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?
N.K.Assumi (Advocate) 04 February 2010
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?
Jithendra.H.J (Lawyer) 04 February 2010
No
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. S (Advocate) 04 February 2010
Thanks for all the clarifications, seniors.. :)
Anish goyal (Advocate) 05 February 2010
Anish
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
(i) The proviso to sub-section (1) of Section 438
(ii) Sub-section (1B) shall be omitted.
(iii) A new sub-section on the lines of Section 397 (3)
(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
Anish goyal (Advocate) 05 February 2010