*1* IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3684/2009 Ramrao Tukaram Patil. ..Applicant -VERSUS- The State of Maharashtra. ..Respondent Mr.A.P. Mundargi, Senior Counsel i/b Mr.S.S.Deshmukh, Advocate for the Applicant. Mr.H.J.Dedhia, A.P.P., for the Respondent/State. ............... CORAM: A.P.DESHPANDE, J. Dated 12th August, 2009. PC:- 1 By consent of the learned counsel for the Applicant and the learned APP, the application is taken up for hearing and final disposal. 2 This is an application filed under Section 438 of the Code of Criminal Procedure by the Applicant claiming anticipatory bail in the event of his arrest in Crime No.218/2009 for the offences punishable under Sections 420, 465, 467, 468, 451A r/w 34 and 120-B of the Indian Penal Code and under Section 3(1)(ix) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act registered at Bhadrakali Police Station, Nashik. 3 The Applicant had moved the similar application before the Sessions Court, however, the said application has been rejected without considering the same on merits and solely for the reason that despite an order passed by the Sessions Court the Applicant had failed to remain present at the time of hearing of the application. 4 Perusal of the order passed by the Sessions Judge reveals that *2* after granting interim protection, the Sessions Court had fixed the bail application for hearing on 10.08.2009. The learned counsel for the Applicant who was appearing before the Sessions Court had made a statement that the Applicant would remain present at the time of hearing of the application. However, as the Applicant remained absent, the application came to be rejected on that ground alone. 5 The learned counsel for the Applicant has submitted that the Applicant’s statement u/s 164 of Cr.P.C. was scheduled to be recorded on 10.08.2009 in Mumbai by the Metropolitan Magistrate Court No.28 in a case registered by the C.B.I. against one Sarabjeet Singh under Section 9 of the Prevention of Corruption Act. It is also submitted that a reference to a letter from the S.P., C.B.I. which finds place in paragraph No.2 of the order passed by the Sessions Court dated 10.08.2009 is the one which shows that the Applicant’s statement was to be recorded in Mumbai on 10.08.2009. In short the submission is that for the reason beyond the control of Applicant he could not remain present before the Sessions Court at the time of hearing of the application under Section 438 of the Code of Criminal Procedure though it was so assured by the Applicant earlier. 6 As the Sessions Court has not considered the application filed by the Applicant on its own merit, ends of justice would be met by permitting the Applicant to move a fresh application under Section 438 of the Code of Criminal Procedure before the Sessions Court and by directing the Sessions Court to decide the same on its own merit. *3* 7 The learned counsel appearing for the Applicant, on behalf of the Applicant, undertakes that the Applicant shall remain present at the time of hearing of the application before the Sessions Court. It is stated that without fail the Applicant would be filing the application on 14th August, 2009 and the same could be heard on 17th August, 2009. 8 The learned APP on instructions from the Investigating Officer has no objection to fix the hearing of the application on 17th August, 2009 before the Sessions Court. 9 In the result, I pass the following order:- (i) The Applicant is permitted to file a fresh application for anticipatory bail before the Sessions Court, Nashik on or before 14th August, 2009. (ii) The Sessions Court shall fix the application for hearing on 17th August, 2009. (iii) The Applicant shall remain present before the Sessions Judge at the time of hearing of the application on 17th August, 2009. In the event if the Applicant fails to remain present on 17th August, 2009, it shall be open for the Sessions Judge to dismiss the application on that ground alone. (iv) Till 17th August, 2009 i.e. till hearing of the application proposed to be filed by the Applicant on 14th August, 2009, the Respondent shall not take any coercive action against the Applicant. (v) Application is disposed of accordingly. (vi) The parties to act on an authenticated copy of this order. (A.P. Deshpande, J)