[Cites 11, Cited by 0]
Gujarat High Court
Sivaprasad Kanukuntla vs State Of Gujarat on 4 May, 2026
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.RA/1340/2026 ORDER DATED: 04/05/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST CONVICTION -
NEGOTIABLE INSTRUMENT ACT) NO. 1340 of 2026
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SIVAPRASAD KANUKUNTLA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR JAY H PATEL(11511) for the Applicant(s) No. 1
MR NIRAJ SHARMA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 04/05/2026
ORDER
1. By way of the present application under Section 438 read with
Section 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023,
the applicant has prayed for conversion of non-bailable
warrant into bailable warrant, which was ordered to be issued
by the learned 2nd Additional JMFC & Civil Judge on
17.12.2025.
2. Learned advocate for the applicant submitted that the
applicant is desirous of challenging the conviction order and
sentence of the same date passed under Section 138 of the
Negotiable Instruments Act, 1881.
3. Learned advocate for the applicant submitted that since non-
bailable warrant has been issued and the sentence could not
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be suspended for the appeal to be preferred, the order of
non-bailable warrant comes in the way of the applicant to
move the Appellate Court to challenge the conviction
judgment.
4. The impugned order came to be passed in-absentia and
therefore, non-bailable warrant under Section 418(2) of the
Code of Criminal Procedure, 1973 would be issued.
5. Having considered the provisions of Section 418(2) of the
Cr.P.C. and as per the instructions, learned advocate for the
applicant submitted that the non-bailable warrant has not yet
been executed to the applicant and hence, made a prayer to
allow file the appeal before the Appellate Court challenging
the judgment of conviction and sentence.
6. In the case of Lallan Singh and others Vs. State of Uttar
Pradesh, the Hon'ble Supreme Court made the observations in
paras 10, 10.1, 10.2 and 10.3, which are elicited as under:-
"10. The legal position as to the process that
should follow an order or conviction is much too
clear to require any special emphasis. We say so
because Chapter XXXII of the Code of Criminal
Procedure, 1973, prescribes the process and the
procedure to be followed for execution of sentence
of death and/or other sentences awarded to
convicts. We may in particular refer to Sections
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417, 418, 472 and 420 Cr.PC which deal with the
power to appoint place of imprisonment of the
convict, the execution of sentence of
imprisonment and the direction of warrant for
execution as also the persons with whom the
same has to be lodged:
10.1 Section 418 of the Code in particular deals
with execution of sentence imprisonment and
inter alia empowers and obliges the court passing
the sentence to forthwith forward a warrant to the
jail or other place in which he is, or is to be,
confined, and, unless the accused is otherwise
confined in such jail or other place to forward him
to such jail or other place with a warrant. In terms
of sub-section (2) of Section 418, where the
accused is not present in the Court when sentence
of imprisonment as is mentioned in sub-section
(1) is pronounced, the Court is required to issue a
warrant for his arrest for the purpose of
forwarding him to jail or other place in which he is
to be confined and in such cases the sentence
shall commence on the date of his arrest. There is
thus no gainsaying that upon conviction of an
accused and sentence of imprisonment awarded
to him, the Court concerned is expected to
commit him to jail in terms of a warrant that
would authorities him confinement for the period
he is to undergo such imprisonment. We have no
reason to believe that this procedure is not
followed invariably in all such cases where the
convict is not present before the Court concerned
and is required to be committed to imprisonment
for undergoing the sentence.
10.2 We also believe that the process of issuing
warrant to apprehend the convict is followed
diligently in keeping with the spirit underlying
Section 418 Cr.PC.
10.3 The difficulty, in our opinion, arises when
the warrants so issued by the Court concerned
remain unexecuted. This happens not only in
cases where the accused has been convicted and
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sentenced by the trial Court but also where an
appeal or revision preferred against the conviction
is eventually dismissed by the High Court. There
is no manner of doubt that even in such cases,
the Court is under an obligation after receipt of an
intimation about the dismissal of the appeal or
revision preferred by the convicts, to follow the
procedure under Section 418 Cr.PC for
apprehension of the accused, in case he has not
surrendered voluntarily, and to commit him to jail
to undergo the sentence awarded to him.
Experience, however, shows that when warrants
are forwarded to the police for execution the same
remain unexecuted for years as noticed by us in
the case at hand where despite the dismissal of
the appeal filed by two of the life convicts, held
guilty of a double murder, had remained at large
for considerably long period."
6. The single Judge of Kerala High Court in
case of Jain Babu Vs. K.J. Joseph, reported in
2009(1) Crimes (HC) 629, observed that if the
accused is not on bail, execution of the sentence
cannot be suspended under section 389(3) Cr.P.C.
to enable him to prefer an appeal. The Apex Court
has further dealt with the situation, where during
trial the accused is exempted from personal
attendance, and judgment is pronounced in his
absence. Para-30 of the said judgment is quoted
hereunder for ready reference:
"30. If the accused is not on bail, execution of the
sentence cannot be suspended under Section
389(3) Cr.P.C to enable an accused to prefer an
appeal. The courts will be obliged to straight away
execute the sentence. This may amount to denial
of the right of an accused to get the sentence
suspended to enable him to prefer an appeal, at it
is apprehended by some counsel. I find no merit
in this apprehension. In a case where the accused
is exempted under Section 205 Cr.P.C and the
judgment of conviction is pronounced in his
absence just, reasonable and orderly procedure
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mandates that the court must direct the accused
to appear before court on a specified day for
execution of sentence. Imbibing the mandate of
Section 389(3) Cr.P.C, any reasonable Magistrate
must post the case for appearance of the accused
only on such a date, which will ensure that the
accused gets reasonable time to prefer an appeal
in the meantime. Further, I am unable to accept
the contention that the language of Section
389(3) Cr.P.C would bar the suspension of
sentence in a 138 prosecution, when the presence
of the accused is exempted under Section 205
Cr.P.C. Under Section 389(3) Cr.P.C. when the
accused is on bail, the sentence can be
suspended. It will be succumbing to the tyranny
of linguistic technicality to assume that when a
court has chosen to exempt an accused from
personal appearance and the obligation to seek
bail, he will not be entitled to the benefit or
advantage to which a person released on bail will
be entitled to. The expressions "being on bail" and
"is on bail" appearing in Section 389(3)(i) and (ii)
Cr.P.C. must be read and understood reasonably
to include an accused from whom bail has not
been demanded at all and who enjoys his
freedom. A judicial functionary who is unable to
find space to extend the benefit of Section 389(3)
Cr.P.C to an accused who enjoys his freedom, who
is not in custody, who has not been directed even
to offer bail and who has been exempted from
personal appearance under Section 205 Cr.P.C is
definitely missing the woods for the trees. He
lacks orientation in human rights jurisprudence
and does lack the training to jump over
insignificant fences. Sentence imposed on an
exempted accused, in whose absence judgment is
pronounced need not be executed till the next
date of posting. On such next date he must be
directed to appear in person or produce order of
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suspension if any from the appellate court. An
exempted accused who has been directed only to
appear to receive judgment must be held to be a
person to whom the benefit of Section 389(3)
Cr.P.C is available, he having been exempted
already from the obligation to appear and offer
bail. This apprehension is thus found to be without
substance."
7. Section 418(2) of Cr.PC provides that where the accused is
not present in Court when he is sentenced to such
imprisonment as is mentioned in sub-section (1), the Court
shall issue a warrant for his arrest for the purpose of
forwarding him to the jail or other place in which he is to be
confined; and in such case, the sentence shall commence on
the date of his arrest. Section 419 of Cr.P.C. refers that every
warrant for the execution of a sentence of imprisonment shall
be directed to the officer in charge of the jail or other place in
which the prisoner is, or is to be, confined. The impugned
order of the learned Additional Chief Judicial Magistrate,
Ahmedabad does not note as to whether the warrant for
execution of sentence had been executed, though proved to
be ordered by the Court.
8. Section 389(3) of Cr.P.C., expresses that if the convicted
person satisfies the Court by which he is convicted, that he
intends to present an appeal, the Court shall, where such
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person, being on bail, is sentenced to imprisonment for a
term not exceeding three years, or, where the offence of
which such person has been convicted is a bailable one, and
he is on bail, order that the convicted person be released on
bail, unless there are special reasons for refusing bail, for
such period as will afford sufficient time to present the appeal
and obtain the orders of the appellate Court under sub-section
(1) of Section 389 of Cr.P.C., and the sentence of
imprisonment shall, so long as he is so released on bail, be
deemed to be suspended.
9. In the referred judgment of Jain Babu (supra), the
expressions "being on bail" and "is on bail" appearing in
Section 389(3) (i) and (ii) Cr.P.C. is said to be read and
understood reasonably to include an accused from whom bail
has not been demanded at all and who enjoys his freedom.
Further observations leads to the judicial functionary unable
to find space to extend the benefit of Section 389(3) Cr.P.C.
to an accused who enjoys his freedom, who is not in custody,
who has not been directed even to offer bail.
10. In view of the observations made in the case of Ishwarbhai
Hirabhai Chunara Vs. State of Gujarat, in Special Criminal
Application (quashing) no.9113 of 2016, this Court also
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deems fit to grant an opportunity to the applicant-accused to
appear before the Appellate Court and on the date of
appearance, it would be open for the applicant to file an
application under Section 389(3) Cr.P.C. making a prayer for
provisional bail to enable him to prefer criminal appeal before
the Sessions Court against the conviction and sentence. The
delay condonation application, if necessary, may be preferred
and heard on merits.
11. In view of the same, the non-bailable warrant in view of
sentence warrant, which has been issued owing to the
conviction to face the sentence is converted into bailable
warrant of Rs.10,000/-.
12. Accordingly, the present application stands disposed of. Direct
service permitted.
(GITA GOPI,J)
Maulik
