Is An Accused's Anticipatory Bail Plea Maintainable If He Is Already In Judicial Custody In Another Crime? –Bombay High Court Rules

Adjudicating a petition for anticipatory bail under section 438 of the Criminal Procedure Code (CrPC), the question before the court was "Whether an anticipatory bail application would be maintainable by an accused who is already arrested and is in magisterial custody in another crime?"

Justice VG Bisht held that neither CrPC nor does any other statute bar the sessions court or the High Court, as the case may be, from deciding the anticipatory bail application of someone already in custody in another offence.

"Accused has every right, even if he is arrested in number of cases, to move(court) in each of offence registered against him irrespective of the fact that he is already in custody but for different offence," the bench observed.

The applications will have to be heard and decided on merits independent of another crime in which he is already in custody, the court further held.

Observing thus, the HC directed re-adjudication of the petitioner's ABA before the Sessions Court.

The court said that the sessions judge failed to interpret section 438 of the CrPC properly. It cautioned judges from giving a different meaning to law provisions under the garb of interpretation.

"What has not been said cannot be inferred unless the provision itself gives room for speculation. If the purpose behind the intendment is discernible sans obscurity and ambiguity, there is no place for supposition," the bench observed.

CASE

The petitioner Alnesh Somji moved the High Court for ABA regarding offences of criminal breach of trust and cheating under sections 406, 420 read with 34 of the Indian Penal Code (the IPC) registered at Deccan Police Station, Pune City.

Advocate Subodh Desai for the Somji submitted that Pune Sessions Judge wrongly rejected his client's bail plea on the grounds of maintainability. Moreover, he argued that the judge erred in giving a restrictive interpretation to the scope of Section 438 of the CrPC for anticipatory bail.

The State's counsel P.P.Shinde relied on the judgment in the case of Narinderjit Singh Sahni to argue that the anticipatory bail application would not survive.

"With respect, I am not in agreement with the said view," Justice Bisht said.

Observations

At the outset Justice Bisht observed that every law is designed to promote and further the ends of justice.

After reproducing section 438 of the CrPC the court held that there were only specific statutes under which anticipatory bail applications cannot be considered or granted.

These included cases for offences of rape and special statutes like the Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989.

The court relied on the Supreme Court judgement in the case of Sushila A Aggarwal and others. The court had held that an ABA would not be maintainable if the person is already arrested for the same offence.

The judgments of Aggarwal and Gurbaksh Singh Sibbia led the bench to conclude that the applicant was in custody regarding a case registered at the Koregaon Park Police Station, and he is yet to be arrested in the present FIR. Therefore, he is entitled for bail.

The court said that judgement of Narinderjit Singh Sahni and Another was in respect of maintainability of Article 32, wherein relief in the nature of Section 438 of CrPC was sought. And even that judgement didn't say in clear terms that a petition under Section 438 of the CrPC was not maintainable if the accused is arrested in another offence.

Case Title: Alnesh Akil Somji v. State of Maharashtra

Appearance: 

Mr. Subodh Desai a/w. Mr.Kartik Garg, Mr. Ajay Vazirani, Mr. Ameya Deosthale and Mr. Sahil Namavati i/b. Lexicon Law Partners for the Applicant.

Mrs. P.P.Shinde, APP for the Respondent -State.

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