S.438 CrPC | Accused In Custody Not Precluded From Seeking Anticipatory Bail In Another Case: Bombay High Court

An accused in custody in one case can seek anticipatory bail in another case under Section 438 of the CrPC, the Bombay High Court has held and granted pre-arrest bail to an accused in a forgery case.

“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,” Justice NJ Jamadar held.

The judge relied on the High Court’s views in Alnesh Akil Somji V/s. State of Maharashtra which held that an earlier judgement of the SC in Narinderjit Singh Sahni and Anr. V/s. Union of India and Ors. does not hold in very clear terms that a person arrested in one offence was barred from seeking anticipatory bail in another offence.

Also Read: Anticipatory Bail Application Maintainable By Accused Who Is In Custody In Another Crime? Supreme Court Leaves Question Of Law Open

The applicant sought pre-arrest bail in connection with a case registered with Pimpri Police Station for offences punishable under Sections 420, 406, 409, 465, 467, 468, 471 read with Section 34 of the Indian Penal Code. The applicant was already in prison in an ECIR from 2021.

The intervenor's counsel Advocate Naresh Shamnani objected to the maintainability of the application. He claimed that a person already in custody is not entitled to seek the relief of pre-arrest bail in connection with other crimes against him.

He cited Narinderjit Singh Sahni’s case and two other judgements of the Rajasthan High Court and Allahabad High Court. He argued that the main reason for granting pre-arrest bail is to insulate someone from arrest as humiliation and injury a byproduct of such an arrest. But once the person is arrested, this question doesn’t arise.

However, Senior Advocate Aabad Ponda along with Advocate Shantanu Phanse submitted that an arrest in one case could never be construed to preclude a person from seeking pre-arrest bail in another case, especially where he is threatened with unjustified arrests in several cases.

“Taking such a view would jeopardise the cherished personal liberty irredeemably,” according to Ponda. Moreover, the High Court was bound by the decision in Alnesh Akil Som’s case as it was handled by a coordinate bench.

After hearing the submissions and analysing all the judgements the court opined there are no restrictions on considering an application for bail under Section 438 (4) of the CrPC. The only condition is the applicant’s apprehension of being arrested, the court said.

“It is the reasonability of belief of arrest in connection with a non-bailable offence that furnishes the test for maintainability of the application for pre-arrest bail unless there is a statutory restriction in other enactments,” it added.

The court underscored the possibility of an accused repeatedly being arrested in one case after another with the court's hands being tied if the complainant’s proposition was accepted.

The judge distinguished Narinderjit Singh Sahni’s case and observed that the petitioner was seeking blanket anticipatory bail in that case.

“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.”

Case Title - Amar S. Mulchandani vs State of Maharashtra

Case Number - ANTICIPATORY BAIL APPLICATION NO.2801 OF 2023

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