1 mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3773 OF 2007 Prakash Laxman Chavan .. Applicant versus State of Maharashtra .. Respondent ... Mr.A.P. Mundargi i/b V.V. Purwant for the applicant. Mr.R.M. More APP for the State. CORAM : D.G.KARNIK, J DATED : 8th February 2008 ORAL ORDER:- ORAL ORDER:- ORAL ORDER:- 1. Heard. 2. By this application under section 438 of the Code of Criminal Procedure (for short ’the Code’) the applicant seeks pre-arrest bail in C.R.No.265 of 2006 registered with Bhosavi police station under for the alleged offence punishable u/s.143, 147, 148, 149, 302, 386, 396 of the IPC, section 4(2) of the Arms Act and section 37 r/w sec.135 of the Bombay Police 2 Act. 3. The learned APP has opposes the application for grant of bail interalia on the following grounds: (a) The applicant is a convict and is undergoing sentence in Yerawada Central Prison. Though pending decision of his appeal he has been granted bail he has not furnished bail and still continues to be in jail. Since the applicant is in custody, Section 438 of the Code is not applicable and applicant cannot seek pre-arrest bail. (b) The applicant is a habitual offender and has several offences to his discredit. The applicant has already been convicted in respect of atleast one other offence. Taking into consideration his antecedents, possibility of he repeating similar crimes cannot be ruled out. (c) The applicant is presently facing trial for an offence of Murder of Anil Hegde. He is threatening the witnesses who are to be examined in Anil Hegde murder case. Mr.Nandu Lande one of the witness in the murder case has been killed and murdered. There is a prima facie evidence about the complicity of the applicant in the murder of Nandu 3 Lande and custody of the applicant is needed for the purpose of investigation. Three other co-accused in the murder of Nandu Lande are absconding. 4. In the light of these submissions, the first question that is required to be considered is :Whether the provisions of section 438 of the Code are applicable where a person who is already arrested and is in custody in connection with a different offence or who is already convicted and is undergoing imprisonment apprehends arrest in connection with another offence applies for bail? Learned APP submitted that in such a case the person would not be entitled to apply for pre-arrest or anticipatory bail under section 438 of the Code while he is in custody or is undergoing a sentence. 5. For the purpose of considering the rival submissions it would be appropriate to refer to the provisions of sub-section (1) of section 438 of the Code which reads thus:- 438(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 4 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;- (i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) the possibility of the applicant to flee from justice; and (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail; Provided that, where the High Court or, as the case may be, the Court of Session, has 5 not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer incharge of a police station to arrest, without warrant, the applicant on the basis of the accusation apprehended in such application." 7. Section 438 of the Code enables a person who has a reason to believe that he may be arrested on accusation of a non bailable offence, to apply to the High Court or to the Court of Session for a pre-arrest bail (commonly known as anticipatory bail). According to the learned APP, section would not be applicable if the accused is already in custody even in connection with any other offence or is already undergoing a sentence for any other offence because there would be no question of he being arrested again while in custody. In such situation it cannot be said that the person has a reason to believe that he may be arrested on accusation of having committed a non bailable offence. In my opinion, the submission has no merit for the reasons mentioned below. 8. Take a case of a person who is arrested and is in police custody pending investigation of an offence 6 alleged to have been committed by him. During the course of investigation, the police may find that the accused is involved in more serious offence than the one for which he was originally arrested and committed during the course of that offence itself. In that event, the police may continue to detain him in custody upto the maximum period provided by section 167 of the Code and investigate into the more serious offence which was disclosed during the course of investigation. But it may happen that while the investigation for which the accused is detained in custody is going on, the police discover that the person arrested is involved in another offence which is not a part of the first offence is an entirely different offence committed on different occasion. This may come to the light of the police while the person is in police custody itself or while he is in judicial custody after the period of police custody is over. In that event the police may formally arrest him in connection with the other offence and then obtain the order of the Magistrate for his detention in police custody in the second independent offence. This is perfectly legal. In this connection it would be useful to refer to the observations of the Supreme Court in Central Bureau of Investigation Vs. Anupam J. Kulkarni, 1984 Cri L.J.253, which read thus:- 7 "In one occurrence it may so happen that the accused might have committed several offences and the police may arrest him in connection with one or two offences on the basis of the available information and obtain police custody. If during the investigation his complicity in more serious offences during the same occurrence is disclosed that does not authorise the police to ask for police custody for a further period after the expiry of the first fifteen days. If that is permitted then the police can go on adding some offence or the other of a serious nature at various stages and seek further detention in police custody repeatedly, this would defeat the very object underlying Section 167. However, we must clarify that this limitation shall not apply to a different occurrence in which complicity of the arrested accused is disclosed. That would be a different transaction and if an accused is in judicial custody in connection with one case and to enable the police to complete their investigation of the 8 other case they can require his detention in police custody for the purpose of associating him with the investigation of the other case. In such a situation he must be formally arrested in connection with other case and then obtain the order of the Magistrate for detention in police custody." 8. In Anupam Kulkarni’s case the Supreme Court specifically approved the view taken by a Division Bench of Punjab High Court in S. Harsimran Singh Vs. State of Punjab, 1984 Cr.L.J. 253, by quoting the following passage therefrom: "We see no inflexible bar against a person in custody with regard to the investigation of a particular offence being either re-arrested for the purpose of the investigation of an altogether different offence. To put it in other words, there is no insurmountable hurdle in the conversion of judicial custody into police custody by an order of the Magistrate under 9 Section 167(2) of the Code for investigating another offence. Therefore, a re-arrest or second arrest in a different case is not necessarily beyond the ken of law". The position is clear that while an accused is in judicial custody in connection with an offence he may be re-arrested in respect of a second and independent offence and in that event it would be open to the police to apply to the Magistrate to grant a police custody for the purpose of investigation into the second offence. If this be so, then a person even while in custody may have a reason to believe that he may be arrested on accusation of having committed (a second or any other) non bailable offence. On such apprehension it would be lawful for him to apply for pre-arrest bail u/s.438 of the Code. The first contention of the learned A.P.P. therefore, has to be rejected. 9. However, the right of a person to apply for pre-arrest anticipatory bail u/s.438 of the Code and entitlement for such bail are two entirely different things. The person accused may be entitled to apply for bail but on merits may not be entitled to bail. 10 The Court while considering the application for pre-arrest bail would have to consider it on its own merit on the facts of each case. 10. Sub-section (1) of section 438 of the Code lays down that while making an order of grant or refusal of bail, the Court shall interalia take into consideration the following factors viz:- (i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) the possibility of the applicant to flee from justice; and (iv) whether the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for 11 the grant of anticipatory bail; These factors are not exhaustive. The Court must weigh and strike a balance between the right of a citizen to be free unless proved guilty and the need for his detention for custodial interrogation. Whether there is a need of custodial interrogation of the accused in respect of the accusation made against him would depend on the facts and circumstances of each case and there cannot be a straight jacket formula. While considering the request for bail it must be borne in mind that custodial interrogation is qualitatively different than the investigation carried out by the police while a person is free and is armed with an order for anticipatory bail in his pocket. Custodial interrogation has its own benefits and many facts are often discovered which would not be otherwise discovered. The nature of the accusation and the material collected or available with the police before the police decide to take a person in custody for custodial interrogation is required to be seen while considering an application made by a person for anticipatory bail. All relevant factors may then be weighed against the right of individual to be free unless proved guilty, convicted and sentenced. 12 11. In the present case, the facts are that the applicant is accused of and is facing trial for murder of Anil Hegde. The tiral is pending. Mr.Nandu Lande (since deceased) was a witness in the trial for murder of Anil Hegde Though there is some dispute between the parties whether Nandu Lande was an eye witness or not, it is not in dispute that Nandu Lande was a witness and was to be examined at the trial of the applicant for the offence punishable u/s.302 of the IPC. Hanmant Raghunath More, police constable, in his statement has stated that on 24th July 2006 he had accompanied the applicant to Sassoon General Hospital for some medical investigation or treatment. At that time, the applicant created a row because of which certain persons gathered around him. Taking advantage of the commotion, few persons talked to the applicant. One of the persons told the applicant that Nandu Lande was not willing to budge (not to give evidence) The applicant told him that he may again tell him not to do so failing which his voice should be silenced. Constable Arun Namdev Mane has also given similar statement. There was a clear motive and there is a prima facie evidence regarding the complicity of the applicant in the murder of Nandu Lande. The submission of the learned APP that police require custody of the applicant for his 13 interrogation into the murder of Nandu Lande cannot be brushed aside. As regards the antecedents, the applicant has to his discredit several offences. Trial in respect of one of the offences has been completed and the applicant is convicted; few other trials are pending. One of the trials is regarding a serious offence of murder punishable u/s.302 of the IPC. In fact, the murder of Nandu Lande is alleged to have been committed by the applicant through his hirelings in order to silence him and to deter the others for giving evidence against him. 12. Taking into consideration all these facts, in my view the applicant is not entitled to pre-arrest bail. The application is accordingly rejected. (D.G.KARNIK, J)