The Supreme Court on Monday ruled that a person in custody for one offence can still apply for anticipatory bail in relation to a different offence, asserting that the right to personal liberty under Article 21 of the Constitution must be preserved unless explicitly restricted by law.

The decision by a three-judge bench came as a response to legal uncertainty over whether an individual already incarcerated for one crime could seek protection from arrest in another. The judgment sets a crucial precedent for cases where individuals, already entangled in legal troubles, seek to protect their liberty against further arrests, underscoring the judiciary’s role in ensuring that procedural fairness is upheld in every instance of criminal prosecution.

The bench, led by Chief Justice of India (CJI) Dhananjaya Y Chandrachud and comprising justices JB Pardiwala and Manoj Misra, held that there is no “express or implied restriction” in the Criminal Procedure Code (CrPC) or any other statute that prohibits courts from hearing anticipatory bail applications in such situations.

In the detailed judgment, the court underscored that restricting an individual’s ability to seek anticipatory bail while in custody for another offence would run counter to the purpose of Section 438 of the CrPC (now replaced by a similar provision under the Bharatiya Nagarik Suraksha Sanhita).

“No restriction can be read into Section 438 of the CrPC to preclude an accused from applying for anticipatory bail in relation to an offence while he is in custody in a different offence,” stated the court, adding that doing so would be “against the purport of the provision and the intent of the legislature.”

The judgment, authored by justice Pardiwala, further highlighted that procedural fairness is essential in safeguarding personal liberty. “The right of an accused to protect his personal liberty within the contours of Article 21 of the Constitution of India with the aid of the provision of anticipatory bail… cannot be defeated or thwarted without a valid procedure established by law,” it held. The bench emphasised that such a procedure must be reasonable, fair, and non-arbitrary, in line with Article 14 (equality and equal protection) of the Constitution.

In separate recent judgments, the Supreme Court has reiterated that bail is the rule, and jail an exception, even in cases filed under stringent laws such as the Unlawful Activities Prevention Act (UAPA) and Prevention of Money Laundering Act (PMLA). The apex court has also cautioned subordinate courts to be careful while staying bail orders.

The court was hearing an appeal against a 2023 judgment of the Bombay high court that had held a pre-arrest bail plea of an accused to be maintainable in a cheating and forgery case even though he was already in custody in a money laundering case.

The 74-page judgment of the Supreme Court also delivered a strong critique of the argument that once a person is in custody for one offence, they no longer suffer the humiliation of being arrested for another.

“Each arrest a person faces compounds their humiliation and ignominy…The initial arrest itself often brings a wave of social stigma and personal distress, as the individual struggles with the implications of their legal predicament. When a subsequent arrest occurs, it intensifies this emotional and social burden, amplifying the perception of their criminality and reinforcing negative judgments from society,” it said.

The court also ruled out reading any additional restrictions into Section 438, which provides for anticipatory bail. It noted that Parliament has clearly outlined when anticipatory bail can be restricted, such as under Section 438(4) of the CrPC, which applies to specific laws like the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

“The court should not try to read any other restriction as regards the exercise of its power to consider the plea for grant of anticipatory bail,” said the court, warning against “judicial legislation” that might attempt to impose such limitations without a legislative mandate.

The ruling also provided clarity on procedural aspects related to custodial arrests. The court explained that a person can be arrested in connection with a new offence even while they are in custody for another offence, provided that the proper legal procedures, such as obtaining a Prisoner Transit Warrant (PT Warrant), are followed.

However, if an order granting anticipatory bail for the subsequent offence is obtained, the investigating agency cannot seek the remand of the accused for that offence. “If an order granting anticipatory bail in relation to the subsequent offence is obtained by the accused, it shall no longer be open to the investigating agency to seek remand of the accused in relation to the subsequent offence,” the court held.

Concluding its ruling, the Supreme Court reaffirmed that Section 438 of the CrPC was introduced to protect personal liberty in a democratic society. “The purpose behind incorporating Section 438 in the CrPC was to recognise the importance of personal liberty and freedom in a free and democratic country,” the bench said. It added that the provision aligns with the fundamental principle that every individual is presumed innocent until proven guilty.