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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

ANTICIPATORY BAIL APPLICATION NO. 1353 OF 2022

Suresh Namdev Nikam

..

Applicant

Versus

The State of Maharashtra

..

Respondent

…

Mr. Rahul Daigude for the Applicant.

Mr. S.V. Gavand, APP for the Respondent/State.

CORAM : BHARATI DANGRE, J.

DATED : 24^th MAY, 2022

(VACATION COURT)

P.C:-

1.

Heard the learned counsel for the Applicant and the

learned APP.

The Applicant has moved an anticipatory bail application

under Section 438 seeking protection from arrest in case of CR

No. 139 of 2020, which has been investigated and resulted into

registration of RCC No. 279 of 2020. The chargesheet is filed on

15.09.2020.

The Applicant is accused of offence punishable under

Section 498-A, 304-B, 306 read with Section 34 of IPC.

Pertinent to note that his anticipatory bail application was

rejected by the Additional Sessions Judge, Satara on 09.07.2020.

Sneha Chavan

SNEHA

NITIN

CHAVAN

Digitally signed

by SNEHA NITIN

CHAVAN

Date: 2022.05.25

12:27:06 +0530

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Subsequent to filing of the chargesheet, he moved another

application seeking protection from arrest, which was not pressed

on 16.02.2022. On the third occasion, he moved on application

before the Sessions Court on 29.04.2022 permitting him to

surrender before the Court in the wake of filing of the chargesheet

in the subject FIR. On this application, the learned Judge passed

the following order “Allowed to argue on bail application”.

The learned counsel for the Applicant submit that the

learned Judge expressed his opinion that it is not permissible for

him to take him in custody, even when the Applicant has offered

to surrender and this is the reason which prompted his counsel to

not press this application filed under Section 439 of Cr.P.C., for

being released on regular bail in the wake of filing of chargesheet.

Worth to note that this reasoning of the learned Judge is not

to be found in black and white since the learned counsel offered

to withdraw the application and therefore, only the word of

learned counsel is to be accepted.

In any case, if the learned Judge was under a notion that he

cannot permit surrender, it is a wrong assumption of his powers as

it is always permissible for him to permit surrender and on

surrender, the accused person would be considered to be in his

custody and when an application is moved for his release on bail,

the learned Judge ought to have considered the said application.

Since this course was not adopted, in any case do not permissible

Sneha Chavan

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to the Applicant to approach this Court and again seek his release

on bail in anticipation of his arrest, merely on the ground that

during the period of investigation and at the time of filing of the

chargesheet, he was never taken into custody.

2.

In the aforesaid circumstances, it is open to the Applicant to

approach to the learned Sessions Judge with a application to

surrender and the learned Judge is directed to permit him to

surrender and decide his application, if moved for his release on

bail filed under Section 439 of Cr.P.C., on merits.

3.

With the aforesaid, criminal application is disposed of.

( SMT. BHARATI DANGRE, J.)

Sneha Chavan