Rejection of Anticipatory Bail but accused was granted three days protection from arrest u/s 438(4) Cr.P.C: High Court of Bombay

The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the court, if an application make to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice. In the context of Criminal Application (APL) No.393 of 2021, Dr. Sameer Narayanrao Paltewar versus The State of Maharashtra, through police station office. Mr. Avinash Gupta, Senior advocate with Mr. Akash Gupta, advocate for the applicant. Mr. S.A.Ashirgade, (APP) for the respondent. Mr. Shyam Dewani, Advocate and Mr. Sahil Dewani, advocate for the intervenor. The judgement was given by Hon’ble Manish Pitale.J.

The background of the case goes hereby, The court heard a Nagpur based neurosurgeon’s plea seeking directions to obliviate the possibility of arrest an accused is faced with when he remains present at the time of final hearing of ABA, abiding by the Sessions Court’s order. The Surgeon was booked for 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 for fraud and cheating. He approached the High Court as the Sessions Court hearing his anticipatory bail application ordered him to remain present at the time of final hearing.

APP for the state S.A. Ashirgade submitted that there was a possibility that the accused may be arrested in the absence of interim protection. But, he cited the Division Bench’s judgement in the case of Abdul Razzak Abdul Sattar and Anr. Versus State of Maharastra and Ors., and another judgement rejecting a plea challenging the constitutional validity of Section 438(4) of the Cr.P.C. applicable to the State of Maharashtra, as being violative of Articles 14 and 21 of the Constitution of India.

The Bench then issued the following directions:
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 the root of the right guaranteed under Article 21 of the Constitution of India,” Justice Manish Pitale observed.

  • The prosecutor under Section 438(4) of the Cr.P.C. (Maharashtra Amendment) shall state cogent reasons while seeking the accused’s presence at the time of final hearing of the application for anticipatory bail.
  • The Sessions Court shall consider such an application and pass a reasoned order as to why the presence of the accused is necessary, at the time of final hearing of the application for grant of anticipatory bail.
  • If the Sessions Court rejects the application for anticipatory bail and the accused is present pursuant to the court’s directions 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 the pendency of the application for anticipatory bail or on such further conditions as the Sessions Court may deem fit, in the interest of justice.
  • In cases where the Sessions Court deems it appropriate to grant an 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 on existing conditions or further stringent conditions, shall not exceed a period of seven working days.”


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