The court ruled that an accused should not be compelled to surrender during the appeal process if the conviction warrant has not been executed, affirming their right to appeal.

ORAL ORDER

1. By way of present revision application, the applicants have prayed for the following reliefs:

“6(A)This Hon’ble Court be pleased to call for the record and proceedings in Criminal Case No.6097 of 2022 from the Court of the learned 7th Additional Judicial Magistrate Court, Ahmedabad Rural and be pleased to examine the same;

6(B) This Hon’ble Court be pleased to quash and set aside Judgement and order dated 09.05.2024 passed by the Ld. 7th Additional Judicial Magistrate Court, Ahmedabad Rural in Criminal Case No.6097 of 2022 qua the issuance of Sentence Warrant (non-bailable warrant;

6(C) This Hon’ble Court be pleased to convert the sentence warrant (non-bailable warrant) issued vide Judgement and order dated 09.05.2024 passed by the Ld. 7th Addl. Judicial Magistrate Court, Ahmedabad Rural in Criminal Case No.6097 of 2022 into the bailable warrant;

6(D) Pending admission and/or final disposal of the present application this Hon’ble Court be pleased to stay the execution of sentence warrant (non-bailable warrant) issued vide Judgement and order dated 09.05.2024 passed by the Ld. 7th Addl. Judicial Magistrate Court, Ahmedabad Rural in Criminal Case No.6097 of 2022;

6(E) Ad-interim and/or interim relief in terms of para (D)

hereinabove;

6(F) Any such other and further orders as thought fit in the interest of justice.”

2. This Court does not consider it necessary to hear the complainant in view of provision under Section 444 of the Bharatiya Nagrik Suraksha Sanhita Act, 2023, as the matter requires urgent hearing.

3. Mr. Bomi Sethna, learned advocate for the applicants submits that present applicants were represented by a lawyer on record, however, he failed to cross examine the witnesses during the trial in proceedings under Section 138 of the Negotiable Instruments Act, 1881.

4. Mr. Sethna, learned advocate submitted that learned 7th Additional Judicial Magistrate Court, Ahmedabad (R) on 09/05/2024 had declared the judgment and order of imprisonment of one year and deposit of fine of Rs.32,10,000/- and in default of payment of fine, the accused no.2 was ordered to suffer simple imprisonment for further three months.

5. Mr. Sethna, learned advocate submitted that in view of Section 357(1) of the Criminal Procedure Code, compensation amount of Rs.32,00,000/- was ordered to be paid to the complainant out of the recovered fine after the appeal period. Mr.Sethna, learned advocate, thus, submitted that learned 7th Additional Chief Judicial Magistrate, Ahmedabad (R) had permitted the accused to prefer the appeal. Since, the judgment of conviction and sentence was passed in absentia, thus, the accused could not move the trial court making a prayer for suspension of sentence under Section 389 (3) of the Cr.P.C. After coming to know about the judgment of conviction, Criminal Appeal No.2578 of 2024 was filed, on 08/08/2024 and now the status is for process to the respondents.

6. Mr.Sethna, learned advocate submitted that along with the appeal, the application was moved for suspension of sentence and the prayer for bail. Mr.Sethana, learned advocate submitted that through out the trial proceedings, the applicants were on bail and, now, there is an insistence for surrendering in view of the order of warrant by the 7th Additional Chief Judicial Magistrate, Ahmedabad (R) on 09/05/2024 while passing the judgment.

7. Mr.Sethna, learned advocate has relied upon the judgment of High Court of Madras in case of Easwaramurthy vs N. Krishnaswamy reported in 2006 Criminal Law General 4105 and a judgment in Criminal Revision Application No.301 of 2022 with allied matters of High Court of Judicature at Bombay Bench at Aurangabad to submit that the scheme of Section 389 of Criminal Procedure Code does not state that prior to preferring an appeal, the accused have to surrender before the trial court and stated that as soon as the appeal gets admitted of the convicted person, Section 389(1) of the Criminal Procedure Code would come in force and the appellate