Alnesh Akil Somji vs The State Of Maharashtra
2021 Latest Caselaw 17370 Bom

                                                                   J-ABA-2857-2021.DOC


TRUPTI
SADANAND
BAMNE
Digitally signed by
                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TRUPTI SADANAND
BAMNE                                 CRIMINAL APPELLATE JURISDICTION
Date: 2021.12.14
19:51:27 +0530
                               ANTICIPATORY BAIL APPLICATION NO. 2857 OF 2021

                      Alnesh Akil Somji                              ...Applicant

                                Versus

                      State of Maharashtra                           ...Respondent

                                                    ......
                      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.
                                                    ......
                                            CORAM    :   V.G.BISHT, J.

                                    RESERVED ON      :   7TH DECEMBER, 2021
                                    PRONOUNCED ON :      14TH DECEMBER, 2021
                      PC:-

1. The present application has been moved by the

applicant under Section 438 of the Code of Criminal

Procedure in Crime No. 97 of 2021 registered with Deccan

Police Station, Pune City for offence punishable under

Sections 406, 420 read with 34 of the Indian Penal Code (the

IPC).

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2. Learned counsel for the applicant submits that the

learned Additional Sessions Judge, Pune rejected the

anticipatory bail application of the applicant on the ground of

maintainability by relying on the judgment given in Sunil

Kallani V/s. State of Rajasthan1 and as also the judgment

passed in case of Narinderjit Singh Sahni and Another Versus

Union of India and Others2. According to learned Counsel,

the learned Additional Sessions Judge erred in giving a

restrictive interpretation to the scope of Section 438 of the

Code of Criminal Procedure,1973 (for short, "the Cr.PC.").

Learned counsel also invited my attention to the various

observations made in the case of Sushila A Aggarwal and

others Versus State (NCT of Delhi) and Another3 and would

submit that the impugned order being bad in law, same is

liable to be set aside.

3. Mrs. Shinde, learned APP, on the other hand, supported

1 2021 SCC OnLine Raj 1654 2 (2002) 2 Supreme Court Cases 210 3 (2020) 5 Supreme Court Cases 1

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the impugned order and also placed reliance in case of

Narinderjit Singh Sahni (supra).

4. In view of above, substantial legal question which looms

for determination in this application may be formulated as

follows :

Whether an anticipatory bail application would

be maintainable by an accused who is already

arrested and is in magisterial custody in relation

to another crime?

5. I may note here that similar issue arose in Sunil Kallani

(supra) and learned Single Judge after referring the ratio laid

down in Narinderjit Singh Sahni's case (supra) held that

anticipatory bail application so moved would not lie. With

respect, I am not in agreement with the said view. I have my

own reasons to follow hereinafter.

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6. Following the above judgment and as also the

observations made in the case of Narinderjit Singh Sahni

(supra), learned Sessions Judge dismissed the applicant's

anticipatory bail application on the issue of maintainability

only. Therefore, applicant is before this Court.

7. Its cardinal principle of law that every law is design to

promote and further the ends of justice. Statutory

interpretation, purpose and the spirit of the provision must be

gathered from its intendment. The concerned relevant

provision of the Cr.P.C with which I am concerned is Section

438 of the Cr.P.C. For proper understanding and scrutiny of

the provision, let me reproduce the same :

"438. Direction for grant of bail to person apprehending arrest.-

(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

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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, inter alia, the following factors, namely:-

...............

2. ..............

3. ..............

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 376-AB or section 376-DA or section 376-DB of the Indian Penal Code (45 of 1860)".

8. A plain reading of the provision would show that the

only restriction provided is under Section 438 (4) of the Cr.

PC, which says that the provision will not apply to accusations

of offences which are stated in Section 438 (4) of the Cr.P.C.

Similarly, certain special statutes have excluded the operation

of Section 438 of the Cr.PC for accusation of offences

punishable under those special statutes, for example Section

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18A of the Schedule Caste and Schedule Tribes (Prevention of

Atrocities) Act, 1989 bars exercise of powers under Section

438 of the Cr.P.C.

9. The Hon'ble Apex Court in the case of Sushila A

Aggarwal and others (supra), while dealing with the scope of

Section 438 of the Cr.P.C has followed the decision in the case

of Shri Gurbaksh Singh Sibbia and others Versus State of

Punjab4 and regarding the bar or restriction on the exercise of

power to grant anticipatory bail, the Hon'ble Apex Court has

held as follows :

"62.......In this background, it is important to notice that the only bar, or restriction, imposed by Parliament upon the exercise of the power (to grant anticipatory bail) is by way of a positive restriction i.e. in the case where accused are alleged to have committed offences punishable under Section 376 (3) or Section 376-AB or Section 376-DA or Section 376-DB of the Penal Code. In other words, Parliament has now denied jurisdiction of the courts

4 (1980) 2 Supreme Court Cases 565

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(i.e. Court of Session and High Courts) from granting anticipatory bail to those accused of such offences. The amendment [Code of Criminal Procedure Amendment Act, 2018 introduced Section 438 (4)] reads as follows:

"438. (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 376-AB or Section 376-DA or Section 376-DB of the Indian Penal Code".

63. Clearly, therefore, where Parliament wished to exclude or restrict the power of courts, under Section 438 of the Code, it did so in categorical terms. Parliament's omission to restrict the right of citizens, accused of other offences from the right to seek anticipatory bail, necessarily leads one to assume that neither a blanket restriction can be read into by this Court, nor can inflexible guidelines in the exercise of discretion, be insisted upon- that would amount to judicial legislation".

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10. Similarly, the Hon'ble Apex Court has made following

observations in the case of Shri Gurbaksh Singh Sibbia and

others (supra):

"39. Fifthly, the provisions of Section 438 cannot be invoked after the arrest of the accused. The grant of "anticipatory bail" to an accused who is under arrest involves a contradiction in terms, insofar as the offence or offences for which he is arrested, are concerned. After arrest, the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested".

11. It is thus very clear, according to Hon'ble Apex Court,

that anticipatory bail will not be maintainable in case a person

is in custody in the same offence for which pre-arrest bail is

sought, the restriction, if any, upon maintainability of pre-

arrest bail will be there only if a person is in custody in that

particular offence itself.

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12. From the above pronouncements, two things are clear.

First, there is no such bar in Cr.P.C or any statute which

prohibits Session or the High Court from entertaining and

deciding an anticipatory bail, when such person is already in

judicial or police custody in some other offence. Second, the

restriction cannot be stretched to include arrest made in any

other offence as that would be against the purport of the

provision.

13. In the present case, the applicant is in custody with

respect to offence registered with Koregaon Park Police

Station and he is yet to be arrested by police viz-a-viz the FIR

registered with the respondent. As per the judgment of the

Hon'ble Apex Court in the case of Shri Gurbaksh Singh Sibbia

and others (supra), the restriction is only when the pre-arrest

bail is sought for the same offence in which arrest is already

made.

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14. I may point out here that the case of Narinderjit Singh

Sahni and Another (supra) was in respect of maintainability

of Article 32 wherein relief in the nature of Section 438 was

sought. Even, the said judgment does not hold in very clear

terms that a person arrested in one offence cannot seek the

relief provided under Section 438 of Cr.PC in another offence

merely on the ground that he stands arrested in another

district offence.

15. In my considered opinion, there was no proper

interpretation of Section 438 of the Cr.PC at the hands of

learned Additional Sessions Judge. Accused has every right,

even if he is arrested in number of cases, to move in each of

offence registered against him irrespective of the fact that he

is already in custody but for different offence, for the reason

that the application (s) will have to be heard and decided on

merits independent of another crime in which he is already in

custody.

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16. One cannot and must not venture, under the garb of

interpretation, to substantiate its own meaning than the plain

and simple particular though provided by statute. 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.

17. For the aforesaid reasons, the plea of learned APP is

raised regarding non-maintainability of the application cannot

have my concurrence.

18. In the result, the impugned order of the learned

Sessions Judge holding that application under Section 438 of

the Cr.P.C was not maintainable is hereby set aside. Hence,

the following order :

ORDER

(i) The application is allowed.

(ii) The learned Additional Sessions Judge, Pune is

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directed to hear Criminal Bail Application No.7755

of 2021 on its own merit and in accordance with

law expeditiously and preferably within three

weeks from the receipt of this order.

(iii) Meantime, it is further directed that no

coercive action shall be taken against the

applicant.

(iv) The application stands disposed of.

                                             (V.G.BISHT, J. )




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