Case Note & Summary
The applicant, Amar S. Mulchandani, filed an anticipatory bail application under Section 438 CrPC in connection with C.R.No.806 of 2019 registered at Pimpri Police Station for offences under Sections 420, 406, 409, 465, 467, 468, 471 read with 34 IPC. The applicant was already in custody in ECIR No.10 of 2021. The first informant/intervener raised an objection to the maintainability of the anticipatory bail application, arguing that a person already in custody cannot seek pre-arrest bail. The intervener relied on the Supreme Court decision in Narinderjit Singh Sahni v. Union of India and judgments of the Rajasthan and Allahabad High Courts in Sunil Kallani v. State of Rajasthan and Rajesh Kumar Sharma v. C.B.I., which purportedly held that a person already arrested is not entitled to pre-arrest bail. However, a learned Single Judge of the Bombay High Court in Alnesh Akil Somji v. State of Maharashtra had taken a contrary view, holding that there is no embargo on filing an anticipatory bail application even when the person is under arrest in another crime. The court heard arguments on maintainability. The intervener's counsel submitted that Alnesh Somji did not correctly appreciate the ratio of Narinderjit Singh Sahni. The court, after considering the submissions, held that the application is maintainable. The court noted that Section 438 CrPC does not contain any express bar against a person in custody in another case from applying for anticipatory bail. The court distinguished Narinderjit Singh Sahni, stating that it dealt with the validity of certain provisions and did not lay down a blanket prohibition. The court followed the view in Alnesh Akil Somji and held that the application is maintainable. The court did not decide the merits of the bail application at this stage.
Headnote
A) Criminal Procedure - Anticipatory Bail - Maintainability - Section 438 CrPC - Person in custody in another crime can still seek pre-arrest bail for a different offence - The court held that there is no express bar in Section 438 CrPC preventing a person already arrested in one case from applying for anticipatory bail in another case. The decision in Narinderjit Singh Sahni v. Union of India does not lay down such a blanket prohibition. The court followed Alnesh Akil Somji v. State of Maharashtra and held the application maintainable. (Paras 4-7)
Issue of Consideration
Whether an application for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 is maintainable when the applicant is already in custody in connection with another crime.
Final Decision
The court held that the anticipatory bail application is maintainable. The court did not decide the merits of the bail application at this stage.
Law Points
- Maintainability of anticipatory bail under Section 438 CrPC when applicant is in custody in another crime
- Interpretation of Section 438 CrPC
- Distinction between arrest and custody
- No express bar in Section 438 CrPC
Case Details
2023 LawText (BOM) (10) 70
Anticipatory Bail Application No.2801 of 2023 with Interim Application No.3704 of 2023
Mr. Aabad Ponda, Senior Advocate with Mr. Shantanu Phanse, Mr. Sudhanva S. Bedekar, Ms. Ilsa Shaikh for Applicant; Mr. Naresh Shamnani with Ms. Minal Chandnani for Intervener; Mr. Atul Bhas, PI, EOW CID Pune
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Nature of Litigation
Anticipatory bail application under Section 438 CrPC in a criminal case involving economic offences.
Remedy Sought
The applicant sought pre-arrest bail in connection with C.R.No.806 of 2019.
Filing Reason
The applicant apprehended arrest in the said crime and was already in custody in another case (ECIR No.10 of 2021).
Previous Decisions
The first informant raised an objection to maintainability based on the Supreme Court decision in Narinderjit Singh Sahni and judgments of Rajasthan and Allahabad High Courts. The Bombay High Court in Alnesh Akil Somji had held such applications maintainable.
Issues
Whether an application for anticipatory bail under Section 438 CrPC is maintainable when the applicant is already in custody in connection with another crime.
Submissions/Arguments
Intervener's counsel (Mr. Shamnani) argued that a person already in custody cannot seek pre-arrest bail, relying on Narinderjit Singh Sahni and the Rajasthan and Allahabad High Court decisions.
Applicant's counsel (Mr. Ponda) argued that there is no bar under Section 438 CrPC and that the application is maintainable, relying on Alnesh Akil Somji.
Ratio Decidendi
Section 438 CrPC does not contain any express bar preventing a person who is already in custody in another crime from applying for anticipatory bail. The decision in Narinderjit Singh Sahni v. Union of India does not lay down such a blanket prohibition. Therefore, an application for pre-arrest bail under Section 438 CrPC is maintainable even if the applicant is under arrest in a different case.
Judgment Excerpts
In this backdrop, the first informant – intervener has raised an objection to the maintainability of the application for pre-arrest bail 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.
As the issue of maintainability is sought to be raised on the strength of the decision of the Supreme Court in the case of Narinderjit Singh Sahni and Anr. V/s. Union of India and Ors. and the judgments of the learned Single Judges of Rajasthan and Allahabad High Courts... which seem to follow the decision of the Supreme Court in the case of Narinderjit (supra), to lay down the proposition that a person who is already arrested is not entitled to seek pre-arrest bail under Section 438 of the Code of Criminal Procedure, 1973 and a learned Single Judge of this Court in the case of Alnesh Akil Somji V/s. State of Maharashtra struck a discordant note to hold that there is no embargo to prefer an application for pre-arrest bail even when a person is under arrest in another crime, the learned Counsel for the parties were heard on the point of maintainability of the application.
Procedural History
The applicant filed Anticipatory Bail Application No.2801 of 2023 under Section 438 CrPC in connection with C.R.No.806 of 2019. The first informant/intervener filed Interim Application No.3704 of 2023 raising an objection to maintainability. The court heard arguments on maintainability and passed the order on 31 October 2023.
Acts & Sections
- Code of Criminal Procedure, 1973 (CrPC): Section 438
- Indian Penal Code, 1860 (IPC): Sections 420, 406, 409, 465, 467, 468, 471 read with Section 34
