The Bombay High Court has ruled that a person in custody in a criminal offence can seek pre-arrest bail in another case where he or she apprehends arrest.
A single bench of Justice N J Jamadar in its order passed on October 31 noted that the proposition that a person arrested in one case, is precluded from seeking pre-arrest bail in any other case, was “fraught with incalculable harm to personal liberty”.
The bench was hearing an application filed by former corporator from Pune, Amar Mulchandani, who is already in jail after his arrest by the Enforcement Directorate (ED), seeking pre-arrest bail in a 2019 cheating case lodged by the Pune police.
The complainant in the Pune case opposed the application on maintainability grounds claiming that a person who is already in custody was not entitled to seek relief of pre-arrest bail in connection with other criminal cases registered against him.
The bench, however, said depriving a person from a statutory remedy would jeopardise his personal liberty. “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 relief of pre-arrest bail, would put unwarranted and unjustified fetters on the exercise of discretion statutorily vested,” the court said.
It is quite possible that such a person can be arrested in another case the moment he is released in the first case or there is an impending possibility of release, it added.
“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,” the court said, refusing to dismiss the plea on maintainability grounds.
The court said it would hear the pre-arrest bail plea on November 9.