Anticipatory Bail While Already In Custody? Bombay HC Agrees

• The Hon’ble Bombay High Court on 14 December, while hearing an anticipatory bail application (Alnesh Akil Somji vs. State of Maharashtra) has ruled that an accused can be granted anticipatory bail even if he is already in custody for another offence.
• According to the counsel for the applicant, the learned Session Judge erred by giving a restrictive interpretation of the scope of Section 438 of CrPC. Reliance was placed by the Counsel on the case of Sushila Aggarwal vs. State (NCT of Delhi) 2020 SCC.
• Thus the question before the court was- “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?”
• The Bombay HC stated that on a plain reading of section 438 CrPC it is clear that the only restriction applying to the grant of anticipatory bail is that it will not apply to offences mentioned in Section 438(4).
• Relying upon the decision of the Hon'ble SC in Sushila Aggarwal vs. State (NCT of Delhi) and Shri Gurbaksh Singh Sibbia and others vs. State of Punjab (1980)2 SCC, the Court observed that when the legislature wanted certain offences to be kept outside the purview of section 438 CrPC (eg- Section 376 or 376-AB) it did so in categorical terms and “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 it by this court, nor can inflexible guidelines in the exercise of discretion, be insisted upon- that would amount to judicial legislation”
• Thu, there is nothing, according to the Court, in CrPC or in any other statute which prohibits the Sessions or the High Court from entertaining an application for anticbail when the accused is already in judicial or police custody and the Sessions Court had made a great error in denying the bail application of the accused.

And now, a question for our aspirants-

By what decision of the Hon’ble Uttarakhand HChas the provisions of Section 438 CrPC made applicable in the state of Uttarakhand?