Whether court can release convict on bail during the pendency of a criminal appeal as per S 436-A of CRPC?

In my view, Section 436-A, Cr.P.C. is restricted in

its operation to grant of bail to an under-trial prisoner

‘during the period of investigation, inquiry or trial’ and does

not, ex proprio vigore, apply at the appellate stage. I, thus,

concur with the prima facie view of Their Lordships of the

Hon’ble Division Bench expressed in the order dated

August 14, 2020 as well as the opinion of learned brothers

Deshpande and Shukre, JJ. I also agree with Their Lordships

that the reference ought to be disposed of by answering

the question referred in the negative.

7. Having so answered, I hasten to observe that in a

given situation the spirit of Section 436-A, Cr.P.C. could be

considered by an appellate court while it is seized of an

application under Section 389, Cr.P.C. and, drawing

inspiration from the principle ingrained in the former, to

suspend execution of the sentence bearing in mind all

relevant factors including the time likely to be taken for

disposal of the appeal. The judicial mind in the wise

exercise of discretion and by suitable moderation may

suspend execution of the sentence and grant bail under

Section 389, Cr.P.C., the absence of a provision like Section

436-A, Cr.P.C. in the chapter on appeals notwithstanding. If

any authority is required, one may usefully refer to the

decisions in Kashmira Singh vs. State of Punjab,

reported in (1977) 4 SCC 291, Babu Singh vs. State of

U.P., reported in (1978) 1 SCC 579, Bhagwan Rama

Shinde Gosai vs. State of Gujarat, reported in (1999) 4

SCC 421, Akhtari Bi vs. State of Madhya Pradesh,

reported in (2001) 4 SCC 355, and Suresh Kumar vs.

State [NCT, Delhi], reported in (2001) 10 SCC 338, which

are all decisions prior to the birth of Section 436-A in the

Cr.P.C. delineating factors that a Court ought to take into

account while considering a prayer for bail at the appellate

stage.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL APPLICATIONN (APPA) NO. 270/2020

IN

CRIMINAL APPEAL NO. 336/2016

Maksud Sheikh Gaffur Sheikh  Vs  State of Maharashtra,

CORAM : DIPANKAR DATTA, C.J.

R. K. DESHPANDE &

SUNIL B. SHUKRE, JJ.

DATED : 28.08.2020

JUDGMENT (Per : Sunil B. Shukre, J)

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Whether accused can take defence of legal insanity when final report is filed by police?

 The ingredients of Section 84 of the Indian

Penal Code can only be taken as a defence during

trial. It is not possible to throw out the Final Report in

a case on the ground that the concerned accused was

suffering from legal insanity. The legal insanity has to

be proved by the concerned accused, who is harping

upon such a defence. The standard of proof required

is only by proof through preponderance of probabilities

and not proof beyond doubt. Matters being so, the

present stage is too premature to consider those

aspects.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT:

           MR. JUSTICE B.KEMAL PASHA

    28TH DAY OF JULY 2016
                 Crl.MC.No. 4789 of 2016 ()
             

           R. ASHOK KUMAR, 
V

          STATE OF KERALA,
          
      Citation:2016 CRLJ4765

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What is difference between trial of election petition and trial of civil suit?

 In Kailash v. Nanhku & Ors., AIR 2005 SC 2441, this Court held that the trial of an election petition is entirely different from the trial of a civil suit, as in a civil suit trial commences on framing the issues while trial of an election petition encompasses all proceedings commencing from the filing of the election petition up to the date of decision. Therefore, the procedure provided for the trial of civil suits under CPC is not applicable in its entirety to the trial of the election petition. For the purpose of the election petition, the word `trial' includes the entire proceedings commencing from the time of filing the election petition till the pronouncement of the judgment. The applicability of the procedure in Election Tribunal is circumscribed  by two riders : firstly, the procedure prescribed in CPC is applicable only "as nearly as may be", and secondly, the CPC would give way to any provisions of the Act or any rules made thereunder. Therefore, the procedure prescribed in CPC applies to election trial with flexibility and only as guidelines.
Reportable

Supreme Court of India

Kalyan Singh Chouhan vs C.P.Joshi on 24 January, 2011

Bench: P. Sathasivam, B.S. Chauhan

Citation:(2011)11SCC 786

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Leading Judgment on appreciation of evidence of CCTV Footage

The CCTV footage, which was directly and immediately stored in the hard drive of the computer is the original media, that was self generated and created without any human intervention. This CCTV footage is not secondary evidence and does not require certification under Section 65B of the Evidence Act. This issue is no longer res integra and is settled in the decision of the Supreme Court in Anwar P.V. (S) versus P.K. Basir, (2014) 10 SCC 473, which hold:-

"24. The situation would have been different had the appellant adduced primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could have played the same in court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made there from which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65-B of the Evidence Act are not satisfied. It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence of electronic record with reference to Sections 59, 65-A and 65-Bof the Evidence Act, if an electronic record as such is used as primary evidence underSection 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65-B of the Evidence Act."

The aforesaid paragraph elucidates difference between primary and secondary evidence. When primary or direct evidence in form of original data be it a CD, hard drive or any other electronic record is produced, the same is admissible and taken on record. This takes care of the contention of the appellant that the CCTV footage should be discarded and not read in evidence in the absence of a certificate under Section 65B of the Evidence Act.

14. The CCTV footage is captured by the cameras and can be stored in the computer where files are created with serial numbers, date, time and identification marks. These identification marks/ details are self generated and recorded, as a result of pre-existing software commands. The capture of visual images on the hard disc is automatic in the sense that the video images get stored and recorded suo-moto when the CCTV camera is on and is properly connected with the hard disc installed in the computer. It is apparent in the present case from the evidence led that no one was watching the CCTV footage when it was being stored and recorded. The recording was as a result of commands or instructions, which had already been given and programmed. The original hard disc, therefore, could be the primary and the direct evidence. Such primary or direct evidence would enjoy a unique position for anyone who watches the said evidence would be directly viewing the primary evidence. Section 60 of the Evidence Act states that oral evidence must be direct, i.e., with reference to the fact which can be seen, it must be the evidence of the witness, who had seen it, with reference to the fact, which could be heard, it must be evidence of the witness, who had heard it and if it relates to the fact, which could be perceived by any other sense or any other manner, then it must be the evidence of the witness, who says who had perceived it by that sense or by that manner. Read in this light, when we see the CCTV footage, we are in the same position as that of a witness, who had seen the occurrence, though crime had not occurred at that time when the recording was played, but earlier.

15. HG wells in his book "The Time Machine" had said "Now I want you clearly to understand that this lever, being pressed over, sends the machine gliding into the future, and this other reverses the motion. This saddle represents the seat of a time traveler. Presently I am going to press the lever, and off the machine will go. It will vanish, pass into future Time, and disappear. Have a good look at the thing. Look at the table too, and satisfy yourselves there is no trickery." Time machine is friction, albeit seeing the CCTV footage with your own eyes as a judge gives you an insight into the real world in the past. In the present case, the court has itself seen the CCTV footage, and has travelled back in time to the time when the occurrence took place and thereby has seen the occurrence in the same position as that of a witness, who would have seen the occurrence, if he was present. There cannot be a more direct evidence. This video recording which captures the occurrence, would be per se and mostly discerningly reliable and compellingly conclusive evidence, unless its authenticity and genuineness is in question.

16. Per force, we must rule out any possibility of manipulation, fabrication or tampering. The hard-disk CCTV footage must pass the integrity test. It is a two fold test, system integrity and record integrity. It is with this over cautious and pensive approach, that we have proceeded and have bestowed our consideration. We would accept the genuineness and authenticity of the CCTV footage played before us, for good and sound reasons. System integrity test is satisfied by ocular testimonies of Rakesh Bhargawa (PW-4), Ram Milan (PW-15) and police officers H.C. Rajpal Singh (PW-7) and Inspt. B.S. Rana (PW-18). System was working and contemporaneously storing data. They had viewed the data. On record integrity, i.e., contents of the record have remained unchanged, we were anxious as it was noticed that the list of documents at Sr. No. 27, filed with the charge-sheet, mentions compact disc (CD) indicative that the hard drive had been examined and secondary evidence was created. Examination of the police case file had revealed that the CD was created at the behest of the public prosecutor, before the charge-sheet was filed. This was certainly a lapse and the hard disc sealed and deposited in the malkhana should not have been opened, even for the purpose of making copies of the video files. However, in the facts of the present case, this transgression and deviation would not unsettle and nullify the authenticity of the CCTV footage for there is no evidence or even a suggestion that the appellant Kishan Tripathi was at any time under compulsion or force, was asked to enact the crime at the place of occurrence. Moreover, the CCTV footage was seen on 23rd February, 2009 by Rakesh Bhargava (PW-4) and the police officers HC Rajpal Singh (PW-7), Insp. B.S. Rana (PW-18) and Ram Milan (PW-15) who had operated and played the CCTV footage. We are satisfied that the recorded CCTV footage has not been interpolated or tampered in the light of the original hard drive, which has been played before us. The footage recorded consists of 405 files starting from 2:06 P.M. on 21.02.2009 till 2:14 P.M. on 23.02.2009, with self generated numbers. Time and date are mentioned on the files and the video. These are not one, two or three files, but more than 400 files, created over a span of several hours. This "internal evidence" establishes its genuineness. Hard disk in the present case is not only a physical object, but a document within the meaning of section 3 of the Evidence Act [See Shamsher Singh Verma Vs. State of Haryana, 2015 (12) Scale 597]. The Supreme Court in Mobarik Ali Ahmed Vs. State of Bombay, AIR 1957 SC 857, has held that execution of a document can also be proved by the "internal evidence" contained in the contents of the document. The circumstantial evidence enforces our belief that the original document, i.e. hard drive, is original and authentic.

Delhi High Court

Kishan Tripathi @ Kishan Painter vs The State on 12 February, 2016

CRIMINAL APPEAL NO. 108/2013

 CORAM:
  HON'BLE MR. JUSTICE SANJIV KHANNA
  HON'BLE MR. JUSTICE R.K. GAUBA

Citation:2016 CRLJ(NOC)274 Del

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Whether time is essence of contract is a matter of trial?

The learned Counsel appearing for the Appellant has cited the judgment of the Apex Court in the case of Saradmani Kandappan Vs. S.

Rajalakshmi & Ors.[(2001) 12 SCC 18] and contended that the time is always the essence of such contract and therefore there was no expressed willingness and/or steps taken by the Appellant in theme, therefore the contract itself was terminated. This facets in the present case and reasons so given by the learned Judge while rejecting the interim injunction, is only one of the facets, which cannot prevail over other reasons so recorded in the above background. The time whether essence of the contract, is again a matter of trial specially the reason behind the delay and non-compliance of the obligations by the respective parties.

Merely because the submission is made that the time was not essence of the contract, that cannot be accepted as there is no admission of other side, nor the finding at the prima facie stage can be given 

Bombay High Court

Subhash Dhanraj Sankla vs Kajkhushroo Alias Kaki Phiroze ... on 12 September, 2013

Bench: Anoop V. Mohta

Citation:2013(6) MHLJ 296 Bom

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Whether private counsel can be permitted to conduct trial in session court?

“13. From the scheme of the Code the legislative
intention is manifestly clear that prosecution in a
Sessions Court cannot be conducted by anyone
other than the Public Prosecutor. The legislature
reminds the State that the policy must strictly
conform to fairness in the trial of an accused in a
Sessions Court. A Public Prosecutor is not
expected to show a thirst to reach the case in the
conviction of the accused somehow or the other
irrespective of the true facts involved in the case.
The expected attitude of the Public Prosecutor
while conducting prosecution must be couched in
fairness not only to the court and to the
investigating agencies but to the accused as well.
If an accused is entitled to any legitimate benefit
during trial the Public Prosecutor should not
scuttle/conceal it. On the contrary, it is the duty
of the Public Prosecutor to winch it to the fore
and make it available to the accused. Even if the
defence counsel overlooked it, the Public
Prosecutor has the added responsibility to bring
it to the notice of the court if it comes to his
knowledge. A private counsel, if allowed a free
hand to conduct prosecution would focus on
bringing the case to conviction even if it is not a
fit case to be so convicted. That is the reason why
Parliament applied a bridle on him and subjected
his role strictly to the instructions given by the
Public Prosecutor.
14. It is not merely an overall supervision which
the Public Prosecutor is expected to perform in
such cases when a privately engaged counsel is
permitted to act on his behalf. The role which a
private counsel in such a situation can play is,
perhaps, comparable with that of a junior
advocate conducting the case of his senior in a
court. The private counsel is to act on behalf of
the Public Prosecutor albeit the fact that he is
engaged in the case by a private party. If the role
of the Public Prosecutor is allowed to shrink to a
mere supervisory role the trial would become a
combat between the private party and the
accused which would render the legislative
mandate in Section 225 of the Code a dead
letter.”
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.131 of 2016

Anant Prakash Sinha @ Anant Sinha Vs State of Haryana 

Citation:(2016) 6 SCC105
Dipak Misra, J.
Dated:March, 4, 2016

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When illegality in the course of investigation would not vitiate the trial ?

I have examined the materials on record including the impugned judgment.
Although there is a general discussion of the evidence on record, the issue which
primarily weighed with the learned trial Judge in acquitting the accused persons
was that investigation was not conducted by a competent agency in the instant
case. Such proposition of law is contrary to the ratio of the Apex Court in the case
of H. N. Rishbud – Vs. - State of Delhi reported in A.I.R. 1955 SC 196 (paragraph
9).
In the said report the Apex Court held that the illegality in the course of
investigation would not vitiate the trial until and unless the same has occasioned
miscarriage of justice.
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Present :
The Hon’ble Justice Joymalya Bagchi
C.R.R. No. 3274 of 2010
Ashok Hazra
-VersusThe
State of West Bengal & Ors.


Judgment on: November 10, 2014.
Joymalya Bagchi, J.:
Citation;2015 CRLJ(NOC)489 Cal

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Whether trial of seven distinct offences is permissible in one trial?

 The first issue whether the learned CMM should have, in the facts and circumstances of the case, ordered a joint trial. For this purpose, it may be relevant to note the provisions with respect to joinder of charges which are provided in Part B of Chapter XVII of the Cr.P.C. The Sections in the said part of Chapter XVII span from 218 to 224. Section 218 in a sense embodies a general rule which postulates that for every distinct offence of which any person is accused of, there shall be a separate charge for each of the said offences and every such charge shall be tried separately. The Section contains a proviso which enables an accused to move a written application, and if the Court is of the view that no prejudice would be caused to the accused, it may try all or any number of the charges framed against the accused. Sub-section (2) clearly stipulates that the provisions of Section 218 shall not impinge upon the provisions of Sections 219, 221 and 223. Therefore, a bare reading of Section 218 brings to fore the point that the law requires that for each distinct offence a separate charge should be framed and each charge should be tried separately. The exceptions are provided in the subsequent provisions, that is,Sections 219 to 221 and 223. 7.2 In the present case, the learned counsel for the petitioners has relied upon Sections 219 and 220 of the Cr.P.C. to buttress his submissions that a joint trial ought to have been ordered. 7.3 Section 219 stipulates that when a person is accused of more than one offence of the same kind which are committed within a time span of 12 months from first to the last of such offences, whether in respect of the same person or not, the accused may be charged with, and tried at one trial for any number of offences not exceeding three (3). Sub-section (2) provides that offences are of the same kind when they are punishable with the same amount of punishment under the same Section of the IPC or of any special or local law. The proviso not being relevant for the purposes of this case has not been referred to herein. A bare reading of Section 219 would show that firstly, it is an exception to the general rule laid out inSection 218 of the Cr.P.C., which stipulates separate charges for each distinct offence and each charge be tried separately. Section 219 thus being an exception to the general rule crafted inSection 218 permits joint trial if a person is accused of more offences than one, provided they are of the same kind and they are committed within a time frame of 12 months as indicated in the provision. The limiting factor being that the Section enables a Court to order one trial in respect of three charges for three offences of the same kind even though they may be committed against different persons. On the face of it, Section 219 is not applicable to the facts of the present case since the petitioners has asked for a joint trial with respect to seven cases. Even if one were to assume for the sake of argument that these were offences of the same kind committed within a period of 12 months, the provision would not apply in view of the statutory limit prescribed therein. The purpose of the statute is clear that if more than three charges are tried by a single trial the accused is likely to be bewildered and hence, the legislature abjures the Court from joinder of charges of more than three offences in a single trial.

Delhi High Court

M/S Nova Vision Electronics ... vs State And Another on 15 July, 2009

Author: Rajiv Shakdher

Citation;2011 CRLJ868 Delhi

Read full judgment here;click here

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Whether court can acquit accused in trial which he is not competent to conduct in view of invalidity of order of sanction?

 In the case at hand, the Special Court not only entertained the contention urged on behalf of the accused about the invalidity of the order of sanction but found that the authority issuing the said order was incompetent to grant sanction. The trial Court held that the authority who had issued the sanction was not competent to do so, a fact which has not been disputed before the High Court or before us. The only error which the trial Court, in our opinion, committed was that, having held the sanction to be invalid, it should have discharged the accused rather than recording an order of acquittal on the merit of the case. As observed by this Court in Baij Nath Prasad Tripathi’s case (supra), the absence of a sanction order implied that the court was not competent to take cognizance or try the accused. Resultantly, the trial by an incompetent Court was bound to be invalid and non-est in law.

18. To the same effect is the decision of this Court in Mohammad Safi vs. The State of West Bengal (AIR 1966 SC 69). This Court observed:

“As regards the second contention of Mr. Mukherjee it is necessary to point out that a criminal court is precluded from determining the case before it in which a charge has been framed otherwise than by making an order of acquittal or conviction only where the charge was framed by a court competent to frame it and by a court competent to try the case and make a valid order of acquittal or conviction. No doubt, here the charge was framed by Mr. Ganguly but on his own view he was not competent to take cognizance of the offence and, therefore, incompetent to frame a charge. For this reason the mere fact that a charge had been framed in this case does not help the appellant.

12. In addition to the competent of the court, s. 403 of the Code speaks of there having been a trial and the trial having ended in an acquittal. From what we have said above, it will be clear that the fact that all the witnesses for the prosecution as well as for the defence had been examined before Mr. Ganguly and the further fact that the appellant was also examined under s. 342cannot in law be deemed to be a trial at all. It would be only repetition to say that for proceedings to amount to a trial they must be held before a court which is in fact competent to hold them and which is not of opinion that it has no jurisdiction to hold them. A fortiori it would also follow that the ultimate order made by it by whatever name it is characterised cannot in law operate as an acquittal. In the Privy Council case it was interpreted by Sir John Beaumont who delivered the opinion of the Board to be an order of discharge. It is unnecessary for us to say whether such an order amounts to an order of discharge in the absence of any express provision governing the matter in the Code or it does not amount to an order of discharge. It is sufficient to say that it does not amount to an order of acquittal as contemplated by s. 403(1) and since the proceedings before the Special Judge ended with that order it would be enough to look upon it merely as an order putting a stop to the proceedings. For these reasons we hold that the trial and eventual conviction of the appellant by Mr. Bhattacharjee were valid in law and dismiss the appeal.”

Supreme Court of India

Nanjappa vs State Of Karnataka on 24 July, 2015

Bench: T.S. Thakur, Amitava Roy

Citation; 2015(3) Crimes 125 SC

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Whether principle of issue estoppel is applicable to criminal trial?

“23. This Court has time and again explained the

principle of issue estoppel in a criminal trial

observing that where an issue of fact has been tried

by a competent court on an earlier occasion and a

finding has been recorded in favour of the accused,

such a finding would constitute an estoppel or res

judicata against the prosecution, not as a bar to the

trial and conviction of the accused for a different

or distinct offence, but as precluding the

acceptance/reception of evidence to disturb the

finding of fact when the accused is tried 

subsequently for a different offence. This rule is

distinct from the doctrine of double jeopardy as it

does not prevent the trial of any offence but only

precludes the evidence being led to prove a fact in

issue as regards which evidence has already been

led and a specific finding has been recorded at an

earlier criminal trial. Thus, the rule relates only to

the admissibility of evidence which is designed to

upset a finding of fact recorded by a competent

court in a previous trial on a factual issue…”

We therefore reject the submission.

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs.1041-1042 of 2008

Ashwani Kumar @ Ashu & Anr. Vs State Of Punjab 

Citation: (2015)6 SCC308

Uday Umesh Lalit, J.

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Whether subsequent judgment will operate as issue estoppel ?

We now deal with the case of the other appellants. The
submission advanced by Shri Tulsi that the subsequent judgment will
operate as issue estoppel is not correct. First and foremost the
offences are different and distinct. The rule regarding issue estoppel
relates to admissibility of evidence in subsequent proceedings which
is designed to up-set a finding of fact recorded on the previous
occasion and mandates that the finding so rendered on earlier occasion
must operate as issue estoppel in subsequent proceedings. It makes it
impermissible to lead any such evidence at a subsequent stage or
occasion. The attempt on part of Mr. Tulsi is just the opposite. He
seeks to rely on the finding at a subsequent stage to up-set a finding of
fact recorded on a previous occasion. The law on the point was
succinctly stated by this Court in Sangeetaben Mahendrabhai Patel
v. State of Gujarat (2012) 7 SCC 621 in following words:
“23. This Court has time and again explained the
principle of issue estoppel in a criminal trial
observing that where an issue of fact has been tried
by a competent court on an earlier occasion and a
finding has been recorded in favour of the accused,
such a finding would constitute an estoppel or res
judicata against the prosecution, not as a bar to the
trial and conviction of the accused for a different
or distinct offence, but as precluding the
acceptance/reception of evidence to disturb the

finding of fact when the accused is tried
subsequently for a different offence. This rule is
distinct from the doctrine of double jeopardy as it
does not prevent the trial of any offence but only
precludes the evidence being led to prove a fact in
issue as regards which evidence has already been
led and a specific finding has been recorded at an
earlier criminal trial. Thus, the rule relates only to
the admissibility of evidence which is designed to
upset a finding of fact recorded by a competent
court in a previous trial on a factual issue…”
We therefore reject the submission.

Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOs.1041-1042 of 2008

Ashwani Kumar @ Ashu & Anr. V State Of Punjab 

Citation;(2015)6 SCC308
Uday Umesh Lalit, J.

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Whether public prosecutor can interview witness before trial?

Cr.P.C. S.231: Public Prosecutor can interview the witness before hand: The situation in a case where the prosecution cited categories of witnesses of the occurrence, one consisting of persons closely related to the victim and the other consisting of witnesses who have no such relation, the public prosecutor’s duty to the Court may require him to produce witnesses from the later category, also subject to his discretion to limit to one or two among them. But if the public prosecutor got reliable information that any one among that category would not support the prosecution version he is free to state in court about that fact and skip the witness from being examined as a prosecution witness. It is open to the defence to cite him and examine him as a defence witness. The decision in this regard has to be taken by the Public Prosecutor in a fair manner. He can interview the witness before hand to enable him to know well in advance the stand which that particular person would be adopting when examined as a witness in Court.

Supreme Court of India

Banti @ Guddu vs State Of Madhya Pradesh on 4 November, 2003

Bench: Doraiswamy Raju, Arijit Pasayat

Citation;AIR 2004 SC 261.

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Whether anticipatory bail can be granted when warrant is issued during trial due to non-attendance of accused?

A Magistrate who issues a warrant knows fully why the accused is avoiding to remain present before the Court and non-appearance causes obstruction in the smooth working of the Court. It is a hurdle in speedy disposal of the matter and therefore the Magistrate issues non-bailable or bailable warrant. On number of occasions, a Magistrate is constrained to issue non-bailable warrant to compel a person to appear before the Court as the trial is at a standstill for want of appearance. To remove this stagnation, the appearance is a must. Though pre-arrest bail can be granted under section 438, however, it cannot be granted in any or each and every impending arrest in non-bailable offence, which is pursuant to a warrant of arrest issued by the learned Magistrate for any other purpose but not under section 204 of Cr. P.C. Thus, anticipatory bail cannot be sought when warrant is issued during the trial due to non-attendance of the accused. 

Bombay High Court

Himanshu @ Hemant Rajendra Bhatt vs The State Of Maharashtra on 30 April, 2014

Bench: Mridula Bhatkar

Citation; 2014 ALLMR(cri)3944 Bom     

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