(1) CRI.APP. 2358.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2358 OF 2010 Shivraj S/o Kashinathappa Gandge, Age : 45 years, Occu.: President of Swami Vivekanand Education Society, Bhalki, Dist. Bidar, R/o Basweshwar Chowk, Nilanga Road, Bhalki, Dist. Bidar, Karnataka .. Applicant VERSUS The State of Maharashtra, (Through P.S. Chakur, Copy to be served on Public Prosecutor, High Court, Bench at Aurangabad) .. Respondent ... Mr. S.P. Katneshwarkar, Advocate for the Applicant Mrs. B.R. Khekale, APP for the respondent-State ... CORAM : V.R. KINGAONKAR, J. DATED : 1ST OCTOBER, 2010 ORAL ORDER:- 1. This Application is finally disposed of at the stage of admission inasmuch as the question involved in the Application is rather short and does not require elaborate consideration. 2. The applicant seeks quashing of order rendered by the learned Sessions Judge, on his (2) CRI.APP. 2358.2010 Application (Exh.8) filed in Criminal Misc. Application no. 48 of 2010. The applicant filed application before the Sessions Court under section 438 of the Code of Criminal Procedure. He apprehends arrest in connection with crime no. 8 of 2009 registered at Chakur Police Station. It is alleged by the complainant that the applicant issued an advertisement calling applications for post of Junior Lecturers for a private educational institution styled as "Swami Vivekanand Shikshan Sanstha". It is further alleged that amount of Rs. 1,00,000/- was obtained from the complainant and a bogus appointment letter for temporary appointment was issued to him. The complainant lateron came to know that there was no recognition to the Junior College. He, therefore, felt duped due to the act of the applicant. Hence, he lodged the FIR. 3. The applicant filed Application vide Criminal Misc. Application no. 48 of 2010 for his release on anticipatory bail. The learned APP, Latur, sought presence of the applicant at the time of final hearing of the application. The applicant (3) CRI.APP. 2358.2010 objected such application filed by the Prosecutor, Latur and sought rejection thereof. The learned Adhoc Additional Sessions Judge, however, allowed the application filed by the learned Public Prosecutor and directed the applicant to appear personally at the time of final hearing of the application and passing of the final order by the Sessions Court. 4. The question is whether the presence of the applicant ought to be secured at the time of preliminary hearing of the application filed under section 438 of the Code of Criminal Procedure? Perusal of section 438, as amended by the State of Maharashtra, indicates that where a interim order under sub-section 1 of section 438 is granted then, notice is required to be issued forthwith and thereafter, the Public Prosecutor may apply seeking presence of the applicant at the time of final hearing of the application and passing of the order by the Court. (4) CRI.APP. 2358.2010 5. What appears from the present fact situation is that the learned Sessions Judge did not pass any order under sub-section 1 of section 438 of the Cr.P.C. in favour of the applicant. Needless to say the applicant was un-protected and yet was called upon to attend the Court in person for the purpose of final hearing of the application. It is the duty of the Sessions Court to first ensure whether prima facie case is made out by the applicant so as to grant interim relief as contemplated under section 438(1) of the Cr.P.C. It is only then such interim protection is required to be granted that the application can be entertained and notice can be issued to the Public Prosecutor/APP. If no interim relief is granted, on basis of available material which prima facie reflects involvement of applicant in a cognizable offence, then application is required to be straightway dismissed in limine without issuing further notice to the Prosecutor/APP. Obviously, the learned Sessions Judge ought to have considered the material and the averments in the FIR in order (5) CRI.APP. 2358.2010 to examine whether the applicant was entitled to seek interim protection under section 438(1) or that the application was liable to be dismissed in limine. This exercise was not done by the learned Sessions Judge and as such the impugned order is un- sustainable in the eye of law. 6. Considering the foregoing reasons, the impugned order is quashed. The matter is remitted to the learned Sessions Judge, for reconsideration of the application in accordance with letters and spirit of section 438 of the Code of Criminal Procedure. It is made clear that he will find prima facie material to infer that the applicant is involved in cognizable offence then he may reject the application forthwith or if he finds that there is some prima facie case made out by the applicant regarding absence of proper reasons for his arrest and likelihood of his humiliation, the interim relief may be granted and thereafter issuance of notice to the Public Prosecutor may be directed. It is only after issuance of such notice that the Public Prosecutor may apply seeking personal (6) CRI.APP. 2358.2010 presence of the applicant as provided under section 438 of the Code of Criminal Procedure. Application disposed of. Sd/- [V.R. KINGAONKAR, J.] arp