The Supreme Court on Monday said in a judgement that an individual arrested in one case can apply for anticipatory bail in another case, reported Live Law.

The right of a person accused of a crime to personal liberty, through anticipatory bail, cannot be thwarted without a valid procedure established by law, the court said.

“An accused is entitled to seek anticipatory bail in connection with an offence, so long as he is not arrested in relation to that offence,” the court said. “Once he is arrested, the only remedy available to him is to apply for regular bail.”

A bench led by Chief Justice DY Chandrachud, with Justices JB Pardiwala and Manoj Misra, was hearing a petition concerning the legal question of whether anticipatory bail can be granted to a person already in custody in a separate case.

The bench pointed out that the Code of Criminal Procedure does not prohibit sessions courts or high courts from “deciding an anticipatory bail application in relation to an offence while the applicant is in custody in relation to a different offence”.

“The only restriction on the power of the Court to grant anticipatory bail under Section 438 CrPC is one prescribed under sub-section (4) of Section 438 CrPC and in other statutes like Scheduled Castes/Scheduled Tribes Prevention of Atrocities Act etc.,” it said.

Section 438 of the now-replaced criminal code details the rules for granting bail to a person apprehending arrest. The court added that when a person in custody for one offence apprehends arrest for another, the subsequent offence is considered a separate matter.

It said that investigating agencies can seek to interrogate a person in connection with their first offence while they are already in custody. However, if the individual is granted anticipatory bail in a subsequent offence, then “it shall no longer be open to the investigating agency to seek remand of the accused in relation to the subsequent offence”.

Under Section 438 of the criminal code, the only prerequisite for an accused person to seek anticipatory bail is a belief that they are likely to be arrested, said the judgement.

“Custody in one case does not have the effect of taking away the apprehension of arrest in another case,” it said.

Also read: Why are trial courts less inclined to give bail compared to High Courts and the Supreme Court?