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.
 on 21 08 2021 on 24 08 1 apl 393 2021 J.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYNAGPUR BENCH AT NAGPURCriminal ApplicationNo. 3921APPLICANT:Dr. Sameer Narayanrao Paltewar Aged 51 years Occupation : Medical Practitioner Neuro Surgeon Resident of 502 Le Prestige 105 106 Farmland Ramdaspeth Nagpur 440 010.Vs.RESPONDENT : The State of Maharashtra through Police Station Officer Police Station Sitabuldi NagpurMr. Avinash Gupta Senior Advocate with Mr. Akash Gupta Advocate for the applicantMr. S.A. Ashirgade APP for the respondent Mr. Shyam Dewani Advocate and Mr. Sahil Dewani Advocatefor the intervenorCORAM : MANISH PITALE J.RESERVED ON : JULY 27 2021PRONOUNCED ON: AUGUST 21 2021 JUDGMENT Heard finally.2.What is the fate of an accused in the State ofMaharashtra who is directed to remain present in the SessionsCourt pursuant to a direction under Section 438(4) of the on 21 08 2021 on 24 08 2 apl 393 2021 J.odtCode of Criminal Procedure 1973and his applicationfor anticipatory bail is rejected Is he not exposed toimmediate arrest as the interim protection operating duringpendency of the application vanishes with the dismissal of theapplication Is he then not deprived of opportunity to movethe High Court for grant of anticipatory bail by invoking theconcurrent jurisdiction of the High Court under Section 438of the Cr.P.C. These are the questions that fall forconsideration in the present application. 3.The applicant before this Court contends thatappropriate directions are required from this Court in thecontext of Section 438(4) of the Cr.P.C. MaharashtraAmendment so as to ensure that the very remedy of pre arrest bail or anticipatory bail is not frustrated when theSessions Court directs the accused to remain present underthe said provision at the time of final hearing of theapplication for anticipatory bail. The contention is that whenthe presence of the accused is insisted upon under Section438(4) of Cr.P.C. in the eventuality of the application foranticipatory bail being rejected interim protection needs tobe extended for a reasonable time so that the accused is notdeprived of the opportunity to knock the doors of the High on 21 08 2021 on 24 08 3 apl 393 2021 J.odtCourt to seek anticipatory bail as the High Court exercisesconcurrent jurisdiction in the matter. The submission is thatin the absence of any such direction the moment ananticipatory bail application of an accused is rejected and theapplicantis obliged to remain present before theSessions Court pursuant to direction under Section 438(4) ofCr.P.C. there is every possibility of the Investigating Officerarresting the accused then and there as a result of which theaccused would stand deprived of approaching the High Court thereby frustrating the very remedy available under Section438 of Cr.P.C.4.The applicant before this Court is a Nero Surgeon practicing since 1999 who has worked as a Lecturer in SionHospital at Mumbai and who has been instrumental inestablishing the Neuro Science Department of a SuperSpecialty Hospital at Nagpur. The complainant and theapplicant are the Directors of a company operating the saidHospital and the complainant has lodged a criminalcomplaint due to disputes that have arisen bearing CrimeNo. 77 2021 against the applicant for offences punishableunder Sections 406 409 420 465 467 468 and 471 of theIndian Penal Codeand Section 66 C of the Information on 21 08 2021 on 24 08 4 apl 393 2021 J.odtTechnology Act 2000.5.The applicant filed an application for grant ofanticipatory bail before the Sessions Court wherein on22 02 2021 ad interim protection was granted in favour ofthe applicant and he was told to co operate with theinvestigation. Upon notice being issued in the saidapplication the Public Prosecutor appeared in the matter anda counsel also represented the complainant to assist theProsecutor. The applicant states that the counsel representingthe complainant applied before the Public Prosecutor seekinga direction for personal presence of the applicant at the timeof final hearing of the anticipatory bail application.Thereafter the Investigating Officer and the Prosecutormoved applications seeking presence of the applicant in theCourt at the time of final hearing of the anticipatory bailapplication. On 05 03 2021 the Court of Additional SessionsJudge6 Nagpur allowed the applications and directed theapplicant to remain present in the Court at the time of finalhearing of the application for anticipatory bail.6.Aggrieved by the same the applicant filed thepresent application wherein this Court passed an order on on 21 08 2021 on 24 08 5 apl 393 2021 J.odt09 03 2021 admitting the application and recorded theaforesaid contentions raised in the matter pertaining to thescope and amplitude of Section 438(4) of Cr.P.C. as applicableto the State of Maharashtra. Interim order was passed infavour of the applicant to the effect that if the Sessions Courtrejected the anticipatory bail application the interimprotection operating in favour of the applicant wouldcontinue for a period of 72 hours to enable him to approachthis Court. The complainant filed an intervention applicationand appeared through counsel. The public Prosecutorrepresented the State.7.Mr. Avinash Gupta learned Senior Counselappearing along with Mr. Akash Gupta learned Counsel forthe applicant submitted that the power to grant anticipatorybail under Section 438 of Cr.P.C. is exercised concurrently bythe Sessions Court and this Court. It was submitted that Sub sectionto Section 438 of Cr.P.C. as applicable to the Stateof Maharashtra creates a situation that when the Courtdirects presence of the applicantin the Court on anapplication moved by the Prosecutor unless there is an ordergranting interim protection from arrest to the applicant thereis every possibility of the applicant being arrested on his on 21 08 2021 on 24 08 6 apl 393 2021 J.odtremaining present in the Court thereby frustrating the veryright available under the said provision. It is submitted thatthis Court to address the said situation has repeatedly heldthat when the Sessions Court exercises its power underSection 438(4) of Cr.P.C. directing the accused to remainpresent in the Court at the stage of final hearing there has tobe interim protection from arrest in favour of the accused. Inother words it is already held by this Court that the directionto the accused to remain present in the Court by exercisingpower under Section 438(4) of Cr.P.C. can be granted onlywhen interim protection is already operating in favour of suchan accused. 8.But the learned Senior Counsel submits that theapplicant in the present case seeks to highlight the plight ofan accused when he remains present in the Court at the stageof final hearing of the application for grant of anticipatorybail while interim protection is operating. In the eventualitythat the application is rejected upon final hearing unlessprotection is extended further for a reasonable period of timeto approach the High Court for grant of anticipatory bail theaccused stands exposed to the possibility of arrest. As a result in the event of his immediate arrest he is deprived of an on 21 08 2021 on 24 08 7 apl 393 2021 J.odtopportunity to move the High Court having the consequenceof frustrating the right available under Section 438(4) ofCr.P.C. to move the High Court for consideration of his prayerfor grant of anticipatory bail. The learned Senior Counselsubmits that the Maharashtra Amendment to Section 438 ofCr.P.C. incorporating sub sectiontherein ought to be readin such a fashion that it operates in the interest of justice andin the interest of the prosecution as well as the accused. It issubmitted that the Court can continue the conditions imposedfor grant of interim protection during pendency of theapplication before the Sessions Court or the Court can imposefurther conditions also while extending the interimprotection for a reasonable period of time in the interest ofjustice. The learned Senior Counsel emphasized that theexpression “interest of justice” used in Section 438(4) of theCr.P.C. as applicable to the State of Maharashtra ought not tobe interpreted in a narrow fashion to mean only the interestof prosecution but also to take care of the interest of theaccused.9.The learned Senior Counsel relied upon judgmentsof the Hon’ble Supreme Court in the cases of Shri GurbakshSingh Sibbia and Others Vs. State of Punjab2 SCC on 21 08 2021 on 24 08 8 apl 393 2021 J.odt565 Sushila Aggarwal and Others Vs. State5 SCC 1 and judgment and order dated04 12 2009 passed by this Court in Criminal Application No.53009of the Cr.P.C. as applicable to the State ofMaharashtra operates in furtherance of justice and theinterpretation that frustrates the very right provided underSection 438 of the Cr.P.C. is eschewed. 10.Mr. S.A. Ashirgade learned APP appeared onbehalf of the respondent State and submitted that theapprehension expressed on behalf of the applicant that in theabsence of interim protection being continued there wasdistinct possibility of the accused being arrested uponrejection of the application for anticipatory bail by theSessions Court could not be said to be unjustified. The on 21 08 2021 on 24 08 9 apl 393 2021 J.odtlearned APP further submitted that there can be no doubtabout the fact that the Sessions Court and High Court doexercise concurrent jurisdiction insofar as Section 438 ofCr.P.C. is concerned. But attention of this Court was invitedto judgment of the Division Bench of this Court in the case ofAbdul Razzak Abdul Sattar and Anr. Vs. State of Maharashtraand Ors. judgment and order dated 19 07 2011 passed inCriminal Writ Petition No. 3511 wherein the aforesaidspecific provision i.e. under Section 438(4) of the Cr.P.C.applicable to the State of Maharashtra was challenged on theground that it violated Articles 14 and 21 of the Constitutionof India. It was submitted that by the said judgment aDivision Bench of this Court rejected the challenge raised tothe validity of Section 438(4) of the Cr.P.C. It was specificallyheld that the said provision could not be said to violate Article21 of the Constitution of India. On this basis it wassubmitted that the direction given in the present case by theimpugned order dated 05 03 2021 by exercise of powerunder Section 438(4) of the Cr.P.C. could not be said to beimproper on the part of the Sessions Court. The learned APPsubmitted that the contents of the 203rd Report of the LawCommission could not be disputed and this Court may passappropriate directions in the context of the apprehension on 21 08 2021 on 24 08 10 apl 393 2021 J.odtexpressed by the learned Senior Counsel appearing for theapplicantin the interest of justice. 11.Mr. Sahil Dewani learned counsel appearing forthe intervenorsubmitted that thepresent application was rendered infructuous in view of thefact that this Court had granted interim relief to the applicantby directing that if the Sessions Court passed any adverseorder of rejection of anticipatory bail the interim protectionoperating in favour of the applicant would continue tooperate for further period of 72 hours to enable the applicantto approach this Court. On this basis it was submitted thatthe present application had served its purpose. On thespecific contentions raised on behalf of the applicant thelearned counsel appearing for the intervenor also relied uponthe aforesaid Division Bench judgment in the case of AbdulRazzak Abdul Sattar and Anr. Vs. State of Maharashtra andOrs.3 Bom CR 348 wherein this Court had an occasion to comment upon theapprehension expressed on behalf of the applicant. on 21 08 2021 on 24 08 11 apl 393 2021 J.odt12.Having heard the learned counsel appearing forthe rival parties this Court is called upon to consider as towhether appropriate directions need to be given in order toaddress the apprehension of the accused in the State ofMaharashtra in the context of Section 438(4) of the Cr.P.C.This Court needs to consider as to whether the accused isentitled for appropriate directions extending the interimprotection operating during pendency of the anticipatory bailapplication before the Sessions Court for a reasonable period in the event the application is rejected upon final hearing soas to enable the applicant to approach the High Court byinvoking concurrent jurisdiction under Section 438 of theCr.P.C.13.This Court is of the opinion that even though inthe present case the applicant was granted interim relief theissue raised on behalf of the applicant is recurring and that itneeds to be decided on merits. Before considering the rivalarguments and the relevant material produced before thisCourt it would be appropriate to reproduce the aforesaidprovision as applicable in the State of Maharashtra. “Substitution of section 438 of Act 74 : For section 438 of the Code of Criminal on 21 08 2021 on 24 08 12 apl 393 2021 J.odtProcedure 1973in its application tothe State of Maharashtra the following sectionshall be substituted namely : 438. Direction for grant of bail to personapprehending arrest. When any person hasreason to believe that he may be arrested on anaccusation of having committed a non bailableoffence he may apply to the High Court or theCourt of Session for a direction under this sectionthat in the event of such arrest he shall bereleased on bail and High Court may after takinginto consideration inter alia the following factors: The nature and gravity or seriousnessof the accusation as apprehended by theapplicantthe Courtshall indicate therein the date on which theapplication for grant of anticipatory bail shall befinally heard for passed on order thereon as theCourt may deem fit and if the Court passes anyorder granting anticipatory bail such order shallinclude inter alia the following conditions namely on 21 08 2021 on 24 08 13 apl 393 2021 J.odt:of section 437 as ifthe bail was granted under that section.(3)Where the Court grants an interimorder under sub sectionit shall forthwithcause a notice being not less than seven daysnotice together with a copy of such order to beserved on the Public Prosecutor and theCommissioner of Police or the as the case may be the concerned Superintendent of Police with aview to give the Public Prosecutor a reasonableopportunity of being heard when the applicationshall be finally heard by the Court.(4)The presence of the applicant seekinganticipatory bail shall be obligatory at the time offinal hearing of the application and passing of thefinal order by the Court if on an application madeto it by the Public Prosecutor the Court considerssuch presence necessary in the interest of justice.(5)On the date indicated in the interimorder under sub sectionthe Court shall hearthe Public Prosecutor and the applicant and afterdue consideration of their contentions it mayeither confirm modify or cancel the interim ordermade under sub sectionbefore the Court at the time of final hearing of anapplication for anticipatory bail and the Court considers suchpresence necessary and in the interest of justice it becomesobligatory for the accused to remain present before the Court.The physical presence of the applicantbefore theCourt at the stage of final hearing obviously exposes him toarrest the moment his application for anticipatory bail isdismissed upon final hearing. It is obvious that the momentthe applicantis arrested his right to move the HighCourt under Section 438 of Cr.P.C. invoking the concurrentjurisdiction vested in the High Court stands forfeited andfrustrated. 15.There can be no doubt about the fact that theSessions Court as well as the High Court exercise concurrentjurisdiction insofar as applications under Section 438 of theCr.P.C. are concerned. This is because the words used in theabove quoted provision are “he may apply to the High Courtor the Court of Sessions for a direction under this Section….”. The Law Commission of India in the aforementioned203rd Report has also deliberated upon the said concurrentjurisdiction of the Sessions Court and the High Court in thematter of applications under Section 438 of the Cr.P.C. and on 21 08 2021 on 24 08 15 apl 393 2021 J.odtcommented upon the then proposed amendment in Section438 of the Cr.P.C. which ultimately did not fructify in theCr.P.C. as generally applicable but nevertheless found itsway in the said provision as applicable to the State ofMaharashtra. Thus it is an undeniable fact that the SessionsCourt as well as the High Court exercise concurrentjurisdiction insofar as applications for anticipatory bail underSection 438 of the Cr.P.C. are concerned.16.By now it is also a settled position of law asreferred in the aforesaid 203rd Report of the Law Commissionof India submitted in December 2007 that an accused isexpected to first approach the Sessions Court to seekanticipatory bail and if an adverse order is passed to thenapproach the High Court seeking anticipatory bail underSection 438 of the Cr.P.C. Therefore this two stage process ofexercising right to move the Sessions Court initially and thenthe High Court for seeking anticipatory bail under Section438 of the Cr.P.C. has been recognized.17.Initially when the question arose regarding plightof an accused not having interim protection during thependency of anticipatory bail application before the Sessions on 21 08 2021 on 24 08 16 apl 393 2021 J.odtCourt and then being directed to appear before the SessionsCourt at the stage of final hearing under Section 438(4) of theCr.P.C. this Court held in various orders that if a directionwas to be given to the accused to remain present in Courtunder Section 438(4) of the Cr.P.C. interim protection oughtto be operating in his favour. In the case of The State ofMaharashtra Vs Kachrusingh Santaramsingh Rajputthis Court considered the aforesaid aspect of the matter andheld that the very purpose of introducing Section 438 in theCr.P.C. and the new form in which it was brought into forcein the State of Maharashtra was to strike a balance betweenthe interest of the State to investigate through police intooffences according to established procedure of law and theindividual liberties of a person accused of serious crimes. Theexpression “in the interest of justice” was deliberated uponand it was held that the said expression was not limited toconcern for the rights of the accused but also the duty of theState to investigate into serious offences in a proper andefficient manner. In the case of Vijaya Ramesh Ramdasi V.State of Maharashtra decided on 20 03 2001 this Court held as follows:“8.While considering whether the grant ofinterim anticipatory bail is sine qua non for theCourt to order personal presence of the applicant onthe date fixed for final hearing practical effect of on 21 08 2021 on 24 08 17 apl 393 2021 J.odtthe scheme as a whole must be taken intoconsideration. In case the applicant is not grantedinterim anticipatory protection and still the Courtdirects the applicant to remain present in the Courton the date fixed for final hearing by virtue ofproviso to sub sectionit is open for theinvestigating Officer to effect arrest of the applicant.The direction under sub sectionif considered asan independent and irrespective of interimprotection will prove to be a mouse trap and not aprotection of personal liberty of the citizen. Beingunder the Court directions the applicant would beobliged to proceed towards the Court andinvestigating Officer can wait at the entrance gateof the Court premises.The proposition of learned APP that sub sectionis an independent power and can beexercised without granting interim protection is therefore unacceptable being against the spirit ofprovision of anticipatory bail which is believed tobe for the purpose of protection of personal libertyguaranteed by the Constitution of India. It must therefore be said that the Court entertaining theapplication for anticipatory bail shall be in aposition to insist for personal presence of theapplicant although in the interest of justice on thedate fixed for final hearing or on any other datefixed for hearing provided the applicant is grantedprotection by interim anticipatory bail. In case sub sections(4) andare not to be read togetherin this fashion by virtue of proviso to sub section(1) the Court itself shall be indulging intofrustrating the petitions.”18.The observations quoted above are echoed in theorder passed by this Court in the case of Goyappa Jalagiri V.The State of Maharashtra in Criminal Application No. 4370 of2004 decided on 20 10 2004 wherein this Court held asfollows: on 21 08 2021 on 24 08 18 apl 393 2021 J.odt“P.C.1.Heard Counsel for the parties.Perused the record. The Court below to mymind has committed manifest error inassuming that provisions of sub sections 3 and4 of section 438 are independent. Sub sectionsof Section 438 as applicable to the State ofMaharashtra will have to be read conjointlyand if so read the scheme appears to be thatwhen the Court insist for appearance of anyapplicant before the application is finally heardor at any other stage of the hearing of theapplication the appropriate course would be toprotect the applicant for the limited purpose soas to enable him to appear before the Court. Ifsuch limited protection is not extended to theapplicant the applicant would be obviouslyexposed to the threat of arrest and for whichpurpose Section 438 has been brought intoforce. Viewed in this perspective the SessionsJudge Sangli has committed manifest error inproceeding on the assumption that it was notnecessary to extend any protection to theapplicant as to enable him to appear before theCourt. As the court below has not consideredany other aspects on merits to my mind following order will meet the ends of justice: of section 438 do not grant any interimprotection. In my view it would be appropriate therefore to take into consideration the schemeof section 438 that if an application is preferredby the prosecution for the purpose of securingpresence of the accused the Courts if theywant to pass favourable order granting theapplication in such cases it would beappropriate if some reasons are assigned as towhy it feels that presence of the accused isnecessary and ordinarily should grant interimprotection to the accused so that theprosecution on the pretext of securing presenceof the accused does not arrest the accused andmake his application infructuous.” 20.The above quoted observations of this Court in thesaid judgments are in consonance with the law laid down by on 21 08 2021 on 24 08 20 apl 393 2021 J.odtthe Hon’ble Supreme Court in the case of Shri GurbakshSingh Sibbia and Others Vs. State of Punjab1 SCC 248 thatin order to meet the challenge of Article 21 of theConstitution the procedure established by law fordepriving a person of his liberty must be fair justand reasonable. Section 438 in the form inwhich it is conceived by the legislature is open tono exception on the ground that it prescribes aprocedure which is unjust or unfair. We ought atall costs to avoid throwing it open to aConstitutional challenge by reading words in itwhich are not to be found therein.” on 21 08 2021 on 24 08 21 apl 393 2021 J.odt21.Thus insofar as the apprehension of the accused inthe State of Maharashtra in the context of being arrestedwhen directed to remain present under Section 438(4) of theCr.P.C. before the Sessions Court has been addressed by thespecific observations and law laid down in theabovementioned judgments. The applicant in the present casehas highlighted the apprehension even when interimprotection is operating during pendency of the anticipatorybail application before the Sessions Court and the saidapplication stands finally rejected. It is contended that whenan accused like the applicant in this application is directed toremain present by the Sessions Court under Section 438 ofthe Cr.P.C. the moment his application for anticipatory bail isrejected upon final hearing by the Sessions Court the interimprotection terminates instantly and the accused is exposed tothe possibility of arrest while he is yet to exercise his right tomove the High Court in its concurrent jurisdiction underSection 438 of the Cr.P.C. Thus in the present case theapplicant is seeking appropriate directions which could besaid to be in the nature of a step further than what is alreadyrecognized by this Court in the aforementioned judgments.22.That the said apprehension is real and not on 21 08 2021 on 24 08 22 apl 393 2021 J.odtunfounded is supported by the contents of the 203rd Report ofthe Law Commission of India. The learned Senior Counselappearing for the applicant is justified in submitting that theReport of Law Commission can be used as an external aid forappropriate interpretation of Section 438(4) of the Cr.P.C. because the said report specifically deliberates upon anidentical proposed amendment in the Cr.P.C. as applicable tothe entire country. The Hon’ble Supreme Court has held inthe case of Mithilesh Kumari and Another Vs. Prem BehariKhare2 SCC 95 that report of Law Commission ofIndia may be referred to as an external aid to construction ofprovisions of law. In the said Report submitted in December2007 the Law Commission of India referred to the origins ofthe remedy of anticipatory bail incorporated in the Cr.P.C. andthereupon it came to a considered conclusion that theproposed amendment identically worded as the one found inthe Maharashtra Amendment ought not to be brought intoeffect and that the same was required to be omitted in theinterest of justice. The Law Commission of India in the saidReport has categorically recorded as follows:“Nevertheless we are of the view that obligatorypresence of the applicant seeking anticipatorybail in compliance with Court’s order to thateffect will be antithesis to his right toanticipatory bail. We are therefore of theconsidered view that sub sectionshould be on 21 08 2021 on 24 08 23 apl 393 2021 J.odtomitted from this section.”23.The Law Commission of India has specificallyreferred to the concurrent jurisdiction of the Sessions Courtand the High Court in the context of exercise of originaljurisdiction under Section 438 of the Cr.P.C. and after takinginto consideration the said aspect of the matter it has foundthat such an amendment making presence of the accusedobligatory is antithetical to the right of the accused toanticipatory bail. The Law Commission of India has alsorecorded that it is conscious of the fact that the StateAmendment of Maharashtra incorporating sub section 4 toSection 438 of the Cr.P.C. has already come into effect fromthe year 1993 and yet a clear opinion is expressed that suchan amendment is an antithesis to the right of anticipatorybail. In its recommendations at para 7.1 of the aforesaid203rd Report submitted in December 2007 the LawCommission of India has specifically recommended that sub section 1(B) identically worded to sub section 4 of Section438 of the Maharashtra Amendment to the Cr.P.C. must beomitted. It is perhaps for this reason that the such anamendment never found its way in Section 438 of the Cr.P.C. as applicable to the other parts of the country. on 21 08 2021 on 24 08 24 apl 393 2021 J.odt24.At this stage it would be appropriate to refer tothe judgment of the Division Bench of this Court in the caseof Abdul Razzak Abdul Sattar and Anr. Vs. State ofMaharashtra and Ors.in the context ofArticles 14 and 21 of the Constitution of India. The DivisionBench of this Court has specifically held that the aforesaidamendment does not violate Article 21 of the Constitution ofIndia because the right conferred to the accused underSection 438 of the Cr.P.C. is a statutory right regulated bycertain reasonable restrictions and therefore introduction ofsub section 4 to Section 438 of the Cr.P.C. in the MaharashtraAmendment cannot be said to violate the rights of theaccused under Article 21 of the Constitution of India. 25.In the light of the above this Court is proceedingon the basis that the requirement of sub section 4 of Section438 of the Cr.P.C. as applicable to the State of Maharashtra has to be satisfied by the accused when the Court upon anapplication of the Prosecutor considers presence of theaccused necessary in the interest of justice at the time of final on 21 08 2021 on 24 08 25 apl 393 2021 J.odthearing of the application. This Court in the aforementionedjudgments has repeatedly held that such applications cannotbe casually moved by the prosecution and they cannot beroutinely allowed by the Sessions Court under Section 438(4)of the Cr.P.C. It has been also specifically laid down that sucha direction under Section 438(4) of the Cr.P.C. can be issuedfor the presence of the accused before the Court at the stageof final hearing of the application only where an interimorder of protection from arrest is operating in favour of theaccused. As regards the further step whereby the accused canknock the doors of this Court i.e. the High Court to invokeconcurrent original jurisdiction under Section 438(4) of theCr.P.C. this Court in the case of The State of Maharashtra VsKachrusingh Santaramsingh Rajputhas observed asfollows:“13.Mr. Loya learned Counsel for therespondents then indicated to us threecontingencies in which to me guidelines would benecessary in view of the aforesaid view of thematter for the Courts below. They are: Where interim relief is not granted bythe Court and yet the Court directs the personalattendance of the accused before the Court at thefinal hearingof the Code ofCriminal Procedure. It would be a duty of theCourt to ensure by imposing adequate restrictionon the applicant accused that he did not get anopportunity to flee away or jump the interim bail if already granted. It would be possible for theCourt in such an eventuality to impose on theapplicant accused even a restriction as regardsthe time within which he should approach asuperior Court and get the necessary orders. Itmust be appreciated that the entire section 438 isbeing substituted because the legislature hadthought it fit to have it ensured that the accused applicant do not misuse the provisions of law fordodging the legal process or for evadingthemselves to be subjected to the due process oflaw. If this consideration is borne in mind itwould certainly be open to the Court to pass depending upon the facts of each case theappropriate orders. The same should be theguidelines even in the third contingency namely where the application for anticipatory bail isfinally rejected.”26.Thus in the aforesaid judgment of this Court theaspect sought to be specifically highlighted on behalf of the on 21 08 2021 on 24 08 27 apl 393 2021 J.odtapplicant in the present application has been deliberatedupon and the above quoted observations have been made.There cannot be any two opinions about seriousapprehension expressed on behalf of the applicantof the Cr.P.C. The moment theapplicantis arrested upon rejection of hisapplication by the Sessions Court he is clearly deprived of hisright to move this Court i.e. the High Court for invoking theconcurrent jurisdiction to seek anticipatory bail under Section438 of the Cr.P.C. It is clear that in the absence of extensionof the interim order of protection operating in favour of theaccused during pendency of the application for anticipatorybail before the Sessions Court the right available to theaccused to move this Court i.e. the High Court will standfrustrated if he is arrested and such arrest will obviously befacilitated by the direction of the Sessions Court under on 21 08 2021 on 24 08 28 apl 393 2021 J.odtSection 438(4) of the Cr.P.C. This would not only beantithetical to the right of the accused to move the HighCourt under Section 438 of the Cr.P.C. but it would strike atthe root of the right guaranteed under Article 21 of theConstitution of India.27.This aspect also indicates that the Sessions Courtneeds to pass the order directing presence of the accused atthe 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 ispossibility of the applicant absconding or that the presence ofthe applicantis necessary to ensure continuedcooperation with the investigation even after final disposal ofthe application for anticipatory bail by the Sessions Court.The prosecution cannot be permitted to move applicationsunder Section 438(4) of Cr.P.C. in a casual manner and theSessions Court is also expected not to routinely allow suchapplications moved on behalf of the prosecution. This isbecause the expression “in the interest of justice” has to beconstrued in the interest of both the prosecution as well asaccused and the Court is obliged to strike a balance betweenthe interests of the two while considering the applicationunder Section 438(4) of the Cr.P.C. on 21 08 2021 on 24 08 29 apl 393 2021 J.odt28.It is not as if the Sessions Court is powerless inimposing further conditions while extending interimprotection granted to an accused while finally rejecting theapplication for anticipatory bail. The Sessions Court caninsist upon continuing the conditions already imposed orimposing further stringent conditions in the interest of justiceso that the abscondence of the accused is not onlydiscouraged but obviated. At the same time the accused isnot deprived of an opportunity to place his case before theHigh Court by invoking concurrent original jurisdiction forseeking anticipatory bail under Section 438 of the Cr.P.C.Therefore this Court finds that there is substance in thecontentions raised on behalf of the applicant and that thisapplication deserves to be disposed of by issuing appropriatedirections in the matter. 29.This Court is conscious of the fact that the purposefor which the applicant had challenged the impugned orderhad served its purpose when interim relief was granted in thisapplication by directing that if the Sessions Court passed anyadverse order of rejection of anticipatory bail the interimpre arrest protection operating in his favour would continue on 21 08 2021 on 24 08 30 apl 393 2021 J.odtto operate for a period of 72 hours to enable the applicant toapproach this Court. It is undisputed that the application foranticipatory bail of the applicant was finally disposed of andthe limited interim relief granted by this Court served thepurpose insofar as applicant before this Court is concerned.30.In any case this Court has perused the impugnedorder. It is found that the applications at Exhs.7 and 8 movedon behalf of the Investigating officer and the Prosecutor didnot divulge any reasons as to why presence of the applicantwas necessary in the interest of justice at the time of finalhearing of the application for anticipatory bail. Theimpugned order passed by the Court of Additional SessionsJudge at Nagpur allowing the aforesaid applications atExhs.7 and 8 also does not record any specific reason otherthan the merely recording that a non cognizable report wasregistered against the applicant at a Police Station. This Courtis of the opinion that the applications moved on behalf of theInvestigating officer and the Public Prosecutor at Exhs. 7 and8 did not divulge sufficient reasons for seeking presence ofthe applicant at the time of final hearing of the applicationfor anticipatory bail. Equally the Court of Additional SessionsJudge Nagpur in the present case allowed the said on 21 08 2021 on 24 08 31 apl 393 2021 J.odtapplications by the impugned order in a casual manner.Therefore even though the purpose for which the presentapplication was filed by the applicant was served by theinterim order passed in his favour this Court is of the opinionthat the impugned order cannot be sustained. 31.In view of the above the present application isdisposed of as follows:a)The impugned order is quashed and set aside. b)In order to address the aforesaid apprehension ofaccused persons in the State of Maharashtra of thepossibility of arrest upon remaining present before theSessions Court pursuant to direction under Section438(4) of the Cr.P.C.andrejection of their application for anticipatory bail thefollowing directions are issued:(i)The Prosecutor under Section 438(4) of theCr.P.C.shall statecogent reasons while seeking the obligatorypresence of the accused before the SessionsCourt at the time of final hearing of theapplication for anticipatory bail. on 21 08 2021 on 24 08 32 apl 393 2021 J.odt(ii)The Sessions Court shall consider such anapplication and pass a reasoned order as to whythe presence of the accused is necessary in theinterest of justice at the time of final hearing ofapplication for grant of anticipatory bail.(iii)If the Sessions Court rejects the application foranticipatory bail upon final hearing and theaccused is present before the Sessions Court inpursuance of directions given under Section438(4) of the Cr.P.C.the Court shall extend the interim protectionoperating in favour of the accused for aminimum period of three working days on thesame conditions on which interim protection wasgranted during pendency of the application foranticipatory bail or on such further conditions asthe Sessions Court may deem fit in the interestof justice.(iv)In cases where the Sessions Court deems itappropriate to grant extension of interimprotection for more than three working days itshall record reasons for the same and in anycase such extension of interim protection upon on 21 08 2021 on 24 08 33 apl 393 2021 J.odtexisting conditions or further stringentconditions shall not exceed a period of sevenworking days.(v)The accused shall abide by the conditions soimposed by the Sessions Court while grantingextension of interim protection failing whichsuch interim protection shall cease to operateinstantaneously. 32.Application stands disposed of in above terms. JUDGEMP Deshpande 