ROY ROSARIO FERNANDES Vs. STATE OF GOA, THROUGH PUBLIC PROSECUTOR, HIGH COURT, PANAJI, GOA
LAWS(BOM)-2017-9-198
HIGH COURT OF BOMBAY
Decided on September 26,2017

Roy Rosario Fernandes Appellant
VERSUS
State Of Goa, Through Public Prosecutor, High Court, Panaji, Goa Respondents

JUDGEMENT

C.V. Bhadang, J. - (1.) Rule made returnable forthwith. The learned Public Prosecutor waives service on behalf of the respondents. Heard finally by consent of parties.
(2.) The petitioner is challenging the order dated 22.09.2017, passed by the learned Sessions Judge, Panaji, directing the petitioner to remain present at the time of hearing of the application for Anticipatory Bail filed by the petitioner. This is on the basis of an application (Exhibit-12) filed by the State under Section 438 (1B) of the Code of Criminal Procedure, 1973 (Code, for short), praying that the petitioner/applicant be directed to remain present at the time of the passing of the order on the application for anticipatory bail.
(3.) The only contention raised on behalf of the petitioner is that the application under Section 438 (1B) of the Code was not maintainable, in as much as the said provision, which was introduced by Amendment Act 25 of 2005, has not been brought into force. The learned Counsel for the petitioners has pointed out that Section 438 (1B) of the Code was introduced by Section 38 of the Amendment Act 25 of 2005. The learned Counsel has referred to the Notification dated 23.06.2006, by which all the provisions of the Amendment Act, except the provisions of Sections 16, 25, 28(a), 28(b), 38, 42(a), 42(b), 42(f) (iii) and (iv) and 44(a), have been brought in force. In other words, it is contended that Section 38 of the amending Act has not yet been brought in force. The learned Counsel has also referred to the decision of the Supreme Court in the case of Sundeep Kumar Bafna Vs. State of Maharashtra & Another, 2014 16 SCC 623, in which, in para 22, the Hon'ble Supreme Court has noticed that the said provision has not been brought into force.;


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