Nagpur: The Nagpur Bench of Bombay High Court has granted interim protection of 72 hours to Director of Meditrina Institute of Medical Sciences Dr Sameer Paltewar, in case his pending anticipatory bail is rejected by Sessions Court. At the same time, the High Court has indicated that it would decide the seminal issue of power of Court to seek personal presence of accused during final hearing of anticipatory bail application and right of accused to have access to justice.
Under Section 438 (4) of Code of Criminal Procedure, the Court may seek presence of the applicant seeking anticipatory bail at the time of final hearing of the application and passing of final order on an application made to it by the Public Prosecutor, and if the Court considers such presence necessary in the interest of justice.
In the instant case, on the basis of a complaint lodged by Ganesh Chakkarwar, Sitabuldi Police registered a case against applicant Dr Paltewar offences punishable under Sections 406, 409,420,465,467,268,471 of IPC and Section 66-C of the Information Technology Act, 2000.
The Sessions Court granted ad-interim protection to the applicant on February 22 and asked him to co-operate with the investigating authority. According to applicant, he fully co-operated with the Investigating Officer (IO) and when the matter was slated for hearing, time was sought by the complainant on the plea that his lawyer was out of station and simultaneously, he moved an application seeking presence of Dr Paltewar during final hearing.
The Investigating Officer also moved an application seeking his presence at the time of final hearing. Applicant’s counsel opposed this request and on March 5, the Court allowed the application. Senior Counsel Avinash Gupta, appearing for the applicant, contended that IO had no authority to move such an application and the Sessions Court also did not record any reasons for allowing the application seeking personal presence of Dr Paltewar. Issuance of such presence at the mere askance defeats the very object of section 438, he claimed.
If the pre-arrest protection application is rejected and the accused is arrested while in Court or soon thereafter, the right of the accused to approach the High Court shall stand defeated, he claimed, while urging the HC to interpret the provision as would sub-serve and advance the legislative intent. Only in rare cases of hardened criminals such a direction can be issued but certainly not where the applicant is a renowned neurosurgeon, he argued. Power to issue such direction must be understood and interpreted on the anvil and touchstone of the cherished principle that the accused must have access to justice and his right to invoke the concurrent jurisdiction under Section 438 of the Code must not be rendered in effective, the High Court noted while posting the hearing on March 18.