Sunday, 25 December 2016

Whether it is mandatory to obtain bail from accused even if he is acquitted?

While   hearing   the   application
seeking leave to appeal filed by the State or
the victim as the case may be challenging the
order of acquittal passed by the trial Court,
we   have   noticed   in   many   cases   that   the
mandate of provision of Section 437­A of Code
of   Criminal   Procedure   is   not   scrupulously
followed   and   it   creates   difficulties   and
hindrances   to   secure   presence   of

accused/respondent in appeal preferred before
the higher Court. On careful reading of the
said   provision,  it   is   abundantly   clear   that
before   conclusion   of   the   trial   and   before
disposal of the appeal, the Court trying the
offence or the Appellate Court, as the case
may be, shall require the accused to execute
bail   bonds   with   sureties,   to   appear   before
the   higher   court   as   and   when   such   Court
issues   notice   in   respect   of   any   appeal   or
petition   filed   against   the   judgment   of   the
respective Court and such bail bonds shall be
in force for six months.   
 In   that   view   of   the   matter,   it   is
necessary   to   bring   to   the   notice   of   the
learned Judges of the Trial Courts as well as
appellate   Courts,   dealing   with   the   criminal
matters  that   they   should   follow  the  mandate
of   Section   437­A   of   Code   of   Criminal
Procedure   scrupulously   before   conclusion   of
the trial or before disposal of the appeal.               
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 462 OF 2015 
 State of Maharashtra V­  Pappu alias Asraji 
S/o Suresh Chavan 

CORAM : S.S. SHINDE & K.K. SONAWANE, JJ.
Dated: December 02, 2016



Re­issue   notice   to   respondent   no.3
in   Criminal   Appeal   no.   832   of   2015,
returnable on 4th January, 2017. 
2. The learned A.P.P. appearing for the
appellant/State in Criminal Appeal No. 462 of
2015 assures this Court that he will furnish
the   correct   and   complete   address   of
respondent no.3 before next date of hearing. 
3. In   these   appeals,   the   appellants
have   taken   exception   to   the   judgment   and
order dated 05.12.2014 passed by the Special
Judge, MCOC Act, Aurangabad, in Special Case
No.8/2009. 
4. The   learned   trial   Judge   while

passing   the   impugned   judgment   and   order   of
acquittal, has not adhered to the provisions
of   Section     437­A   of   the   Code   of   Criminal
Procedure,   1973.   The   said   Section   reads   as
under :­ 
“437­A.  Bail   to   require   accused   to
appear before next Appellate Court.­ 
(1) Before conclusion of the trial and
before   disposal   of   the   appeal,   the
Court   trying   the   offence   or   the
Appellate   Court,   as   the   case   may   be,
shall   require   the   accused   to   execute
bail   bonds   with   sureties,   to   appear
before   the   higher   court   as   and   when
such Court issues notice in respect of
any   appeal   or   petition   filed   against
the   judgment   of   the   respective   Court
and such bail bonds shall be in force
for six months. 
(2) If   such   accused   fails  to   appear,
the   bond   stand   forfeited   and   the
procedure   under   Section   446   shall
apply.” 
5. While   hearing   the   application
seeking leave to appeal filed by the State or
the victim as the case may be challenging the
order of acquittal passed by the trial Court,
we   have   noticed   in   many   cases   that   the
mandate of provision of Section 437­A of Code
of   Criminal   Procedure   is   not   scrupulously
followed   and   it   creates   difficulties   and
hindrances   to   secure   presence   of

accused/respondent in appeal preferred before
the higher Court. On careful reading of the
said   provision,  it   is   abundantly   clear   that
before   conclusion   of   the   trial   and   before
disposal of the appeal, the Court trying the
offence or the Appellate Court, as the case
may be, shall require the accused to execute
bail   bonds   with   sureties,   to   appear   before
the   higher   court   as   and   when   such   Court
issues   notice   in   respect   of   any   appeal   or
petition   filed   against   the   judgment   of   the
respective Court and such bail bonds shall be
in force for six months. 
6. In   that   view   of   the   matter,   it   is
necessary   to   bring   to   the   notice   of   the
learned Judges of the Trial Courts as well as
appellate   Courts,   dealing   with   the   criminal
matters  that   they   should   follow  the  mandate
of   Section   437­A   of   Code   of   Criminal
Procedure   scrupulously   before   conclusion   of
the trial or before disposal of the appeal. 
7. The copy of this order passed today
be circulated to all the Judges of the trial
Courts   and   appellate   Courts   dealing   with
criminal matters in Sessions Courts, so as to
appraise them about the provisions of Section

437­A of the Code of Criminal Procedure and
ultimately   to   follow   the   mandate   of   said
section   in   future.   It   would   facilitate   for
expeditious hearing of matters before higher
Court after securing presence of accused. 
8. The Registrar (Judicial), High Court
of Judicature of Bombay, Bench at Aurangabad
shall ensure that the copy of this order is
circulated   by   e­mail   or   any   other   fastest
mode of communication to all the District and
Sessions Courts and also trial Courts dealing
with   the   criminal   matters   throughout   the
State of Maharashtra and ask the Registry to
place on record the report of compliance of
today's order. 
9. Hearing of these appeals is deferred
by four weeks. 
10. Stand over to 4th January, 2017.  
Sd/­ Sd/­ 
(K.K. SONAWANE, J.)  (S.S. SHINDE, J.)

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