Gujarat High Court
M/S. Laxmi Group Of Industries vs State Of Gujarat on 16 April, 2026
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.RA/1079/2026 ORDER DATED: 16/04/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 1079 of 2026
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M/S. LAXMI GROUP OF INDUSTRIES & ANR.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR VISHAL K ANANDJIWALA(7798) for the Applicant(s) No. 1,2
MR MANAN MEHTA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 16/04/2026
ORDER
1. The prayer is made for conversion of non-bailable
warrant to bailable warrant which was ordered to be issued by
the learned Additional Chief Judicial Magistrate, Gandhidham-
Kachchh on 06.10.2025. Learned Advocate Mr. Vishal
Anandjiwala submitted that the applicant are desirous of
challenging the conviction order and sentence of the same
date passed under Section 138 of the Negotiable Instruments
Act.
2. Learned Advocate Mr. Vishal Anandjiwala submitted that
since non-bailable warrant has been issued and the sentence
could not be suspended for the appeal to be preferred, as the
order of non-bailable warrant comes in the way of the
applicant to move the appellate Court to challenge the
conviction judgment.
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3. The impugned order came to be passed in-absentia and
therefore, warrant under Section 418 (2) of the Code of
Criminal Procedure was ordered to be issued.
4. Having considered the provisions of Section 418 (2) of
the Cr.PC and as per under instructions, advocate Mr.
Anandjiwala submits that the non-bailable warrant has yet not
been executed to the applicant. Hence, made a prayer to allow
appellant to file the appeal before the appellate Court
challenging the judgment of conviction and sentence, by
setting aside the non-bailable warrant converting into bailable
warrant.
5. 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 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 andPage 2 of 8
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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 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 obligationPage 3 of 8
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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 ofPage 4 of 8
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conviction is pronounced in his absence just,
reasonable and orderly procedure 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 inPage 5 of 8
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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 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.PC 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 of directing the officer in charge of
jail to confine the accused in jail.
8. Section 389(3) of Cr.PC, expresses that if the convicted
person satisfies the Court by which he is convicted, that he
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intends to present an appeal, the Court shall, where such
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.PC, 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.PC 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.PC 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 & 1 Vs. State of Gujarat & 1, in
Special Criminal Application (quashing) No.9113 of 2016, this
Court also 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.PC making a prayer for
provisional bail to enable him to prefer criminal appeal before
the Sessions Court against the conviction and sentence. The
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delay condonation application, if necessary, may be preferred
and heard on merits.
11. In view of the same, the non-bailable warrant, which has
been issued in view of the conviction to face the sentence is
converted into bailable warrant of Rs.10,000/-.
12. The present application stands disposed of. Direct service
permitted.
(GITA GOPI,J)
PARMAR KRISH/SB02
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