Bombay High Court
Alnesh Akil Somji vs The State Of Maharashtra on 14 December, 2021
Author: V.G.Bisht
Bench: V.G.Bisht
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 Trupti 11/12 J-ABA-2857-2021.DOC 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. ) Trupti 12/12