Case Title: Sanjay Kumar Sarangi vs State

A single bench of Justice Shashikant Mishra of the Orissa High Court has underscored that an individual already incarcerated in connection with a criminal case may seek anticipatory bail for another case without legal impediment.

The bench stipulated that the granted anticipatory bail would solely be applicable if the accused faces arrest in the subsequent case following their release from custody in the prior matter.

“There is no provision in the Code (Code of Criminal Procedure) that takes away the right of the accused to seek his liberty or of the investigating agency to investigate into the case only because he is in custody in another case … There is no statutory bar for an accused in custody in connection with a case to pray for grant of anticipatory bail in another case registered against him”.

The Court’s observation pertained to a series of petitions filed by individuals who were incarcerated for their alleged participation in a particular criminal case but subsequently sought anticipatory bail for separate criminal cases filed against them.

The Court highlighted the absence of a specific provision in the Code of Criminal Procedure addressing situations where an individual in custody for one case faces re-arrest or remand in another case.

In such instances, the accused can only be remanded in connection with the subsequent case upon court directives, as emphasized by the judge.

“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”.

An alternative scenario involves an individual who is arrested in one instance, then released from incarceration, only to face another arrest in relation to a different criminal matter. The court determined that there exists no legal impediment preventing such an accused individual from seeking anticipatory bail even prior to their release from custody. It was established by the Bench that the rights granted to both the accused and the investigating authorities are safeguarded autonomously in each distinct case.

The bench said “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 emphasized that investigative agencies have the authority to approach the relevant court to request the transfer of accused individuals already incarcerated if their presence is necessary for another case. Should such a request for transfer be approved, the sole recourse for the accused to secure release from imprisonment is to lodge a standard bail application, as noted by the court.

“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,”.

The Court emphasized the legislative intent of Section 438 (anticipatory bail) of the CrPC as a means to shield individuals from the disgrace of unwarranted arrest, safeguarding them from undue humiliation and loss of dignity.

 The Court further underscored the heightened necessity for such protection, especially in cases where individuals face false allegations. Following this clarification of legal principles, the Court proceeded to grant anticipatory bail to the accused-petitioners before it.

In its assessment, the Court noted the absence of any court-ordered remand for the accused petitioners in the subsequent cases filed against them.

Consequently, the Court deemed their applications for anticipatory bail admissible and granted the same.