((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1540 OF 2009 Vimlesh Nathmal Patodia Applicant versus The State of Maharashtra Respondent A.M.Saraogi for applicant. Miss A.t.Javeri, APp for the State. CORAM : A.S.OKA, J. DATE : 22nd April 2009 PC : 1. Heard learned counsel for the applicant and learned APP for the State. The learned counsel for the applicant states that the applicant is personally present in the Court. This is an application for grant of anticipatory bail. The allegation against the applicant is of commission of offence under sections 51 and 63 of the Copy Rights Act, 1957 read with section 420 of the Indian Penal Code. An application was made by the applicant for anticipatory bail before the Sessions Court. By order dated 30th September 2009, the learned Sessions Judge rejected the said application. ((-2-)) 2. The learned APP has invited my attention to clause (5) of operative part of the order passed by the learned Sessions Judge in which he has recorded the statement of the learned APP that the applicant was present in the Court but when the learned Judge was dictating the order in open Court, the applicant disappeared. The learned APP invited my attention to paragraphs 10 and 11 of the affidavit-in- reply filed by the concerned Police Officer. Paragraph 10 and 11 read thus :- "10. I say that it is necessary to mention here that during the course of investigation the residence and shop premises of the applicant at Rajasthan was taken search twice but he was not available. I say that the present applicant is resident of Jaipur and his permanent address mentioned in the title of the Memo of the Application is also of Jaipur and if any relief is granted then he will not be available for the purpose of investigation and the investigation may come to a stand still without any progress. 11. I further submit that it is necessary to mention here the observation made by the Hon’ble Sessions Court while passing the impugned Order dated 30.3.2009. It is mentioned that the applicant was present in the Court during the course of hearing and while passing the order he disappeared from the Court. This shows that if any relief is granted he will not attend the concerned Investigating Authority and co-operated with the investigation." The learned counsel for the applicant invited ((-3-)) my attention to the rejoinder filed by the applicant. When a query was made to the learned counsel for the applicant as to whether a case has been made out either in this application or in the affidavit in rejoinder that what is recorded by the learned Sessions Judge regarding disappearance of the applicant is incorrect, the learned counsel for the applicant pointed out that no such assertion is made either in the application or in the affidavit in rejoinder. After arguing the application for some time the learned counsel for the applicant sought time to file his own affidavit. He submits that by filing his affidavit he wants to bring on record that the aforesaid observation that the applicant disappeared from the Court is incorrect. 3. The order dated 30th March 2009 is annexed to this application in which a statement of the learned APP has been noted by the learned Sessions Judge that though the applicant was present, he disappeared from the Court while the Court was dictating the order. This fact has been again asserted in paragraph 11 of the affidavit in reply filed by the concerned police officer. If the observation made by the ((-4-)) learned Sessions Judge and the assertion made by the concerned officer was not correct, obviously, the applicant would have said so at the outset either in the application or in the affidavit in rejoinder which was specifically filed for dealing with the assertions made in the reply filed by the concerned officer. Therefore, the applicant cannot be allowed to tender a further affidavit which is sought to be tendered obviously by way of an afterthought. It must be stated here that the allegation is that the applicant disappeared from the Court but the applicant is not seeking to file his own affidavit but an affidavit is sought to be filed by his advocate. 4. In the circumstances that the observation made by the learned Judge that the applicant was personally present when the dictation of the order was started and that he disappeared from the Court will have to be accepted as correct. It must be noted here that ad-interim protection was granted by the Sessions Court and only because of the said protection, the applicant was not taken in custody. Considering the mandate of amended section 438 of the said Code of 1973 and considering the ((-5-)) aforesaid conduct of the applicant, there is a justification for the apprehension expressed in the reply that the applicant may abscond and/or he may not be available for investigation. Only on this ground no case is made out for grant of anticipatory bail. The application is rejected. 5. At this stage learned counsel for the applicant submits that even this Court had granted protection to the applicant on 21st March 2009 and the said protection may be extended. The said prayer is opposed by the learned APP.. 6. Considering the fact that the applicant was granted protection both by the Sessions Court and by this Court, it is directed that the interim protection granted by the Sessions Court to the applicant will continue to operate for a period of three weeks from today on condition that the applicant will attend the concerned Police Station for investigation as and when called upon to do so. It is clarified that the interim protection granted by Sessions Court which was continued from time to time by this Court is extended for a period of three ((-6-)) weeks from today. (A.S.OKA, J.)