Bombay HC grants 3-day relief from arrest to Neurosurgeon after rejection of anticipatory bail

Nagpur: The Bombay High Court has held that sessions court rejecting the anticipatory bail application of an applicant should grant him interim protection of at least three days if the court had directed the applicant to remain present under section 438 (4) of the CrPc (Maharashtra amendment).

The copy of the order passed recently, was made available on August 21.

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Justice Manish Pitale of the Nagpur bench of the HC was hearing a plea of Nagpur-based Neurosurgeon seeking directions to discard the possibility of the arrest of an accused when he remains present at the time of final hearing of his anticipatory bail application, abiding by the sessions court's order.

The applicant doctor was booked under various sections of the Indian Penal Code and the Information Technology Act for fraud and cheating.

The HC said the prosecutor under section 438(4) of the CrPc (Maharashtra amendment) shall state cogent reasons while seeking the obligatory presence of an accused before the sessions court at the time of the final hearing of the application for anticipatory bail.

The HC said 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 the application for grant of pre-arrest bail.

The high court held that an individual should not be arrested right after his anticipatory bail application is rejected if the sessions court had directed him to remain present under section 438 (4) of the CrPC (Maharashtra Amendment), and he should be granted interim protection for three days.

The doctor had approached the Nagpur bench after the sessions court hearing his pre-arrest bail application had ordered him to remain present at the time of the final hearing.

Counsel for the applicant advocate Avinash Gupta submitted that the power to grant anticipatory bail under section 438 of CrPc is exercised concurrently by the sessions court and the HC.

He said sub-section (4) to section 438 of CrPc as applicable to the State of Maharashtra creates a situation that when the court directs the 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 remaining present in the court, thereby frustrating the very right available under the said provision,' he said.

The counsel further submitted 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 the final hearing of the application for grant of anticipatory bail while interim protection is operating.

'In the eventuality that the application is rejected upon a final hearing unless protection is extended further for a reasonable period of time to approach the HC or 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 opportunity to move the High Court,' he said.

Sahil Dewani, the counsel appearing for the intervenor, submitted that the present application was rendered infructuous in view of the fact that the HC 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 a further period of 72 hours to enable the applicant to approach the HC.

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