In a very significant judgment with far reaching consequences, the Bombay High Court in a most learned, laudable, landmark and latest judgment titled Amar S Mulchandani vs State of Maharashtra in Anticipatory Bail Application No. 2801 of 2023 With Interim Application No. 3704 of 2023 and cited in Neutral Citation No.: 2023:BHC-AS:33240 in the exercise of its criminal appellate jurisdiction that was pronounced as recently as on October 31, 2023 has minced just no words to state in no uncertain terms that an accused who is in custody in one case can seek anticipatory bail in another case under Section 438 of the CrPC. The Court has thus made it plainly clear that the purpose and intent for pre-arrest bail is to protect people from unjustified arrest. Truly speaking, the single Judge Bench comprising of Hon’ble Mr Justice NJ Jamadar held succinctly that:
I am impelled to hold 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. There can be just no denying or disputing it!

It must be mentioned here that this leading case pertains to Amar Mulchandani who is a former municipal corporator of the Pimpri Chinchwad Municipal Corporation with the Congress party and who had joined BJP in 2016 and against whom case was registered in 2019 at the Pimpri Police Station in Pune. Amar was arrested in July 2023 in a money laundering case involving a cooperative bank. We thus see quite distinctly that the Bombay High Court has thus rightly set aside an objection that was raised against BJP leader Amar Mulchandani’s pre-arrest bail in a cheating case holding precisely that an accused in custody in one case can still seek pre-arrest bail in connection with another case in which they anticipate arrest.

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice NJ Jamadar sets the ball in motion by first and foremost putting forth in para 2 that:
This is an application for pre-arrest bail in connection with C.R.No.806 of 2019 registered with Pimpri Police Station for the offences punishable under Sections 420, 406, 409, 465, 467, 468, 471 read with Section 34 of the Indian Penal Code.

Do note, the Bench notes in para 3 that:
The applicant is already in custody in ECIR No.10 of 2021.

As we see, the Bench mentions in para 4 that:
In this backdrop, the first informant – intervener 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.

It is worth noting that the Bench notes in para 9 that:
Mr. Ponda, learned Senior Advocate for the Applicant, forcefully countered the submissions of Mr. Shamnani. It was submitted that on first principles, the objection to the maintainability of the application is misconceived. An arrest in one case, can never be construed to preclude a person from seeking a statutory remedy under Section 438 of the Code, where he is threatened with unjustified arrests in a number of cases. Taking such a view, according to Mr.Ponda, would jeopardise the cherished personal liberty irredeemably.

To put things in perspective, the Bench envisages in para 16 that:
The Petitioner – Narinderjit Singh Sahni, in the lead Petition, was the Managing Director of a group of companies. One of those companies has accepted deposits from a large number of persons, but failed to repay the same despite request. In some cases, the cheques drawn by the Company towards repayment were dishonoured. Eventually, prosecutions were initiated against the Petitioner as the principal accused in 8 cases for the offences punishable under Sections 420, 406, 409 and 120B at various police stations. Further 19 FIRs were lodged and were being investigated into at various police stations in different States. In addition, 182 complaints under Section 138 of the Negotiable Instruments Act, were lodged against the Petitioner. Similarly, in the connected Writ Petitions, the Petitioners therein faced multiple prosecutions in various States with the allegations of having defrauded a large body of investors in one way or the other.

Be it noted, the Bench notes in para 38 that:
The legal position which thus emerges from the Constitution Bench judgments of the Supreme Court in the cases of Gurbaksh Singh Sibbia (supra), and Sushila Aggarwal and Ors., is that it is impermissible by a process of judicial reasoning to introduce and import restrictions and limitations in the matter of exercise of discretion to grant pre-arrest bail, save and except those which are expressly statutorily provided, either in the context of duration for which the order of pre-arrest bail shall remain operative, the conditions to be imposed or the offences in which the dispensation of pre-arrest bail shall not be extended. Cast iron restrictions like a person already under arrest, de hors the nature of accusation in the case in which he is under arrest and the nature of accusation in the cases in which he apprehends arrest, cannot seek the relief of pre-arrest bail, would put unwarranted and unjustified fetters on the exercise of discretion statutorily vested. It is a different matter that the Court which is called upon to exercise the discretion to grant pre-arrest bail to an accused, who is already under arrest, may, in the totality of the governing considerations refuse to exercise discretion, even taking into account the consequences which emanate from such arrest. But it is an altogether different proposition to lay down that the moment a person is arrested in one case, he is precluded from seeking pre-arrest bail in any other case irrespective of the considerations which otherwise weigh in the matter of grant of pre-arrest bail.

While striking a cautionary note, the Bench propounds in para 39 that:
The proposition is fraught with incalculable harm to personal liberty. 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. Can the High Court or Court of Session be precluded from examining the necessity and justifiability of arrest in another case, is the moot question. 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.

On a different note, the Bench expounds in para 43 that:
With respect, I am unable to persuade myself to agree with the aforesaid justification to deprive a person, under arrest, from seeking pre-arrest bail in another case. It would be suffice to note that in the case of Gurbaksh Singh Sibbia (supra) the Supreme Court had clarified that though a direction for the release of the applicant on bail, in the event of his arrest would generally be made where the accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, yet the converse of the said proposition was not necessarily true. The Supreme Court emphasised, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides.

In addition, the Bench then hastens to add in para 44 specifying that:
I am, thus, in complete agreement with the view recorded by this Court in the case of Alnesh Somji (supra) that the judgment in Narinderjit (supra) does not hold in very clear terms that a person arrested in one offence cannot seek relief provided under Section 438 in another offence merely on the ground that he stands arrested in another distinct offence.

Most significantly and as a corollary, the Bench mandates in para 45 that:
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.

Further, the Bench then directs in para 46 that:
The application be listed on 9 November 2023.

Finally, the Bench then concludes by holding in para 47 that:
Interim protection granted earlier shall continue to operate till the next date.

All told, we thus see that the Bombay High Court has made it indubitably clear that an accused in custody is not precluded in any manner from seeking an anticipatory bail in another case. We thus see quite distinctly that Mulchandani has been granted an interim protection from arrest in the Pimpri case. The High Court referred to the Apex Court judgment in leading cases of Alnesh Akil Somji vs State of Maharashtra [2002 Q ALL M.R.(Cri.) 61] and Narinderjit Singh Sahni and Anr. Vs Union of India and Ors [(2002) 2 SCC 210] and very rightly noted that a person who is already in custody in one case can still seek pre-arrest bail in another case under Section 438 CrPC!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh