1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL MISC. APPLICATION NO.296 OF 2011 Mahendra S. Sood ...Applicant. v/s. The State ...Respondents. Mr.H.E.Mooman ,adv. For the Applicant. Smt. U.V.Kejriwal, APP For the Respondent/State. CORAM : J.H. BHATIA, J. DATED : APRIL 8, 2011. P.C. MENTIONED. NOT ON BOARD. TAKEN ON BOARD. 1 Heard Mr. Mooman the learned counsel for the applicant and the learned APP. Perused the record. It appears that the applicant is accused no.1 in Sessions Case No.586 of 2008 (New No.817 of 2008) and it was fixed for evidence before the Additional Sessions Judge Mr. N.P.Dalvi. On that date, accused nos.1 and 2, who are on bail, were present. It appears that prosecutor was also present alongwith witness named Chetan. However, Mr. Mooman, who is advocate on record for the accused no.1 was not available till 12.30 noon. At that time, accused no.1 informed that his advocate would be coming within 15 minutes. Court waited for the advocate till 1.15 p.m. but advocate Mr. Mooman did not turn up. Because of the absence of the advocate, evidence for the prosecution witness could not be recorded. In view of these 2 circumstances, after having given warning to the accused no.1 to get his advocate present or to face cancellation of his bail, the learned Additional Sessions Judge cancelled the bail of the accused. It appears that at 4.20 p.m. on the same day, Mr. Mooman made an application for recalling that order. However, that application was rejected. Applicant was taken in custody on 18.3.2011 and he is in jail. By this application he seeks to be released on bail. 2 Cancellation of bail of the accused, who is present before the Court can not be justified. The bail could be cancelled only if the accused himself is absent . When the accused himself is present before the Court, when the case is called for trial, merely because his advocates is not available or remains absent for one or the other reasons, the accused could not be taken in custody. Therefore, the order passed by the Additional Sessions Judge is clearly wrong and, therefore, applicant deserves to be granted bail. 3 At the same time, it has to be noted that sometimes the lawyers take the Court for granted and remain absent on the ground that they are busy in some other Court and in some other matters and keep the Trial Court, Public Prosecutor and the witnesses waiting for the whole day. Though Mr. Mooman denies, in the impugned order, the 3 learned Additional Sessions Judge has clearly recorded that many times Mr.Mooman did not appear and is in habit of sending messages that he is busy somewhere else and ,therefore, witnesses were required to wait. He has mentioned that in one matter , witnesses were required to wait till evening but he did not turn up. He simply sent messages. This type of conduct can not be appreciated. In such cases, if accused is present before the Court, the Court can not cancel the bail of the accused but can impose heavy cost or put other conditions so that the concerned accused as well as lawyer understand the importance of attending the Court. 4 In view of the above circumstances and observations, application is allowed and accused be released on same terms and conditions as well as on same bonds. The trial Court shall take note of the above observations in case the advocates remain habitually absent. (J.H. BHATIA,J.)