SIVAPRASAD KANUKUNTLAversusSTATE OF GUJARAT

     R/CR.RA/1340/2026                                    ORDER DATED: 04/05/2026




            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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R/CR.RA/1340/2026                              ORDER DATED: 04/05/2026




           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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R/CR.RA/1340/2026                              ORDER DATED: 04/05/2026




           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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          R/CR.RA/1340/2026                                                            ORDER DATED: 04/05/2026




              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

Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: MAULIK RAJESH PANDYA(HC00205), PRINCIPAL PRIVATE SECRETARY, at High Court of Gujarat on 04/05/2026 18:00:28




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