1 701.11-aba bgp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION ANTICIPATORY BAIL APPLICATION NO.701 OF 2011 Yogesh Sudam Gholap & Ors. ..Applicants Vs. The State of Maharashtra & Ors. ..Respondents Mr.Subhash Jha i/b. Subhash Hulyalkar for the Applicant. Mr.K.V.Saste, APP for Respondents. .... CORAM :- J.H.BHATIA, J. DATE :- AUGUST 22, 2011. P.C. 1. The learned Counsel for the applicants makes a statement that the applicants have also filed an application for anticipatory bail before the Sessions Court at Pune. A request for ad-interim anticipatory bail was rejected and the application is still pending for reply of the prosecution and final hearing. The learned Counsel states that even though there are no written orders by the Sessions Court, a common practice is that unless the applicant remains present at the time of final hearing, the orders are not passed. In view of the provisions of sub section 1(a) and 1(b) of Section 438 of the Code of Criminal Procedure, when an ad- interim anticipatory bail is granted, a notice has to be served on the Public Prosecutor immediately to give a reasonably opportunity of being heard when the application shall be finally heard by the Court and the presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application, if the Court considers such presence is necessary in the interest of justice. 2 701.11-aba 2. If an ad-interim relief has not been granted, Section 438 does not mandate the presence of the accused or the applicant at the time of hearing of the application for anticipatory bail. The learned APP concedes this legal position. As in the present case, ad-interim anticipatory bail has not been granted, the applicant may point out the legal position to the Trial Court. In view of this legal position, the learned Counsel for the applicant seeks to withdraw this application so as to pursue the application pending before the Sessions Court. Application stands disposed of as withdrawn. (J.H.BHATIA,J.)