Point of Law : 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.

JUDGMENT :

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).

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 Rajasthan, 2021 SCC OnLine Raj 1654 and as also the judgment passed in case of Narinderjit Singh Sahni and Another Versus Union of India and Others, (2002) 2 Supreme Court Cases 210. 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 Another, (2020) 5 Supreme Court Cases 1 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 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.

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 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 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 ot