Section 438 CrPC | Accused Can Seek Anticipatory Bail In One Case While Being In Custody For Another: Bombay HC

The Bombay High Court held that an accused who is in custody for one case can still seek anticipatory bail under Section 438 of the Criminal Procedure Code (CrPC) in another case.

The court said that the purpose and intent for pre-arrest bail is to protect people from unjustified arrest.

Justice N.J. Jamadar observed, " I am impelled to hold that the fact that the applicant is already in custody in one case does not preclude him from seeking prearrest bail in connection with another case in which he apprehends arrest”.

Senior Advocate Aabad Ponda appeared for the Applicant and Advocate Naresh Shamnani appeared for the Intervener.

The Petitioner was the Managing Director of a group of companies that had accepted deposits from individuals but failed to repay those deposits. The Petitioner faced prosecution as the principal accused in eight cases and 19 First Information Reports (FIRs) were filed against him. The Applicant filed an Anticipatory Bail Application for a case registered for the offences punishable under Sections 420, 406, 409, 465, 467, 468, and 471 read with Section 34 of the Indian Penal Code (IPC). The Intervener though filed objections regarding the maintainability of on the ground that a person who is already in custody is not entitled to seek a relief of pre-arrest bail in connection with the other crimes which have been registered against him.

The Court referred to the Supreme Court Judgment in the cases of Alnesh Akil Somji v State of Maharashtra [2002 0 ALL M.R. (Cri.) 61] and Narinderjit Singh Sahni and Anr. v Union of India and Ors [(2002) 2 SCC 210] and noted that a person who is already in custody in one case can still seek pre-arrest bail in another case under Section 438 CrPC.

The Court observed that, “With respect, I am unable to persuade myself to agree with the aforesaid justification to deprive a person, under arrest, from seeking pre-arrest bail in another case. It would be suffice to note that in the case of Gurbaksh Singh Sibbia (supra) the Supreme Court had clarified that though a direction for the release of the applicant on bail, in the event of his arrest would generally be made where the accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, yet the converse of the said proposition was not necessarily true. The Supreme Court emphasised, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides”.

The Court observed that a person can seek pre-arrest bail in another case even when they are already in custody in another case. The Court asserted that the purpose of pre-arrest bail is to protect people from unjustified arrest, and this purpose would be still relevant even if the person is already in custody for another offense.

“I am, thus, in complete agreement with the view recorded by this Court in the case of Alnesh Somji (supra) that the judgment in Narinderjit (supra) does not hold in very clear terms that a person arrested in one offence cannot seek relief provided under Section 438 in another offence merely on the ground that he stands arrested in another distinct offence”, the Court noted.

Accordingly, the Court dismissed the objections, granted interim protection, and listed the matter for November 9.

Cause Title: Amar S. Mulchandani v The State of Maharashtra (2023:BHC-AS:33240)

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