Source: Bombay High Court

Why in News?

Recently, the High Court of Bombay in the case of Amar S. Mulchandani v. State of Maharashtra, held that an accused who is in custody in one case can seek anticipatory bail in another case under the provisions of Section 438 of the Criminal Procedure Code, 1973 (CrPC).

What was the Background of Amar S. Mulchandani v. State of Maharashtra?

• An application for pre-arrest bail has been filed before the High Court of Bombay in connection with a case registered with Pimpri Police Station for the offences punishable under various sections of the Indian Penal Code, 1860 (IPC).
  • The applicant is already in custody since the year 2021.
• The first informant 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.
• The High Court disallowed the objection to maintainability of the application.

What were the Court’s Observations?

• Justice NJ Jamadar held that the fact that the applicant who is already in custody in one case, does not preclude him from seeking pre-arrest bail in connection with another case in which he apprehends arrest.
• The Court further noted that Section 438 of CrPC does not hold in very clear terms that a person arrested for one offence was barred from seeking anticipatory bail in another offence.

What is Section 438 of CrPC?

About:

• This section contains directions for grant of bail to person apprehending arrest. It states that-

(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, interalia, the following factors, namely:---

(i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested;

either reject the application forthwith or issue an interim order for the grant of anticipatory bail.

Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.

(1A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days' notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court,

(1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.

(2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including--

(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;

(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;

(iii) a condition that the person shall not leave India without the previous permission of the Court;

(iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should be issued in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1).

(4) Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code (45 of 1860).

Conditions:

• This Section is made applicable only in the event of there being an apprehension of arrest.
• It envisages for seeking pre-arrest bail is that the applicant must have reason to believe that he may be arrested on accusation of having committed a non-bailable offence.

Significance of Section 438 of CrPC:

• The reason for enactment of Section 438 in the Code was Parliamentary acceptance of the crucial underpinning of personal liberty in a free and democratic country.
• Section 438 of CrPC is a procedural provision concerned with the personal liberty of each individual, who is entitled to the benefit of the presumption of innocence.

Case Laws:

• In the case of Badresh Bipinbai Seth v. State of Gujarat (2015), the Supreme Court held that Section 438 of CrPC should be interpreted liberally in light of Article 21 of the Constitution of India, 1950 which grants freedom of life and personal liberty.
• In the case of Sushila Aggarwal v. State of NCT of Delhi (2020), the Supreme Court held that the anticipatory bails should not be time-bound.