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Synopsis

The Bombay High Court has ruled that a person who is already in custody in one case can file an application for anticipatory bail in another case where he apprehends arrest.

“The conspectus of aforesaid discussion is that there is no reason to take a different view of the matter. Thus, I am impelled to hold that the fact that the applicant 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. Resultantly, the objection to maintainability of the application on the said count stands disallowed,” the order reads.

The single-judge bench, presided over by Justice NJ Jamadar, was hearing a pre-arrest bail application filed by Amar Mulchandani, a BJP Leader who was already in the custody of the Enforcement Directorate.

He sought anticipatory bail in connection with an FIR filed against him in the Seva Vikas Bank Scam case, where he was accused of defrauding the bank of Rs. 429 crores.

Mulchandani had filed an application before the high court, seeking anticipatory bail in the FIR filed against him under the Indian Penal Code

The complainant raised an objection on the maintainability of the pre-arrest bail application on the grounds that a person who is already in custody is not entitled to seek relief through pre-arrest bail for other crimes registered against him.

Advocate Naresh Shamnani, representing the complainant, argued that the primary purpose of granting pre-arrest bail relief is to protect individuals who anticipate arrest from potential harm and humiliation that could arise from an unjustified arrest. Since a person who is already in custody cannot claim potential injury and humiliation, they are not entitled to seek anticipatory bail.

Senior Advocate Aabad Ponda, representing Mulchandani, argued that being in custody for one case should not bar an individual from seeking a statutory remedy under Section 438 of the Code when they face the threat of unjustified arrest in multiple cases.

Justice Jamadar noted that it is possible for a person to face multiple arrests in various cases against them, and they may be apprehended the moment they are released in one case.

“A person under arrest can be deprived of the statutory remedy thereby jeopardising his personal liberty by employing various devices. It is quite possible that such 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 of the 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,” the order reads.

The high court concluded that the purpose of Section 438 would be frustrated if a person is prohibited from seeking pre-arrest bail in a different case until they are released on regular bail in the first case.

“In my view, the object of Section 438 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,” the bench said.

The high court extended the interim protection granted to Mulchandani and directed the matter to be listed on November 9.

Case title: Amar S. Mulchandani vs State of Maharashtra