Applicant’s Custody in One Case Doesn’t Bar Pre-Arrest Bail in Another Case | HC

Case Details: Amar S. Mulchandani v. State of Maharashtra - [2024] 167 taxmann.com 495 (HC-Bombay)

Judiciary and Counsel Details

• N.J. Jamadar, J.
• Aabad Ponda, Sr. Adv., Shantanu Phanse, Sudhanva S. Bedekar, Ms Ilsa Shaikh for the Applicant.
• Naresh Shamnani and Ms. Minal Chandnani & Atul Bhas for the Respondent.

Facts of the Case

In the instant case, the applicant came to be arrested in connection with ECIR. While in custody, he apprehended arrest in connection with the complaint registered against him at the instance of the respondent for offences punishable under Sections 420, 406, 409, 465, 467, 468, and 471 read with Section 34 of the Indian Penal Code.

In such circumstances, he prayed for anticipatory bail before the High Court in connection with the said criminal case. The Respondent raised an objection to the maintainability of the application for pre-arrest bail on the proposition that as the applicant was already in custody in connection with ECIR, he could not pray for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973.

It was noted that the proposition is fraught with incalculable harm to personal liberty. Further, a person under arrest can be deprived of statutory remedy, thereby jeopardising his personal liberty by employing various devices.

It is quite possible that such a person can be arrested in another case the moment he is released in the first case, or there is an impending possibility of release on account of default in filing a charge sheet in the first case, or the said person can be arrested in multiple prosecutions lodged against him by seeking production warrant under Section 267 of the Code.

High Court Held

The High Court observed that the object of Section 438 of the Code of Criminal Procedure, 1973, would be frustrated if the blanket proposition is laid down that the moment a person is arrested in one case, he is debarred from seeking pre-arrest bail in another case till he secures his release on regular bail in the first case.

Further, in the case of Sunil Kallani (supra), the Supreme Court observed that the grant of anticipatory bail is essential to prevent a concerned person from litigation initiated with the object of injuring and humiliating the applicant by having him so arrested and for a person who stands already arrested, such a ground is not available.

The High Court held that the conspectus of the aforesaid discussion was that there was no reason to take a different view of the matter. Thus, the fact that the applicant was already in custody in one case did not preclude him from seeking prearrest bail in connection with another case in which he apprehended arrest. Resultantly, objection to the maintainability of an application on the said count stands disallowed.

List of Cases Reviewed

• Narinderjit (supra) (Para 40) distinguished
• Alnesh Somji (supra)(Para 44) followed