Bombay High Court
Dr. Sameer Narayanrao Paltewar vs The State Of Maharashtra, Thr. ... on 21 August, 2021
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
Criminal Application (APL) No. 393 of 2021
APPLICANT: 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,
Nagpur
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
CORAM : MANISH PITALE, J.
RESERVED ON : JULY 27, 2021
PRONOUNCED ON: AUGUST 21, 2021
JUDGMENT
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
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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 pre-
arrest 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
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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
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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
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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 Sub-
section (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
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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
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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
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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
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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 203 rd Report of the Law
Commission could not be disputed and this Court may pass
appropriate directions in the context of the apprehension
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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.
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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
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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
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:-
(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
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(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
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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
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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
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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 sub-
section (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 sub-
sections (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:
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"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."
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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
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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 apl 393-2021-J.odt
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
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unfounded is supported by the contents of the 203 rd 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
23 apl 393-2021-J.odt
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 sub-
section 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 apl 393-2021-J.odt
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
25 apl 393-2021-J.odt
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.
26 apl 393-2021-J.odt
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
27 apl 393-2021-J.odt
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
28 apl 393-2021-J.odt
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.
29 apl 393-2021-J.odt
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
30 apl 393-2021-J.odt
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
31 apl 393-2021-J.odt
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.
32 apl 393-2021-J.odt
(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
33 apl 393-2021-J.odt
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
MP Deshpande
