The Bombay High Court has ruled that an individual who is in custody for one case can still apply for anticipatory bail under Section 438 of the Criminal Procedure Code (CrPC) in a different case. The court emphasized that the primary purpose of pre-arrest bail is to safeguard individuals from unjustified arrests.

Justice N.J. Jamadar expressed that he is compelled to conclude that an individual's current custody in one case should not prevent them from pursuing pre-arrest bail in relation to another case where they fear potential arrest.

The petitioner served as the Managing Director of a group of companies that had collected deposits from individuals but failed to repay them. The petitioner was the primary accused in eight cases, with 19 First Information Reports (FIRs) filed against him. In one of these cases, the applicant submitted an Anticipatory Bail Application, which pertained to offenses under Sections 420, 406, 409, 465, 467, 468, and 471 of the Indian Penal Code (IPC), in conjunction with Section 34 of the IPC.

However, an intervenor raised objections concerning the admissibility of the application, arguing that a person who is already in custody should not be eligible to seek pre-arrest bail for other cases registered against them.

The court cited the Supreme Court judgments 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]. These cases established the principle that an individual who is already in custody in one case is still entitled to seek pre-arrest bail in another case under Section 438 of the Criminal Procedure Code (CrPC).

The Court expressed its disagreement with the reasoning that justifies depriving an arrested person from seeking pre-arrest bail in another case. The Court referred to the case of Gurbaksh Singh Sibbia and noted that the Supreme Court had clarified that while a direction for releasing an applicant on bail in case of an arrest is typically made when the accusation seems to be motivated by ulterior motives, aimed at injuring and humiliating the applicant through an arrest, it is not an absolute rule that anticipatory bail cannot be granted unless the proposed accusation is clearly malicious in intent. In other words, the Court emphasized that there are situations where pre-arrest bail can be considered even without evidence of malicious intent behind the accusations.

The Court noted that an individual has the right to seek pre-arrest bail in a separate case even if they are already in custody for a different offense. The Court emphasized that the primary objective of pre-arrest bail is to safeguard individuals from unwarranted arrests, and this purpose remains valid even if the person is currently in custody for another offense.

The Court expressed its full concurrence with the perspective set forth in the case of Alnesh Somji that the judgment in Narinderjit does not explicitly state that a person arrested in one offense cannot avail the relief provided under Section 438 for a different offense solely based on the fact that they are already in custody for a separate and distinct offense.

In accordance with its findings, the Court rejected the objections, provided interim protection, and scheduled the case for further proceedings on November 9.

Case: Amar S. Mulchandani v The State of Maharashtra, ANTICIPATORY BAIL APPLICATION NO.2801 OF 2023.