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N.K.Assumi (Advocate)     04 February 2010

Appereance of accused before the Court in A/B

Is it mandatory for the accused to appear before the Court at the time of moving the Anticipatory Bail appllication and at the time of its hearing?


 11 Replies

Jithendra.H.J (Lawyer)     04 February 2010


Jithendra.H.J (Lawyer)     04 February 2010

Accused presence is not at all required before the court where u moved the A/B petition, his presence is required only before the trail court when  u move application for regular bail


go ahead, all the best

Suchitra. S (Advocate)     04 February 2010

As far as I knw, it is necessary for the accused to be present in the court even for AB. I did not know it is not required, Jitendra Sir,

N.K.Assumi (Advocate)     04 February 2010

Dear Suchitra, Jithendra is correct, I just received a copy of the Bomby High Court, from a friend, where the Bombay High Court granted Anticipatory Bail to one Sashikant, who was in Switzerland. I was thinking of this issue, as if the accused appears before the Court it wil amount to surrender in the court, as the words in section 437 CrPc used the word appears. I remember one case way back in 1996 where I forced my client to apear before the court and asked the bail under section 437 CrPc and bail was granted by the Mgistrate. So the correct positio of law wil be that at the time of interim A/B accused need not appear but in final hearing accused should be present. Thank you for the contributions.


S.438 (1B) Cr.P.C. The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court Considers such presence necessary in the interest of justice.


Suchitra and Jitendra are partially correct.

Suchitra. S (Advocate)     04 February 2010

Thanks for all the clarifications, seniors..  :)

Anish goyal (Advocate)     05 February 2010

Sir as per my littel knowledge that amendment of section 438 has not yet been implemented. Please correct me if i am wrong.



As per Maharashtra act 24 of 1993  the said provision is in force w.e.f. 28.7.1993. Since I was concerned with Maharashtra, my immediate response as above.  However I will verify and confirm whether Central enactment has come into force or not. 



You seems to be correct the Central Act seems to have not been enforced. In fact

2 03 r d Report of the Law Commission on ‘Anticipatory

Bail’ dated December 26, 2007 The Law Commission has thus recommended revision of the

amended Section 438 as follows:

(i) The proviso to sub-section (1) of Section 438

shall be omitted.

(ii) Sub-section (1B) shall be omitted.

(iii) A new sub-section on the lines of Section 397 (3)

should be inserted.

(iv) An Explanation should be inserted clarifying that

a final order on an application seeking direction

under the Section shall not be construed as an

interlocutory order for the purposes of the Code.
However Maharashtra continues to have the provision since 28.7.1993 unless some friends from Maharashtra corrects me.
In view of the position in the central enactment, Jitendra seems to be fully correct.
However in Maharashtra accused presence is necessary
1. if public prosecutor makes an application and
2. Court considers such presence necessary in the interest of justice.
Thanks Anish for alerting me,

Anish goyal (Advocate)     05 February 2010

Anil sir you r always welcome.

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