Gujarat High Court
Nareshbhai Maganbhai Bhambhaniya vs State Of Gujarat on 8 April, 2025
NEUTRAL CITATION
R/CR.RA/335/2017 ORDER DATED: 08/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST CONVICTION) NO. 335
of 2017
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NARESHBHAI MAGANBHAI BHAMBHANIYA & ORS.
Versus
STATE OF GUJARAT
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Appearance:
MR PRATIK Y JASANI(5325) for the Applicant(s) No. 1,2,3
MR. HARDIK SONI, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 08/04/2025
ORAL ORDER
1. The present revision application is preferred under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 to assail the correctness and validity of the judgment and order dated 12.1.2017 passed by the learned 5th Additional Sessions Judge, Jamnagar in Criminal Appeal No. 21 of 2016 whereby learned Appellate Court was pleased to dismiss the appeal and confirm the order dated 30.1.2016 passed by learned 3rd Additional Civil Judge and Chief Judicial Magistrate Court, Jamnagar in Criminal Case No. 6785 of 2013 whereby the present revisionist- applicants were convicted.
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2. The brief facts leading to filing of the present case is that one Jiteshbhai Baraiya filed First Information Report being C.R. No. 318/2013 before the Jamnagar City 'B' Division Police Station for the offence punishable under Sections 325, 324, 323, 5-04 and 114 of the Indian Penal Code and Section 135(1) of the Gujarat Police Act against the present revisionist-applicants.
3. Pursuant to the First Information Report, charge- sheet came to be filed and subsequently charge came to be framed and after looking to the evidence and hearing the arguments of learned advocates for both the parties in Criminal Case No. 6785 of 2013, the learned 3 rd Additional Civil Judge and Chief Judicial Magistrate Court, Jamnagar was pleased to convict and further order the revisionist-applicants to undergo Simple Imprisonment of six months with a fine of Rs.1000/- and in default for offence punishable under Section 325. Further, simple imprisonment for one month for the offence punishable under Section 324 and 114 of the Indian Penal Code. The applicants were also ordered to Page 2 of 10 Uploaded by SAJ GEORGE(HC01069) on Wed Apr 16 2025 Downloaded on : Sat Apr 19 00:02:10 IST 2025 NEUTRAL CITATION R/CR.RA/335/2017 ORDER DATED: 08/04/2025 undefined undergo Simple Imprisonment of three months with a fine of Rs.500/- and in default, 15 days simple imprisonment for the offence punishable under Section 323 of the Indian Penal Code.
4. Being aggrieved and dissatisfied by the order passed by the learned Chief Judicial Magistrate, Jamnagar, the revisionist-applicants preferred an appeal being Criminal Appeal No. 21 of 2016 before the 5th Additional Sessions Judge, Jamnagar wherein the learned appellate Court was pleased to reject the appeal preferred by the revisionist - applicants. This Order by the learned appellate Court confirming the order passed by the learned trial Court is assailed in the present revision application.
5. Heard Mr. Pratik Jasani, learned advocate for the revisionist applicants and Mr. Hardik Soni, learned Additional Public Prosecutor for the respondent State.
6. The main crux of the arguments by Mr. Jasani is that instead of assailing the conviction order on merits, it would be in fitness of things if the sentence already Page 3 of 10 Uploaded by SAJ GEORGE(HC01069) on Wed Apr 16 2025 Downloaded on : Sat Apr 19 00:02:10 IST 2025 NEUTRAL CITATION R/CR.RA/335/2017 ORDER DATED: 08/04/2025 undefined undergone by the revisionist-applicants would have been confined to sentence given by the learned trial Court. In view of the same, Mr. Jasani, learned advocate for the revisionist-applicants has requested to consider this matter in appropriate manner. Therefore, according to Mr. Jasani, the sentence of two days and five days undergone by accused No.1 and accused Nos.2-3 respectively may be treated as adequate sentence. The plea for treating the sentence undergone as sufficient cannot be acceded to for, the same cannot be accepted as it will be too lenient sentence to be justified and it would mean virtually letting off the accused persons against whom the offences have been held proved by both the Court below and conviction and imposed is upheld by this Court. At the same time, certain aspects deserve consideration insofar as awarding sentence to the accused-convicts is concerned. In the facts of this case, the incident happened in the spur of the moment and the injuries are trivial in nature. Further, a period of almost 12 years have gone.
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7. For taking the aforesaid view of enhancing of fine imposed instead of requiring the accused persons to undergo the imprisonment any further, the following observations in the decision of this Court in Chandulal alias Maganlal Devchand Vs D.B. Chavda, Superintendent of Customs [1986 (1) GLR 500] may be notice which adopted the similar course in the facts of that case. In that case, the Court was dealing with the conviction and sentence recorded for the offences under the Customs Act, 1962. Taking into account the relevant factors for the purpose of modification of sentence, it was stated, "But in the given case, on peculiar facts as in the instant case, the sentence awarded should also be commensurate-with the gravity of the offence. The court is to take into consideration various factors such as the value of the goods smuggled, the nature and extent of the role played by the accused in the operation such as whether he was brain behind the same or whether he was a carrier or whether he was person who placed his premises at the disposal of the smugglers for storage of the goods. The Page 5 of 10 Uploaded by SAJ GEORGE(HC01069) on Wed Apr 16 2025 Downloaded on : Sat Apr 19 00:02:10 IST 2025 NEUTRAL CITATION R/CR.RA/335/2017 ORDER DATED: 08/04/2025 undefined age of the accused and the fact whether any previous conviction was proved against him are also relevant considerations. The delay in launching proceedings, the length of the period for which the accused was on bail would also be a relevant fact or having bearing on the question of sentence. This list is illustrative and not exhaustive........
Looking to the value of the goods seized it appears that it is not of a big amount. It is only of Rs.16,940/-. It also indicates that he is not a big smuggler. The fact remains that the said goods were also confiscated. There is no evidence on the record to show that the petitioner is previously convicted. Further the fact remains that the question of sending the petitioner to jail arise after 12 years after the commission of the offence when the accused is of 71 years of age as he was enlarged on a bail from the beginning. Under the circumstances, I think that this is a fit case in view of the peculiar circumstances of the case wherein it will not be conducive to the ends of justice to send the petitioner to jail after twelve years of the commission of the offence. In my opinion proper fine will meet the ends of justice, but the Page 6 of 10 Uploaded by SAJ GEORGE(HC01069) on Wed Apr 16 2025 Downloaded on : Sat Apr 19 00:02:10 IST 2025 NEUTRAL CITATION R/CR.RA/335/2017 ORDER DATED: 08/04/2025 undefined fine should be increased in lieu of remittance of imprisonment. The trial Court has imposed the sentence of one months R.I. and a fine of Rs.3000/- in default further R.I. for one month."
8. The decision in Chandulal alias Maganlal (supra), serve as a guiding precedent. The incident and the issue was trivial, which led to the offences which were product of particular passionate moments. Because of the passage of long time, the Court would be persuaded to desist from sending them back to jail as part of serving sentence. However, the law has to take its course and they be made to pay higher amount of fine and to suffer the sentence accordingly. It may be counter-productive to the ultimate object of sentencing in the administration of justice and may not be conducive to notion of justice if after more than two decades, the applicants-accused are to be sent back in jail in light of the circumstances highlighted in facts of the case. Having due regard to the factors and aspects stated and agitated by learned advocate for the Page 7 of 10 Uploaded by SAJ GEORGE(HC01069) on Wed Apr 16 2025 Downloaded on : Sat Apr 19 00:02:10 IST 2025 NEUTRAL CITATION R/CR.RA/335/2017 ORDER DATED: 08/04/2025 undefined applicant, it would be conducive to and accord with justice if the sentence already undergone by each of the accused is treated to be adequate in so far as the sentence of imprisonment imposed against each of them is concerned, however, at the same time, the sentence in respect of amount of fine payable shall stand modified by increasing the amount of fine. In the facts and circumstances of the case, it will be proper to impose fine more than imposed by the Trial Court in respect of each of the offence.
9. Accordingly, the judgment and order passed by the learned trial Court and confirmed by the learned Appellate Court recording conviction and sentence against each of the applicant-accused is hereby upheld and maintained. However, the sentence part is modified by directing that as far as the imprisonment is concerned, the period already undergone in jail by each of the accused persons upto their release on bail shall be treated as adequate and none of the accused would be Page 8 of 10 Uploaded by SAJ GEORGE(HC01069) on Wed Apr 16 2025 Downloaded on : Sat Apr 19 00:02:10 IST 2025 NEUTRAL CITATION R/CR.RA/335/2017 ORDER DATED: 08/04/2025 undefined required to undergo further imprisonment in respect of the conviction recorded against them.
10. Applicant Nos.1, 2 and 3 shall be required to pay additional fine of Rs.15,000/- (Rupees Fifteen Thousand only) in respect of his conviction under Section 323 and 324 of the Indian Penal Code.
11. The enhanced amount of fine as above as part of sentence shall be paid by each of the applicant within one month from the date of receipt of Certified Copy of this judgment and order. It is further clarified that except modification as above in respect of undergoing imprisonment, and the enhancement in the amount of fine payable as above, rest of the sentence, namely the default imprisonment clause shall remain unaltered. Therefore, if any of the applicants fails to pay the increased amount of fine within the time ordered as above, each of them will be liable to undergo the default imprisonment as provided in the judgment and order dated 30.1.2016 passed by learned 3rd Additional Civil Judge and Chief Judicial Page 9 of 10 Uploaded by SAJ GEORGE(HC01069) on Wed Apr 16 2025 Downloaded on : Sat Apr 19 00:02:10 IST 2025 NEUTRAL CITATION R/CR.RA/335/2017 ORDER DATED: 08/04/2025 undefined Magistrate Court, Jamnagar in Criminal Case No. 6785 of 2013 and confirmed by the judgment and order dated 12.1.2017 passed by the learned 5th Additional Sessions Judge, Jamnagar in Criminal Appeal No. 21 of 2016 and they shall be arrested and detained to be sent to custody.
12. The revision application is dismissed except as quantified hereinabove. The Rule is discharged subject to the above qualification and modification in the sentence part as above.
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