Section 438(4) CrPC- Grant Accused Three Days Interim Protection From Arrest After Rejection of Anticipatory Bail: Bombay High Court

In a significant ruling, the Nagpur Bench of Bombay High Court has held that a Sessions Court rejecting the anticipatory bail application should grant interim protection for at least three working days to avoid his immediate arrest if the court had directed the accused to remain present, under Section 438(4) of the CrPC (Maharashtra Amendment). Not extending interim protection which operated during the pendency of the Anticipatory Bail Application in favour of the accused, would frustrate his right to approach High Court, and the Sessions Court's order directing him to remain present at the time of the final hearing would have facilitated his arrest, observed the High Court. "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," Justice Manish Pitale observed. The bench then issued the following directions : The prosecutor under Section 438(4) of the Cr.P.C. (Maharashtra Amendment) shall state cogent reasons while seeking the accused's presence at the time of final hearing of the application for anticipatory bail.The Sessions Court shall consider such an application and pass a reasoned order as to why the presence of the accused is necessary, at the time of final hearing of the application for grant of anticipatory bail.If the Sessions Court rejects the application for anticipatory bail and the accused is present pursuant to the court's directions the Court shall extend the interim protection operating in favour of the accused for a minimum period of three working days, on the same conditions on which interim protection was granted during the pendency of the application for anticipatory bail or on such further conditions as the Sessions Court may deem fit, in the interest of justice.In cases where the Sessions Court deems it appropriate to grant an extension of interim protection for more than three working days, it shall record reasons for the same and in any case, such extension of interim protection on existing conditions or further stringent conditions, shall not exceed a period of seven working days. Background of The Case 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 his 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 had ordered him to remain present at the time of the 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. Vs. State of Maharashtra 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. Case Title: Dr Sameer Narayanrao Paltewar v. State of Maharashtra Appearances Petitioner – Senior Advocate Avinash Gupta and Advocate Akash Gupta Respondent State - S.A. Ashirgade, APP Intervenor – Advocate Shyam Dewani, Advocate and Advocate Sahil Dewani for the intervenor Click Here To Read/ Download Order

Section 438(4) CrPC- Grant Accused Three Days Interim Protection From Arrest After Rejection of Anticipatory Bail: Bombay High Court

Sharmeen Hakim

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