Case Note & Summary
The applicant, Dr. Sameer Narayanrao Paltewar, a neuro surgeon, filed a criminal application before the Bombay High Court seeking directions regarding the interpretation and application of Section 438(4) of the Code of Criminal Procedure, 1973 (Cr.P.C.) as amended by the Maharashtra Amendment. The core issue was that when an accused is directed to remain present before the Sessions Court under Section 438(4) at the time of final hearing of an anticipatory bail application, and the application is rejected, the interim protection granted during the pendency of the application ceases to exist. This exposes the accused to immediate arrest by the investigating officer, thereby frustrating the remedy of anticipatory bail available under Section 438 Cr.P.C., as the accused is deprived of the opportunity to approach the High Court, which exercises concurrent jurisdiction in such matters. The applicant contended that appropriate directions are required to ensure that the remedy of pre-arrest bail is not rendered nugatory. The court considered the legal position and held that when the Sessions Court insists on the presence of the accused under Section 438(4) and rejects the application, it must extend the interim protection for a reasonable period to enable the accused to approach the High Court. The judgment aims to balance the requirement of the accused's presence with the right to seek anticipatory bail from the High Court.
Headnote
A) Criminal Procedure - Anticipatory Bail - Section 438(4) Cr.P.C. (Maharashtra Amendment) - Interim Protection - The issue pertains to the fate of an accused who is directed to remain present before the Sessions Court under Section 438(4) of the Cr.P.C. (Maharashtra Amendment) and whose anticipatory bail application is rejected. The court held that in such a scenario, the interim protection operating during the pendency of the application vanishes, exposing the accused to immediate arrest, thereby depriving him of the opportunity to move the High Court for anticipatory bail under concurrent jurisdiction. The court directed that when the Sessions Court insists on the presence of the accused under Section 438(4) and rejects the application, it must extend the interim protection for a reasonable period to enable the accused to approach the High Court. (Paras 2-4)
Issue of Consideration
Whether an accused directed to remain present before the Sessions Court under Section 438(4) of the Cr.P.C. (Maharashtra Amendment) is exposed to immediate arrest upon rejection of anticipatory bail application, and whether interim protection should be extended for a reasonable time to allow the accused to approach the High Court.
Final Decision
The court directed that when the Sessions Court insists on the presence of the accused under Section 438(4) of the Cr.P.C. (Maharashtra Amendment) and rejects the anticipatory bail application, it must extend the interim protection for a reasonable period to enable the accused to approach the High Court.
Law Points
- Section 438(4) Cr.P.C. (Maharashtra Amendment)
- anticipatory bail
- interim protection
- concurrent jurisdiction
- Sessions Court
- High Court
- arrest
- remedy
Case Details
2021 LawText (BOM) (08) 71
Criminal Application (APL) No. 393 of 2021
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
Dr. Sameer Narayanrao Paltewar
The State of Maharashtra, through Police Station Officer, Police Station, Sitabuldi, Nagpur
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Nature of Litigation
Criminal application seeking directions regarding the interpretation and application of Section 438(4) of the Cr.P.C. (Maharashtra Amendment) in the context of anticipatory bail.
Remedy Sought
The applicant sought directions from the High Court to ensure that when the Sessions Court insists on the presence of the accused under Section 438(4) and rejects the anticipatory bail application, interim protection is extended for a reasonable time to allow the accused to approach the High Court.
Filing Reason
The applicant contended that upon rejection of an anticipatory bail application by the Sessions Court, the interim protection ceases, exposing the accused to immediate arrest, thereby frustrating the remedy of anticipatory bail under Section 438 Cr.P.C.
Issues
Whether an accused directed to remain present before the Sessions Court under Section 438(4) Cr.P.C. (Maharashtra Amendment) is exposed to immediate arrest upon rejection of anticipatory bail application?
Whether interim protection should be extended for a reasonable time to allow the accused to approach the High Court under concurrent jurisdiction?
Submissions/Arguments
The applicant submitted that when the presence of the accused is insisted upon under Section 438(4) 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 respondent (State) argued through the APP, but specific arguments are not detailed in the provided text.
Ratio Decidendi
The ratio decidendi is that to prevent frustration of the remedy of anticipatory bail under Section 438 Cr.P.C., when the Sessions Court requires the accused's presence under Section 438(4) and rejects the application, the interim protection must be extended for a reasonable time to allow the accused to approach the High Court under its concurrent jurisdiction.
Judgment Excerpts
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?
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.
Procedural History
The applicant filed Criminal Application (APL) No. 393 of 2021 before the Bombay High Court, Nagpur Bench, seeking directions regarding Section 438(4) Cr.P.C. (Maharashtra Amendment). The application was heard and reserved on July 27, 2021, and judgment was pronounced on August 21, 2021.
Acts & Sections
- Code of Criminal Procedure, 1973 (Cr.P.C.): 438, 438(4)
