Can an arrested person seek anticipatory bail in another case when he is in judicial custody? My husband has been arrested in a forgery case while three more cases are registered against him. Police officers are trying to rearrest him when he gets bail from the court. My advocate suggested applying anticipatory bail in other cases to evade arrest.
Asked from: Uttar Pradesh
Your husband has a legitimate apprehension of arrest in the three criminal cases registered against him. Therefore, he is entitled to file an anticipatory bail application even while in judicial custody. The precondition for seeking anticipatory bail is a reasonable apprehension that he may be arrested on accusations of committing a non-bailable offense.
The legal maxim ubi jus ibi remedium—meaning “where there is a right, there is a remedy”—is a fundamental principle of jurisprudence. A Constitution Bench of the Supreme Court in Anita Kushwaha v. Pushap Sudan, (2016) 8 SCC 509, recognized this maxim in the context of access to justice.
When your husband is in judicial custody, he retains the right to access justice and seek remedies available under the law. The remedy of anticipatory bail (pre-arrest bail) is also available to a person already in custody in other non-bailable cases.
The arrest of an individual in one case does not bar them from applying for pre-arrest bail in a different case, as there is no such limitation in the language of Section 482 of the Bhartiya Nagarik Suraksha Sanhita (BNSS).
In Central Bureau of Investigation, Special Investigation Cell-I, New Delhi v. Anupam J. Kulkarni, (1992) 3 SCC 141 the Supreme Court has held that
Even if an accused is in judicial custody in connection with the investigation of an earlier case, the investigating agency can formally arrest him in connection with his involvement in a different case and associate him with the investigation of that other case.
Hence, there is a possibility that the investigating agency can arrest your husband in connection with three other cases. Hence, there is reasonable apprehension of arrest. Pre-condition of anticipatory bail is existing in your case, therefore, entitled to avail anticipatory bail.
You should proceed with filing an anticipatory bail application in the other cases to safeguard your husband’s personal liberty. Section 482 of the BNSS does not impose any restriction on seeking anticipatory bail while in judicial custody. Hence, arrested person can seek anticipatory bail in another pending criminal case.