Partly allowed

Sanjay Mishrimal Punamiya v. the State of Maharashtra

Bombay HC22 Oct 2021ABA/2512/2021

Case brief

AI extract

What is this about?

Full Bench of Bombay High Court held that trial court erred in rejecting ad-interim relief and issuing notice to police under Section 438 Cr.P.C. High Court directed trial court to dispose within four weeks, stayed coercive action, and continued interim protection for one week if adverse order passed.

What did the court decide?

Trial court directed to dispose application within 4 weeks; no coercive action stayed; interim protection continued for 1 week if adverse order passed.

Sanjay Mishrimal Punamiya Vs the State of Maharashtra — Anticipatory Bail | Bombay HC (2021)

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11-ABA-2512-2021.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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ANTICIPATORY BAIL APPLICATION NO.2512 OF 2021

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SANJAY MISHRIMAL PUNAMIYA

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)...APPLICANT

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V/s.

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THE STATE OF MAHARASHTRA

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)...RESPONDENT

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Mr.Niteen Pradhan a/w. Mr.Dilip Shukla, Advocate for the
Applicant.

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Smt.Anamika Malhotra, APP for the Respondent – State.

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CORAM: V. G. BISHT, J.
DATE: 22nd OCTOBER 2021

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P.C.:

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1The present application has been moved by the

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applicant under Section 438 of the Code of Criminal Procedure
apprehending arrest under Section 420, 465, 468, 471 of Indian

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Penal Code (IPC) and Section 82 of the Indian Registration Act
registered vide Crime No.1137 of 2021 with Police Station
Sinnar.

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AVK 1/9

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11-ABA-2512-2021.doc

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2I have gone through the contents of the First
Information Report (FIR) in question. It may not be out of place
to note that FIR No.I-184/2016 on 26th September 2016 with
Police Station Sinnar for the same set of allegations was filed by
Shamsunder Radhesham Agarwal. However, after investigation,
the said Police Station filed “B” Summary Report on 17th
November 2016. It does appear from the record that the present
applicant then approached this Court for quashing of said FIR I-
184/2016 on the ground of settlement of dispute between the
parties and this Court was pleased to quash the said FIR on 19th
July 2017 (Exh. G).

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3 According to the applicant, despite quashing of earlier FIR an offence vide Crime No.176/2021 came to be registered with Kopari Police Station. The applicant then approached the learned Additional District Judge-4, Thane, and the learned Additional District Judge-4, Thane, was pleased to allow the anticipatory bail application on 29^th September 2021. The said order is at Exh. H. AVK 2/9

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4It seems that the matter did not stop there and
despite being the above situation, another FIR No.299/2021 by
Police Station Marine Drive and another Crime bearing
No.1137/2021 with Police Station Sinnar, which is subject matter
of present proceedings came to be launched and registered.

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5 Heard Mr.Niteen Pradhan, learned counsel for the applicant and Smt.Anamika Malhotra, learned APP for the Respondent-State. The learned counsel submits that the learned trial Court wrongly rejected the prayer of ad-interim relief sought by the applicant and posted the matter for hearing ignoring the provisions of Section 438 of the Code of Criminal Procedure. The impugned order is unlawful, illegal and suffers from nonapplication of mind and therefore needs to be set aside. According to the learned counsel now the matter is posted for hearing on 27^th October 2021 and having regard to the nature of accusations, in the meantime not only the learned trial Court be directed to decide the application expeditiously but at the same time liberty of applicant be protected till the decision of the AVK 3/9

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anticipatory bail application pending before the learned trial
Court.

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6The learned APP, on her part, fairly concedes that
while passing the impugned order the learned trial Court ought
to have kept in mind the object and spirit of Section 438 of the
Cr.P.C. According to the learned APP appropriate order in the
circumstances may be passed.

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7 I have also gone through the order passed below Exh. 4 in Criminal Bail Application No.1428 of 2021 moved by the applicant herein before the learned trial Court seeking ad-interim relief in C.R.No.1137 of 2021. Needless to note that the adinterim relief was rejected vide order dated 13^th October 2021 (Exh. A-2) while issuing show cause notice to the Senior Police Inspector, Sinnar Police Station and the Superintendent of the Police, Nashik calling upon them to show cause as to why prearrest bail should not be granted in favour of the applicant. Thus, in a sense, the learned trial Court kept the application very AVK 4/9

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much pending with show cause notice returnable on 21st October
2021.

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8I need not emphasize that the law relating to grant of
anticipatory bail is very much clear in view of the Maharashtra
Amendment of Section 438 Cr.P.C. Relevant portion of the
provision for our purposes is quoted hereunder :

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“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 that Court may, after taking into
consideration, inter alia, the following factors:-

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(i) the nature and gravity or seriousness of the
accusation as apprehended by the applicant;

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AVK 5/9

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(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;

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(iii) the likely object of the accusation to humiliate
or malign the reputation of the applicant by having
him so arrested; and

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(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:

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Provided that, where the High Court, or as the
case may be, the Court of Sessions, 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.”

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AVK 6/9

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11-ABA-2512-2021.doc

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9It is quite clear that the Maharashtra Amendment
very specifically states that the Court of Sessions may either
reject the application forthwith or issue an interim order for
grant of anticipatory bail. This is further supplemented by the
proviso appended to sub-section (1) of Section 438 which makes
it abundantly clear that it is only in the event of this Court or the
Court of Sessions not passing an interim order under this sub-
section or rejecting the application for grant of anticipatory bail
that it is open to the Investigating Officer to arrest without
warrant the applicant on the basis of accusation apprehended in
the application.

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10 Incidentally, I may point out that this Court had an occasion to consider the issues as to whether by keeping pending the anticipatory bail application, ad-interim relief can be rejected on merits in various matters including the matter of Maharashtra vs. Kachrusingh Rajput (1994) 3 BCR 348 and Criminal Application No.7473 of 2005 Vikram Janakraj Ahuja vs. State as well as in the matter of Shrenik Jayantibhai Jain and another vs. AVK 7/9

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State of Maharashtra (Anticipatory Bail Application No.541 of
2014).

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11In the light of law laid down in the aforesaid cases
and considering the object and spirit of Section 438 Cr.P.C. to
protect liberty of an individual pending consideration of the
anticipatory bail application on merits, the learned Additional
Sessions Judge Nashik should have either passed interim order
granting protection or rejected the application itself rather than
rejecting the ad-interim relief and ventured to issue notice to the
concerned Police Officer.

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12In the circumstances, I deem it just and proper to
direct the learned Additional Sessions Judge, Nashik to hear and
finally dispose of the anticipatory bail application for grant of
anticipatory bail within a period of four weeks from the date of
receipt of this order.

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AVK 8/9

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13In the meanwhile, no coercive action shall be taken

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against the applicant pending decision of the anticipatory bail by
the learned Additional Sessions Judge, Nashik.

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14It is further made clear that if any adverse order is
passed against the applicant then the interim protection so
granted by this Court shall be continued for a further period of
one week thereafter i.e. from the date of passing of the adverse

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order so as to enable the applicant to approach the higher Court.

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15The application accordingly stands disposed of.

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 (V. G. BISHT, J.)

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ARTI VILAS KHATATE

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Digitally signed byARTI VILAS KHATATE Date: 2021.10.22 13:06:20 +0530

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AVK 9/9

Sanjay Mishrimal Punamiya v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Sanjay Mishrimal Punamiya v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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