vacated the interim protection awarded to the petitioner because the petitioner in another matter was taken into custody. The counsel, Advocate Namit Saxena appearing for the accused submitted that there being a divergent views by different High Courts on the said issue. In the case Sunil Kallani v State of Rajasthan, it has been observed by the High Court of Rajasthan that the person who is already being in a custody cannot have reasons to believe that the petitioner shall be arrested as he stands already being arrested. In the said view, the bail precondition of bail application to be moved under Section 438 of Code of Criminal Procedure, thus, the reason to believe that he may get arrested do not survive since a person is already being arrested in another case and is in custody whether before the police or in jail. Further, it has been held by the court that the anticipatory bail would not lie and would not be maintainable if a person is already being arrested and is in custody of police or judicial custody in relation to the another criminal case which may be for similar offence or for different offences. The Bombay High Court in the case Alnesh Akil Somji v State of Maharashtra, wherein the court disagreed to confirm the view of the Rajasthan High Court in Sunil Kallani, held that First, there is no such bar in Code of Criminal Procedure or any statute which is prohibiting Session or the High Court from entertaining and deciding an anticipatory bail, when such person is already in a police and judicial custody in some other offences and secondly, the restrictions cannot be stretched to include arrest made in any other offence as that would be against the purport of the provision. It has further been submitted by the counsel, Advocate Namit Saxena that the Allahabad High Court dealt with the issue. Therefore, the Allahabad High Court in the case in Rajesh Kumar Sharma v CBI passed the final order dated 09.12.2022, wherein reflecting that the decision of Bombay High Court in the case Alnesh Akil Somji was not noted and the Ld. Single judge chose to follow the decision of the Rajasthan High Court in Sunil Kallani and has held that the applicant was in custody in connection with another case, thus, the anticipatory bail application was not maintainable. While considering the facts and circumstances of the case, before the court it was submitted that the petitioner, Tejesh Suman was taken into custody and subsequently has been released on regular bail therefore the petition had become infructuous. Further, it has been ordered by the Supreme Court that the impugned order shall not be treated as precedent for the petitioner for the other pending matters. Accordingly, the court left the question of law was open which is to be decided in an appropriate case.

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