DHANRAJ ASWANI versus AMAR S. MULCHANDANI & ANR.

Citation: [2024] 9 S.C.R. 257 · Decided: 09-09-2024 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Dismissed

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Judgment (excerpt)

[2024] 9 S.C.R. 257 : 2024 INSC 669
Dhanraj Aswani 
v. 
Amar S. Mulchandani & Anr.
(Criminal Appeal No. 2501 of 2024)
09 September 2024
[Dr. Dhananjaya Y. Chandrachud, CJI,  
J.B. Pardiwala* and Manoj Misra, JJ.]
Issue for Consideration
Whether an application for anticipatory bail under Section 438 
of the Code of Criminal Procedure, 1973 is maintainable at the 
instance of an accused while he is already in judicial custody in 
connection with his involvement in a different case.
Headnotes†
Code of Criminal Procedure, 1973 – s.438 – Accused already in 
judicial custody in connection with one case, if can apply for 
anticipatory bail in a different case – Maintainability of such 
anticipatory bail applications – Divergent opinions expressed 
by different High Courts:
Held: An anticipatory bail application filed at the instance of 
an accused already in judicial custody in a different offence is 
maintainable – 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 – Once he is arrested, the only remedy available to 
him is to apply for regular bail either u/s.437 or s.439, as the case 
may be – There is no express or implied restriction in the CrPC or 
in any other statute that prohibits the Court of Session or the High 
Court from entertaining and deciding an anticipatory bail application 
in relation to an offence, while the applicant is in custody in relation 
to a different offence – No restriction can be read into s.438 to 
preclude an accused from applying for anticipatory bail in relation 
to an offence while he is in custody in a different offence, as that 
would be against the purport of the provision and the intent of the 
legislature – The only restriction on the power of the court to grant 
anticipatory bail u/s.438 is the one prescribed u/s.438(4) and in 
other statutes like the Scheduled Castes and Scheduled Tribes 
(Prevention of Atrocities) Act, 1989, etc. – While a person already 
* Author
258
[2024] 9 S.C.R.
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in custody in connection with a particular offence apprehends arrest 
in a different offence, then, the subsequent offence is a separate 
offence for all practical purposes – Thus, all rights conferred by 
the statute on the accused as well as the investigating agency in 
relation to the subsequent offence are independently protected – 
For the purpose of interrogation/investigation in an offence, the 
investigating agency can seek remand of the accused whilst he 
is in custody in connection with a previous offence so long as no 
order granting anticipatory bail has been passed in relation to the 
subsequent offence – Under s.438, the pre-condition for a person 
to apply for pre-arrest bail is a “reason to believe that he may be 
arrested on an accusation of having committed a non-bailable 
offence” – Therefore, the only pre-condition for exercising the 
said right is the apprehension of the accused that he is likely to 
be arrested – Custody in one case does not have the effect of 
taking away the apprehension of arrest in a different case – Right 
of an accused to protect his personal liberty u/Article 21 of the 
Constitution of India with the aid of the provision of anticipatory 
bail u/s.438 cannot be defeated or thwarted without a valid  
procedure established by law – Such procedure should also pass 
the test of fairness, reasonableness and manifest non-arbitrariness 
u/Article 14. [Paras 60, 66]
Code of Criminal Procedure, 1973 – s.46 – ‘Arrest how 
made’– “reason to believe” – Prisoner Transit Warrant (P.T. 
Warrant) u/s.267 – “other proceedings” – Whether a person, 
while in custody for a particular offence, can have a “reason 
to believe” that he may be arrested in relation to some other 
non-bailable offence – High Court of Rajasthan in Sunil Kallani 
reasoned that once a person is taken in custody in relation to 
an offence, thereafter it is not possible to arrest him in relation 
to a different offence as one of the essential conditions for 
arrest is placing the body of the accused in custody of the 
police authorities by means of actual touch or confinement – 
As there cannot be any actual touch or confinement while a 
person is in custody, he cannot have a “reason to believe” 
that he may be arrested in relation to a different offence:
Held: Such view not agreed with – There are two fundamental 
fallacies in the reasoning adopted by the Rajasthan High Court – 
First, 

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