Friday 27 August 2021

Guidelines of Bombay HC for Grant of Three Days Interim Protection From Arrest to accused After Rejection of Anticipatory Bail

  In view of the above, the present application is

disposed of as follows:

a) The impugned order is quashed and set aside.

b) In order to address the aforesaid apprehension of

accused persons in the State of Maharashtra of the

possibility of arrest upon remaining present before the

Sessions Court pursuant to direction under Section

438(4) of the Cr.P.C. (Maharashtra Amendment), and

rejection of their application for anticipatory bail, the

following directions are issued:

(i) The Prosecutor under Section 438(4) of the

Cr.P.C. (Maharashtra Amendment) shall state

cogent reasons while seeking the obligatory

presence of the accused before the Sessions

Court at the time of final hearing of the

application for anticipatory bail.

(ii) The Sessions Court shall consider such an

application and pass a reasoned order as to why

the presence of the accused is necessary, in the

interest of justice, at the time of final hearing of

application for grant of anticipatory bail.

(iii) If the Sessions Court rejects the application for

anticipatory bail upon final hearing and the

accused is present before the Sessions Court in

pursuance of directions given under Section

438(4) of the Cr.P.C. (Maharashtra Amendment),

the Court shall extend the interim protection

operating in favour of the accused for a

minimum period of three working days, on the

same conditions on which interim protection was

granted during pendency of the application for

anticipatory bail or on such further conditions as

the Sessions Court may deem fit, in the interest

of justice.

(iv) In cases where the Sessions Court deems it

appropriate to grant extension of interim

protection for more than three working days, it

shall record reasons for the same and in any

case, such extension of interim protection upon

existing conditions or further stringent

conditions, shall not exceed a period of seven

working days.

(v) The accused shall abide by the conditions so

imposed by the Sessions Court while granting

extension of interim protection, failing which

such interim protection shall cease to operate

instantaneously.


IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH AT NAGPUR

Criminal Application (APL) No. 393 of 2021

 Dr. Sameer Narayanrao Paltewar  Vs. The State of Maharashtra, 

CORAM : MANISH PITALE, J.


PRONOUNCED ON: AUGUST 21, 2021


Heard finally.

2. What is the fate of an accused in the State of

Maharashtra who is directed to remain present in the Sessions

Court pursuant to a direction under Section 438(4) of the


Code of Criminal Procedure, 1973 (Cr.P.C.) and his application

for anticipatory bail is rejected? Is he not exposed to

immediate arrest, as the interim protection operating during

pendency of the application vanishes with the dismissal of the

application? Is he then not deprived of opportunity to move

the High Court for grant of anticipatory bail by invoking the

concurrent jurisdiction of the High Court under Section 438

of the Cr.P.C.? These are the questions that fall for

consideration in the present application.

3. The applicant before this Court contends that

appropriate directions are required from this Court in the

context of Section 438(4) of the Cr.P.C., Maharashtra

Amendment, so as to ensure that the very remedy of prearrest

bail or anticipatory bail is not frustrated when the

Sessions Court directs the accused to remain present under

the said provision at the time of final hearing of the

application for anticipatory bail. The contention is that when

the presence of the accused is insisted upon under Section

438(4) of Cr.P.C., in the eventuality of the application for

anticipatory bail being rejected, interim protection needs to

be extended for a reasonable time, so that the accused is not

deprived of the opportunity to knock the doors of the High

Court to seek anticipatory bail, as the High Court exercises

concurrent jurisdiction in the matter. The submission is that

in the absence of any such direction, the moment an

anticipatory bail application of an accused is rejected and the

applicant (accused) is obliged to remain present before the

Sessions Court pursuant to direction under Section 438(4) of

Cr.P.C., there is every possibility of the Investigating Officer

arresting the accused then and there, as a result of which, the

accused would stand deprived of approaching the High Court,

thereby frustrating the very remedy available under Section

438 of Cr.P.C.

4. The applicant before this Court is a Nero Surgeon,

practicing since 1999, who has worked as a Lecturer in Sion

Hospital at Mumbai and who has been instrumental in

establishing the Neuro Science Department of a Super

Specialty Hospital at Nagpur. The complainant and the

applicant are the Directors of a company operating the said

Hospital and the complainant has lodged a criminal

complaint, due to disputes that have arisen, bearing Crime

No. 77/2021 against the applicant for offences punishable

under Sections 406, 409, 420, 465, 467, 468 and 471 of the

Indian Penal Code (IPC) and Section 66-C of the Information

Technology Act, 2000.

5. The applicant filed an application for grant of

anticipatory bail before the Sessions Court, wherein on

22/02/2021, ad-interim protection was granted in favour of

the applicant and he was told to co-operate with the

investigation. Upon notice being issued in the said

application, the Public Prosecutor appeared in the matter and

a counsel also represented the complainant to assist the

Prosecutor. The applicant states that the counsel representing

the complainant applied before the Public Prosecutor, seeking

a direction for personal presence of the applicant at the time

of final hearing of the anticipatory bail application.

Thereafter, the Investigating Officer and the Prosecutor

moved applications seeking presence of the applicant in the

Court at the time of final hearing of the anticipatory bail

application. On 05/03/2021, the Court of Additional Sessions

Judge–6, Nagpur, allowed the applications and directed the

applicant to remain present in the Court at the time of final

hearing of the application for anticipatory bail.

6. Aggrieved by the same, the applicant filed the

present application, wherein this Court passed an order on

09/03/2021, admitting the application and recorded the

aforesaid contentions raised in the matter pertaining to the

scope and amplitude of Section 438(4) of Cr.P.C. as applicable

to the State of Maharashtra. Interim order was passed in

favour of the applicant to the effect that if the Sessions Court

rejected the anticipatory bail application, the interim

protection operating in favour of the applicant would

continue for a period of 72 hours, to enable him to approach

this Court. The complainant filed an intervention application

and appeared through counsel. The public Prosecutor

represented the State.

7. Mr. Avinash Gupta, learned Senior Counsel

appearing along with Mr. Akash Gupta, learned Counsel for

the applicant, submitted that the power to grant anticipatory

bail under Section 438 of Cr.P.C. is exercised concurrently by

the Sessions Court and this Court. It was submitted that Subsection

(4) to Section 438 of Cr.P.C. as applicable to the State

of Maharashtra, creates a situation that when the Court

directs presence of the applicant (accused) in the Court on an

application moved by the Prosecutor, unless there is an order

granting interim protection from arrest to the applicant, there

is every possibility of the applicant being arrested on his

remaining present in the Court, thereby frustrating the very

right available under the said provision. It is submitted that

this Court, to address the said situation, has repeatedly held

that when the Sessions Court exercises its power under

Section 438(4) of Cr.P.C. directing the accused to remain

present in the Court at the stage of final hearing, there has to

be interim protection from arrest in favour of the accused. In

other words, it is already held by this Court that the direction

to the accused to remain present in the Court by exercising

power under Section 438(4) of Cr.P.C., can be granted only

when interim protection is already operating in favour of such

an accused.

8. But, the learned Senior Counsel submits that the

applicant in the present case seeks to highlight the plight of

an accused when he remains present in the Court at the stage

of final hearing of the application for grant of anticipatory

bail while interim protection is operating. In the eventuality

that the application is rejected upon final hearing, unless

protection is extended further for a reasonable period of time

to approach the High Court for grant of anticipatory bail, the

accused stands exposed to the possibility of arrest. As a result,

in the event of his immediate arrest, he is deprived of an

opportunity to move the High Court, having the consequence

of frustrating the right available under Section 438(4) of

Cr.P.C. to move the High Court for consideration of his prayer

for grant of anticipatory bail. The learned Senior Counsel

submits that the Maharashtra Amendment to Section 438 of

Cr.P.C., incorporating sub-section (4) therein, ought to be read

in such a fashion that it operates in the interest of justice and

in the interest of the prosecution as well as the accused. It is

submitted that the Court can continue the conditions imposed

for grant of interim protection during pendency of the

application before the Sessions Court or the Court can impose

further conditions also, while extending the interim

protection for a reasonable period of time, in the interest of

justice. The learned Senior Counsel emphasized that the

expression “interest of justice” used in Section 438(4) of the

Cr.P.C. as applicable to the State of Maharashtra, ought not to

be interpreted in a narrow fashion to mean only the interest

of prosecution, but also to take care of the interest of the

accused.

9. The learned Senior Counsel relied upon judgments

of the Hon’ble Supreme Court in the cases of Shri Gurbaksh

Singh Sibbia and Others Vs. State of Punjab (1980) 2 SCC


565, Sushila Aggarwal and Others Vs. State (NCT of Delhi)

and Another (2020) 5 SCC 1 and judgment and order dated

04/12/2009, passed by this Court in Criminal Application No.

5307 of 2009 (Ashik Rameshchandra Shah and Others Vs.

State of Maharashtra). The learned Senior Counsel

specifically relied upon the 203rd Report of the Law

Commission of India on the subject of amendment to Section

438 of the Cr.P.C. By referring to the relevant portions of the

said judgments and the aforesaid Report of the Law

Commission, the learned Senior Counsel emphasized that this

Court ought to give appropriate directions so that Section

438(4) of the Cr.P.C., as applicable to the State of

Maharashtra, operates in furtherance of justice and the

interpretation that frustrates the very right provided under

Section 438 of the Cr.P.C., is eschewed.

10. Mr. S.A. Ashirgade, learned APP appeared on

behalf of the respondent – State and submitted that the

apprehension expressed on behalf of the applicant that in the

absence of interim protection being continued, there was

distinct possibility of the accused being arrested upon

rejection of the application for anticipatory bail by the

Sessions Court, could not be said to be unjustified. The


learned APP further submitted that there can be no doubt

about the fact that the Sessions Court and High Court do

exercise concurrent jurisdiction insofar as Section 438 of

Cr.P.C. is concerned. But, attention of this Court was invited

to judgment of the Division Bench of this Court in the case of

Abdul Razzak Abdul Sattar and Anr. Vs. State of Maharashtra

and Ors., judgment and order dated 19/07/2011, passed in

Criminal Writ Petition No. 355 of 2011, wherein the aforesaid

specific provision i.e. under Section 438(4) of the Cr.P.C.

applicable to the State of Maharashtra, was challenged on the

ground that it violated Articles 14 and 21 of the Constitution

of India. It was submitted that by the said judgment, a

Division Bench of this Court rejected the challenge raised to

the validity of Section 438(4) of the Cr.P.C. It was specifically

held that the said provision could not be said to violate Article

21 of the Constitution of India. On this basis, it was

submitted that the direction given in the present case by the

impugned order dated 05/03/2021, by exercise of power

under Section 438(4) of the Cr.P.C., could not be said to be

improper on the part of the Sessions Court. The learned APP

submitted that the contents of the 203rd Report of the Law

Commission could not be disputed and this Court may pass

appropriate directions in the context of the apprehension

expressed by the learned Senior Counsel appearing for the

applicant (accused), in the interest of justice.

11. Mr. Sahil Dewani, learned counsel appearing for

the intervenor (original informant), submitted that the

present application was rendered infructuous in view of the

fact that this Court had granted interim relief to the applicant

by directing that if the Sessions Court passed any adverse

order of rejection of anticipatory bail, the interim protection

operating in favour of the applicant would continue to

operate for further period of 72 hours to enable the applicant

to approach this Court. On this basis, it was submitted that

the present application had served its purpose. On the

specific contentions raised on behalf of the applicant, the

learned counsel appearing for the intervenor also relied upon

the aforesaid Division Bench judgment in the case of Abdul

Razzak Abdul Sattar and Anr. Vs. State of Maharashtra and

Ors. (supra). In fairness, the learned counsel for the

intervenor also referred to the judgment of this Court in the

case of The State of Maharashtra Vs Kachrusingh

Santaramsingh Rajput and another (1994) 3 Bom CR 348,

wherein this Court had an occasion to comment upon the

apprehension expressed on behalf of the applicant.


12. Having heard the learned counsel appearing for

the rival parties, this Court is called upon to consider as to

whether appropriate directions need to be given in order to

address the apprehension of the accused in the State of

Maharashtra in the context of Section 438(4) of the Cr.P.C.

This Court needs to consider as to whether the accused is

entitled for appropriate directions, extending the interim

protection operating during pendency of the anticipatory bail

application before the Sessions Court, for a reasonable period,

in the event the application is rejected upon final hearing, so

as to enable the applicant to approach the High Court by

invoking concurrent jurisdiction under Section 438 of the

Cr.P.C.

13. This Court is of the opinion that even though in

the present case the applicant was granted interim relief, the

issue raised on behalf of the applicant is recurring and that it

needs to be decided on merits. Before considering the rival

arguments and the relevant material produced before this

Court, it would be appropriate to reproduce the aforesaid

provision, as applicable in the State of Maharashtra.

“Substitution of section 438 of Act 2 of 1974 :-

For section 438 of the Code of Criminal


Procedure, 1973 (2 of 1974), in its application to

the State of Maharashtra, the following section

shall be substituted namely :-

438. Direction for grant of bail to person

apprehending arrest. – (1) When any person has

reason to believe that he may be arrested on an

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 High Court may, after taking

into consideration, inter-alia, the following factors

:-

(i) The nature and gravity or seriousness

of the accusation as apprehended by the

applicant;

(ii) the antecedents of the applicant

including the fact as to whether he has, on

conviction by a Court previously undergone

imprisonment for a term in respect of any

cognizable offence;

(iii) the likely object of the accusation to

humiliate or malign the reputation of the

applicant by having him so arrested, and

(iv) the possibility of the applicant, if

granted anticipatory bail, fleeing from justice,

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 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 in

charge of a police station to arrest, without

warrant the applicant on the basis of the

accusation apprehended in such application.

(2) Where the High Court or, as the case

may be, the Court of Session, considers its

expedient to issue an interim order to grant

anticipatory bail under sub-section (1), the Court

shall indicate therein the date, on which the

application for grant of, anticipatory bail shall be

finally heard for passed on order thereon, as the

Court may deem fit; and if the Court passes any

order granting anticipatory bail, such order shall

include inter alia the following conditions, namely

:-

(i) that the applicant shall make himself

available for interrogation by a police officer as

and when required;

(ii) that the applicant shall not, directly or

indirectly, make any inducement, threat or

promise to any person acquainted with the facts

of the accusation against him so as to dissuade

him from disclosing such facts to the Court or to

any police officer;

(iii) that the applicant shall not leave India

without the previous permission of the Court; and

(iv) such other conditions as may be

imposed under sub-section (3) of section 437 as if

the bail was granted under that section.

(3) Where the Court grants an interim

order under sub-section (1), it shall forthwith

cause a notice, being not less than seven days

notice, together with a copy of such order to be

served on the Public Prosecutor and the

Commissioner of Police, or the as the case may be,

the concerned Superintendent of Police, with a

view to give the Public Prosecutor a reasonable

opportunity of being heard when the application

shall be finally heard by the Court.

(4) The presence of the applicant seeking

anticipatory bail shall be obligatory at the time of

final hearing of the application and passing of the

final order by the Court, if on an application made

to it by the Public Prosecutor, the Court considers

such presence necessary in the interest of justice.

(5) On the date indicated in the interim

order under sub-section (2), the Court shall hear

the Public Prosecutor and the applicant and after

due consideration of their contentions, it may

either confirm, modify or cancel the interim order

made under sub-section (1).”

14. It is evident from a perusal of sub-section 4 of

Section 438 of the Cr.P.C., as applicable to the State of

Maharashtra, quoted above, that if the Public Prosecutor

moves an application seeking presence of the applicant


(accused), before the Court at the time of final hearing of an

application for anticipatory bail and the Court considers such

presence necessary and in the interest of justice, it becomes

obligatory for the accused to remain present before the Court.

The physical presence of the applicant (accused) before the

Court at the stage of final hearing obviously exposes him to

arrest, the moment his application for anticipatory bail is

dismissed upon final hearing. It is obvious that the moment

the applicant (accused) is arrested, his right to move the High

Court under Section 438 of Cr.P.C., invoking the concurrent

jurisdiction vested in the High Court stands forfeited and

frustrated.

15. There can be no doubt about the fact that the

Sessions Court as well as the High Court exercise concurrent

jurisdiction, insofar as applications under Section 438 of the

Cr.P.C. are concerned. This is because, the words used in the

above quoted provision are “he may apply to the High Court

or the Court of Sessions for a direction under this Section

….”. The Law Commission of India in the aforementioned

203rd Report has also deliberated upon the said concurrent

jurisdiction of the Sessions Court and the High Court in the

matter of applications under Section 438 of the Cr.P.C. and

commented upon the then proposed amendment in Section

438 of the Cr.P.C., which ultimately did not fructify in the

Cr.P.C., as generally applicable, but, nevertheless found its

way in the said provision as applicable to the State of

Maharashtra. Thus, it is an undeniable fact that the Sessions

Court as well as the High Court exercise concurrent

jurisdiction, insofar as applications for anticipatory bail under

Section 438 of the Cr.P.C. are concerned.

16. By now, it is also a settled position of law, as

referred in the aforesaid 203rd Report of the Law Commission

of India submitted in December 2007, that an accused is

expected to first approach the Sessions Court to seek

anticipatory bail and if an adverse order is passed, to then

approach the High Court, seeking anticipatory bail under

Section 438 of the Cr.P.C. Therefore, this two stage process of

exercising right to move the Sessions Court initially and then

the High Court for seeking anticipatory bail under Section

438 of the Cr.P.C., has been recognized.

17. Initially, when the question arose regarding plight

of an accused not having interim protection during the

pendency of anticipatory bail application before the Sessions


Court and then being directed to appear before the Sessions

Court at the stage of final hearing under Section 438(4) of the

Cr.P.C., this Court held in various orders that if a direction

was to be given to the accused to remain present in Court

under Section 438(4) of the Cr.P.C., interim protection ought

to be operating in his favour. In the case of The State of

Maharashtra Vs Kachrusingh Santaramsingh Rajput (supra),

this Court considered the aforesaid aspect of the matter and

held that the very purpose of introducing Section 438 in the

Cr.P.C. and the new form in which it was brought into force

in the State of Maharashtra was to strike a balance between

the interest of the State to investigate through police into

offences according to established procedure of law and the

individual liberties of a person accused of serious crimes. The

expression “in the interest of justice” was deliberated upon

and it was held that the said expression was not limited to

concern for the rights of the accused, but also, the duty of the

State to investigate into serious offences in a proper and

efficient manner. In the case of Vijaya Ramesh Ramdasi V.

State of Maharashtra, (Criminal Application No. 569 of 2001),

decided on 20/03/2001, this Court held as follows:

“8. While considering, whether the grant of

interim anticipatory bail is sine-qua-non for the

Court to order personal presence of the applicant on

the date fixed for final hearing, practical effect of

the scheme as a whole must be taken into

consideration. In case the applicant is not granted

interim anticipatory protection and still the Court

directs the applicant to remain present in the Court

on the date fixed for final hearing, by virtue of

proviso to sub-section (1), it is open for the

investigating Officer to effect arrest of the applicant.

The direction under sub-section (4), if considered as

an independent and irrespective of interim

protection, will prove to be a mouse trap and not a

protection of personal liberty of the citizen. Being

under the Court directions the applicant would be

obliged to proceed towards the Court and

investigating Officer can wait at the entrance gate

of the Court premises.

The proposition of learned APP that subsection

(4) is an independent power and can be

exercised without granting interim protection is,

therefore, unacceptable, being against the spirit of

provision of anticipatory bail, which is believed to

be for the purpose of protection of personal liberty

guaranteed by the Constitution of India. It must,

therefore, be said that the Court entertaining the

application for anticipatory bail shall be in a

position to insist for personal presence of the

applicant, although in the interest of justice on the

date fixed for final hearing or on any other date

fixed for hearing, provided the applicant is granted

protection by interim anticipatory bail. In case subsections

(3), (4) and (5) are not to be read together

in this fashion, by virtue of proviso to sub-section

(1) the Court itself shall be indulging into

frustrating the petitions.”

18. The observations quoted above are echoed in the

order passed by this Court in the case of Goyappa Jalagiri V.

The State of Maharashtra in Criminal Application No. 4370 of

2004, decided on 20/10/2004, wherein this Court held as

follows:

“P.C.

1. Heard Counsel for the parties.

Perused the record. The Court below, to my

mind, has committed manifest error in

assuming that provisions of sub sections 3 and

4 of section 438 are independent. Sub sections

of Section 438 as applicable to the State of

Maharashtra will have to be read conjointly

and if so read the scheme appears to be that

when the Court insist for appearance of any

applicant before the application is finally heard

or at any other stage of the hearing of the

application, the appropriate course would be to

protect the applicant for the limited purpose so

as to enable him to appear before the Court. If

such limited protection is not extended to the

applicant, the applicant would be obviously

exposed to the threat of arrest and for which

purpose Section 438 has been brought into

force. Viewed in this perspective, the Sessions

Judge, Sangli, has committed manifest error in

proceeding on the assumption that it was not

necessary to extend any protection to the

applicant as to enable him to appear before the

Court. As the court below has not considered

any other aspects on merits, to my mind,

following order will meet the ends of justice:

(a) The applicant is protected for a

period of one week from today to enable him to

make fresh application before the Sessions

Court at Sangli, who in turn shall decide the

same on its own merits in accordance with the

law.

(b) That the applicant will not be

arrested by the police in connection with the

offence registered as C.R. No.6 of 2004 in

Umadi Police Station, Sangli. That will not

preclude the Investigating Officer to ask the

applicant to attend the police station for the

purpose of interrogation till the Anticipatory

Bail Application is disposed of

Application disposed of accordingly.”


19. This Court has followed the said position in its

judgment and order dated 04/12/2009, passed in the case of

Ashik Rameshchandra Shah and Others Vs. State of

Maharashtra (supra). After referring to the said judgments

and quoting from the observations made therein, this Court

held as follows:

“10. I am, therefore, fortified in my view

by virtue of the observations made by the

aforesaid three learned Single Judges of this

Court on this aspect. Therefore, I am of the

view that the learned Sessions Judge clearly

erred in directing the applicants to remain

present in Court without granting any interim

protection in this case.

11. I am informed that the said provision

is being used by the prosecution for the purpose

of arresting the accused and the Courts, very

often, after passing an order under sub-section

(4) of section 438 do not grant any interim

protection. In my view, it would be appropriate,

therefore, to take into consideration the scheme

of section 438 that if an application is preferred

by the prosecution for the purpose of securing

presence of the accused, the Courts, if they

want to pass favourable order granting the

application in such cases it would be

appropriate if some reasons are assigned as to

why it feels that presence of the accused is

necessary and ordinarily should grant interim

protection to the accused so that the

prosecution on the pretext of securing presence

of the accused does not arrest the accused and

make his application infructuous.”

20. The above quoted observations of this Court in the

said judgments are in consonance with the law laid down by

the Hon’ble Supreme Court in the case of Shri Gurbaksh

Singh Sibbia and Others Vs. State of Punjab (supra). While

deliberating upon the manner in which the right of an

accused under Section 438 of the Cr.P.C. is to be exercised, the

Hon’ble Supreme Court in the aforesaid judgment held as

follows:

“26. We find a great deal of substance in

Mr. Tarkunde’s submission that since denial of bail

amounts to deprivation of personal liberty, the

Court should lean against the imposition of

unnecessary restrictions on the scope of Section

438, especially when no such restrictions have

been imposed by the legislature in the terms of

that section. Section 438 is a procedural

provision which is concerned with the personal

liberty of the individual, who is entitled to the

benefit of the presumption of innocence since he

is not, on the date of his application for

anticipatory bail, convicted of the offence in

respect of which he seeks bail. An over-generous

infusion of constraints and conditions which are

not to be found in Section 438 can make its

provisions constitutionally vulnerable since the

right to personal freedom cannot be made to

depend on compliance with unreasonable

restrictions. The beneficent provision contained

in Section 438 must be saved, not jettisoned. No

doubt can linger after the decision in Maneka

Gandhi V. Union of India (1978) 1 SCC 248, that

in order to meet the challenge of Article 21 of the

Constitution, the procedure established by law for

depriving a person of his liberty must be fair, just

and reasonable. Section 438, in the form in

which it is conceived by the legislature, is open to

no exception on the ground that it prescribes a

procedure which is unjust or unfair. We ought, at

all costs, to avoid throwing it open to a

Constitutional challenge by reading words in it

which are not to be found therein.”

21. Thus, insofar as the apprehension of the accused in

the State of Maharashtra in the context of being arrested

when directed to remain present under Section 438(4) of the

Cr.P.C. before the Sessions Court, has been addressed by the

specific observations and law laid down in the

abovementioned judgments. The applicant in the present case

has highlighted the apprehension even when interim

protection is operating during pendency of the anticipatory

bail application before the Sessions Court and the said

application stands finally rejected. It is contended that when

an accused, like the applicant in this application, is directed to

remain present by the Sessions Court under Section 438 of

the Cr.P.C., the moment his application for anticipatory bail is

rejected upon final hearing by the Sessions Court, the interim

protection terminates instantly and the accused is exposed to

the possibility of arrest, while he is yet to exercise his right to

move the High Court in its concurrent jurisdiction under

Section 438 of the Cr.P.C. Thus, in the present case, the

applicant is seeking appropriate directions, which could be

said to be in the nature of a step further than what is already

recognized by this Court in the aforementioned judgments.

22. That the said apprehension is real and not

unfounded is supported by the contents of the 203rd Report of

the Law Commission of India. The learned Senior Counsel

appearing for the applicant is justified in submitting that the

Report of Law Commission can be used as an external aid for

appropriate interpretation of Section 438(4) of the Cr.P.C.,

because the said report specifically deliberates upon an

identical proposed amendment in the Cr.P.C. as applicable to

the entire country. The Hon’ble Supreme Court has held in

the case of Mithilesh Kumari and Another Vs. Prem Behari

Khare (1989) 2 SCC 95, that report of Law Commission of

India may be referred to as an external aid to construction of

provisions of law. In the said Report submitted in December

2007, the Law Commission of India referred to the origins of

the remedy of anticipatory bail incorporated in the Cr.P.C. and

thereupon it came to a considered conclusion that the

proposed amendment, identically worded as the one found in

the Maharashtra Amendment, ought not to be brought into

effect and that the same was required to be omitted, in the

interest of justice. The Law Commission of India in the said

Report has categorically recorded as follows:

“Nevertheless, we are of the view that obligatory

presence of the applicant seeking anticipatory

bail in compliance with Court’s order to that

effect will be antithesis to his right to

anticipatory bail. We are, therefore, of the

considered view that sub-section (1B) should be

omitted from this section.”

23. The Law Commission of India has specifically

referred to the concurrent jurisdiction of the Sessions Court

and the High Court in the context of exercise of original

jurisdiction under Section 438 of the Cr.P.C. and after taking

into consideration the said aspect of the matter, it has found

that such an amendment, making presence of the accused

obligatory, is antithetical to the right of the accused to

anticipatory bail. The Law Commission of India has also

recorded that it is conscious of the fact that the State

Amendment of Maharashtra incorporating sub-section 4 to

Section 438 of the Cr.P.C. has already come into effect from

the year 1993 and yet, a clear opinion is expressed that such

an amendment is an antithesis to the right of anticipatory

bail. In its recommendations at para 7.1 of the aforesaid

203rd Report submitted in December 2007, the Law

Commission of India has specifically recommended that subsection

1(B), identically worded to sub-section 4 of Section

438 of the Maharashtra Amendment to the Cr.P.C., must be

omitted. It is perhaps for this reason that the such an

amendment never found its way in Section 438 of the Cr.P.C.,

as applicable to the other parts of the country.

24. At this stage, it would be appropriate to refer to

the judgment of the Division Bench of this Court in the case

of Abdul Razzak Abdul Sattar and Anr. Vs. State of

Maharashtra and Ors. (supra). By the said judgment, the

Division Bench of this Court has repelled challenge raised to

the Constitutional validity of sub-section 4 to Section 438 of

the Cr.P.C. (Maharashtra Amendment), in the context of

Articles 14 and 21 of the Constitution of India. The Division

Bench of this Court has specifically held that the aforesaid

amendment does not violate Article 21 of the Constitution of

India, because the right conferred to the accused under

Section 438 of the Cr.P.C. is a statutory right, regulated by

certain reasonable restrictions and, therefore, introduction of

sub-section 4 to Section 438 of the Cr.P.C. in the Maharashtra

Amendment, cannot be said to violate the rights of the

accused under Article 21 of the Constitution of India.

25. In the light of the above, this Court is proceeding

on the basis that the requirement of sub-section 4 of Section

438 of the Cr.P.C. as applicable to the State of Maharashtra,

has to be satisfied by the accused when the Court upon an

application of the Prosecutor considers presence of the

accused necessary in the interest of justice at the time of final

hearing of the application. This Court in the aforementioned

judgments has repeatedly held that such applications cannot

be casually moved by the prosecution and they cannot be

routinely allowed by the Sessions Court under Section 438(4)

of the Cr.P.C. It has been also specifically laid down that such

a direction under Section 438(4) of the Cr.P.C. can be issued

for the presence of the accused before the Court at the stage

of final hearing of the application, only where an interim

order of protection from arrest is operating in favour of the

accused. As regards the further step whereby the accused can

knock the doors of this Court i.e. the High Court to invoke

concurrent original jurisdiction under Section 438(4) of the

Cr.P.C., this Court in the case of The State of Maharashtra Vs

Kachrusingh Santaramsingh Rajput (supra), has observed as

follows:

“13. Mr. Loya, learned Counsel for the

respondents, then, indicated to us three

contingencies in which to me guidelines would be

necessary in view of the aforesaid view of the

matter for the Courts below. They are: -

(i) Where interim relief is not granted by

the Court and yet the Court directs the personal

attendance of the accused before the Court at the

final hearing;

(ii) Interim relief is granted and the Court

directs the personal attendance of the accused at

the time of final hearing, and;

(iii) If the application for anticipatory bail

itself is rejected leaving the applicant / accused

without any protection from the Courts.

14. It was submitted that, in these three

contingencies if at all the applicant/accused

wanted to have some recourse to a higher Court

in connection with the relief, then, whether the

Court should consider that aspect for giving some

breathing time to the applicant/accused, in order

to facilitate his approach to a higher Court. The

question in which form a remedy would lie to a

superior Court in first two categories indicated

above, it not for consideration before us. But if at

all the law permits any recourse to a superior

Court against the type of orders indicated in the

first two categories, there should be no reason to

think that anything in the provision would

prevent the Court from considering the prayer of

the applicant / accused for stay of the order,

subject to the considerations to which the Court

must advert under section 438(2) of the Code of

Criminal Procedure. It would be a duty of the

Court to ensure by imposing adequate restriction

on the applicant/accused, that he did not get an

opportunity to flee away or jump the interim bail,

if already granted. It would be possible for the

Court, in such an eventuality, to impose on the

applicant / accused even a restriction as regards

the time within which he should approach a

superior Court and get the necessary orders. It

must be appreciated that the entire section 438 is

being substituted because the legislature had

thought it fit to have it ensured that the accused/

applicant do not misuse the provisions of law for

dodging the legal process or for evading

themselves to be subjected to the due process of

law. If this consideration is borne in mind, it

would certainly be open to the Court to pass,

depending upon the facts of each case, the

appropriate orders. The same should be the

guidelines even in the third contingency, namely,

where the application for anticipatory bail is

finally rejected.”

26. Thus, in the aforesaid judgment of this Court, the

aspect sought to be specifically highlighted on behalf of the

applicant in the present application, has been deliberated

upon and the above quoted observations have been made.

There cannot be any two opinions about serious

apprehension expressed on behalf of the applicant (accused)

that if the interim protection from arrest operating in his

favour during pendency of the application before the Sessions

Court is not extended for a reasonable period of time, in the

event the application is finally rejected upon hearing by the

Sessions Court, there is every possibility of the applicant

being arrested as he is obliged to remain present in the

Sessions Court at the stage of hearing pursuant to direction

given under Section 438(4) of the Cr.P.C. The moment the

applicant (accused) is arrested, upon rejection of his

application by the Sessions Court, he is clearly deprived of his

right to move this Court i.e. the High Court for invoking the

concurrent jurisdiction to seek anticipatory bail under Section

438 of the Cr.P.C. It is clear that in the absence of extension

of the interim order of protection operating in favour of the

accused during pendency of the application for anticipatory

bail before the Sessions Court, the right available to the

accused to move this Court i.e. the High Court will stand

frustrated if he is arrested and such arrest will obviously be

facilitated by the direction of the Sessions Court under

Section 438(4) of the Cr.P.C. This would not only be

antithetical to the right of the accused to move the High

Court under Section 438 of the Cr.P.C. but it would strike at

the root of the right guaranteed under Article 21 of the

Constitution of India.

27. This aspect also indicates that the Sessions Court

needs to pass the order directing presence of the accused at

the time of final hearing under Section 438(4) of the Cr.P.C.,

only in cases where the Court is of the opinion that there is

possibility of the applicant absconding or that the presence of

the applicant (accused) is necessary to ensure continued

cooperation with the investigation even after final disposal of

the application for anticipatory bail by the Sessions Court.

The prosecution cannot be permitted to move applications

under Section 438(4) of Cr.P.C. in a casual manner and the

Sessions Court is also expected not to routinely allow such

applications moved on behalf of the prosecution. This is

because the expression “in the interest of justice” has to be

construed in the interest of both the prosecution as well as

accused and the Court is obliged to strike a balance between

the interests of the two, while considering the application

under Section 438(4) of the Cr.P.C.

28. It is not as if the Sessions Court is powerless in

imposing further conditions while extending interim

protection granted to an accused, while finally rejecting the

application for anticipatory bail. The Sessions Court can

insist upon continuing the conditions already imposed or

imposing further stringent conditions in the interest of justice

so that the abscondence of the accused is not only

discouraged but obviated. At the same time, the accused is

not deprived of an opportunity to place his case before the

High Court by invoking concurrent original jurisdiction for

seeking anticipatory bail under Section 438 of the Cr.P.C.

Therefore, this Court finds that there is substance in the

contentions raised on behalf of the applicant and that this

application deserves to be disposed of by issuing appropriate

directions in the matter.

29. This Court is conscious of the fact that the purpose

for which the applicant had challenged the impugned order

had served its purpose when interim relief was granted in this

application by directing that if the Sessions Court passed any

adverse order of rejection of anticipatory bail, the interim

pre-arrest protection operating in his favour would continue

to operate for a period of 72 hours to enable the applicant to

approach this Court. It is undisputed that the application for

anticipatory bail of the applicant was finally disposed of and

the limited interim relief granted by this Court served the

purpose, insofar as applicant before this Court is concerned.

30. In any case, this Court has perused the impugned

order. It is found that the applications at Exhs.7 and 8 moved

on behalf of the Investigating officer and the Prosecutor did

not divulge any reasons as to why presence of the applicant

was necessary in the interest of justice at the time of final

hearing of the application for anticipatory bail. The

impugned order passed by the Court of Additional Sessions

Judge at Nagpur, allowing the aforesaid applications at

Exhs.7 and 8 also does not record any specific reason, other

than the merely recording that a non-cognizable report was

registered against the applicant at a Police Station. This Court

is of the opinion that the applications moved on behalf of the

Investigating officer and the Public Prosecutor at Exhs. 7 and

8 did not divulge sufficient reasons for seeking presence of

the applicant at the time of final hearing of the application

for anticipatory bail. Equally, the Court of Additional Sessions

Judge, Nagpur, in the present case allowed the said

applications by the impugned order in a casual manner.

Therefore, even though the purpose for which the present

application was filed by the applicant was served by the

interim order passed in his favour, this Court is of the opinion

that the impugned order cannot be sustained.

31. In view of the above, the present application is

disposed of as follows:

a) The impugned order is quashed and set aside.

b) In order to address the aforesaid apprehension of

accused persons in the State of Maharashtra of the

possibility of arrest upon remaining present before the

Sessions Court pursuant to direction under Section

438(4) of the Cr.P.C. (Maharashtra Amendment), and

rejection of their application for anticipatory bail, the

following directions are issued:

(i) The Prosecutor under Section 438(4) of the

Cr.P.C. (Maharashtra Amendment) shall state

cogent reasons while seeking the obligatory

presence of the accused before the Sessions

Court at the time of final hearing of the

application for anticipatory bail.

(ii) The Sessions Court shall consider such an

application and pass a reasoned order as to why

the presence of the accused is necessary, in the

interest of justice, at the time of final hearing of

application for grant of anticipatory bail.

(iii) If the Sessions Court rejects the application for

anticipatory bail upon final hearing and the

accused is present before the Sessions Court in

pursuance of directions given under Section

438(4) of the Cr.P.C. (Maharashtra Amendment),

the Court shall extend the interim protection

operating in favour of the accused for a

minimum period of three working days, on the

same conditions on which interim protection was

granted during pendency of the application for

anticipatory bail or on such further conditions as

the Sessions Court may deem fit, in the interest

of justice.

(iv) In cases where the Sessions Court deems it

appropriate to grant extension of interim

protection for more than three working days, it

shall record reasons for the same and in any

case, such extension of interim protection upon

existing conditions or further stringent

conditions, shall not exceed a period of seven

working days.

(v) The accused shall abide by the conditions so

imposed by the Sessions Court while granting

extension of interim protection, failing which

such interim protection shall cease to operate

instantaneously.

32. Application stands disposed of in above terms.

JUDGE


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