Gujarat High Court
State Of Gujarat vs Gobarbhai Nathubhai Baraiya on 3 February, 2025
NEUTRAL CITATION
R/CR.RA/454/2013 ORDER DATED: 03/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 454 of 2013
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STATE OF GUJARAT
Versus
GOBARBHAI NATHUBHAI BARAIYA
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Appearance:
MR HK PATEL, APP for the Applicant(s) No. 1
RULE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 03/02/2025
ORAL ORDER
[1.0] The petitioner - State by way of present Criminal Revision Application filed under Section 397 read with Section 401 of the Code of Criminal Procedure (for short "Code"), challenges the judgment and order dated 03.10.2012 passed by the learned Sessions Judge, Bhavnagar, in Criminal Appeal No.44 of 2012, whereby learned Sessions Judge dismissed the Appeal preferred under Section 377 of the Code, by the State, for enhancement of the sentence recorded by the learned Chief Judicial Magistrate, Bhavnagar, in Criminal Case No.6609 of 2008 dated 30.11.2011, whereby the petitioner was convicted and sentenced to suffer 4 years R.I. for the offences punishable under Sections 408, 420, 467, 468, 474 and 477/A of the Indian Penal Code and to suffer 2 years R.I. for the offences punishable under Sections 465 and 471 of the Indian Penal Code and also fined.
[2.0] Heard the submissions of the learned APP appearing for the Page 1 of 4 Uploaded by MR. AJAY C MENON(HC00939) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 23:09:42 IST 2025 NEUTRAL CITATION R/CR.RA/454/2013 ORDER DATED: 03/02/2025 undefined petitioner - State. None is present for the respondent - accused though Rule served.
[3.0] I have perused the impugned judgment and order rendered by the learned Sessions Judge. Unfortunately, learned Sessions Judge has not assigned any reason except reiterating laws laid down by the Hon'ble Apex Court in the cases between Bed Raj Vs. State of U.P. reported in AIR 1955 Supreme Court, 778, Ram Narain and others Vs. The State of U.P. reported in AIR 1971 Supreme Court 757 and Deb Narayan Halder Vs. Anushree Halder (Smt.) reported in 2004 SCC (Cri.) 164. It seems that learned Sessions Judge thought it fit not to interfere with the matter of sentence as it being a matter of discretion and he also further observed that the learned Chief Judicial Magistrate has appropriately appreciated the facts and evidence of the case and has properly exercised discretion vested with him, therefore, it does not require any interference by the Appellate Court. It seems that learned Sessions Judge has passed impugned judgment and order without recording any contentions raised by the petitioner State on facts and law. In para 8 of the impugned judgment and order, though learned Appellate Judge has recorded that he took into consideration the contentions raised in the memo of Appeal, but neither he pointed out any contentions in the impugned judgment and order nor discussed any of the contentions in the later part of the impugned judgment and order and thus all such contentions raised by the petitioner in the memo of the Appeal remained unanswered at the hands of the learned Sessions Judge. Learned Sessions Judge has not discussed any of the contentions so raised by the petitioner - State and Page 2 of 4 Uploaded by MR. AJAY C MENON(HC00939) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 23:09:42 IST 2025 NEUTRAL CITATION R/CR.RA/454/2013 ORDER DATED: 03/02/2025 undefined consequently, there is no finding about validity and legality of the various contentions raised by the petitioner in the memo of the Appeal. Under the circumstances, this Court would have no occasion to examine the legality or otherwise of the impugned judgment and order. Needless to say that it is legal duty of the Judicial Officer to record each contention raised by the litigant and to give findings thereon after appreciating evidence and after applying relevant principles of law with respect to the subject matter in question. It appears that learned Sessions Judge has passed impugned judgment and order in a very mechanical manner and upheld the conviction recorded against the respondent accused without considering the contentions raised by the petitioner as to whether State has made out the case of enhancement of sentence or not. Under the circumstances, learned Appellate Judge has not properly applied the principles of law laid down by the Hon'ble Apex Court. It is true that question of sentence is a matter of discretion and it is well settled that when discretion has been properly exercised along accepted judicial lines, an appellate court should not interfere to the detriment of an accused person. In order to apply principle of law laid down in the cases considered by him, it was duty of the learned Sessions Judge to consider the contentions raised by the State so as to say that learned trial Judge has exercised discretion in accordance with law and in view of the evidence on record. Nothing is stated by the learned Sessions Judge in the impugned judgment and order and therefore, this Court is required to interfere with the impugned judgment and order in exercise of the powers conferred under Sections 397 and 401 of the Code.
Page 3 of 4 Uploaded by MR. AJAY C MENON(HC00939) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 23:09:42 IST 2025 NEUTRAL CITATION R/CR.RA/454/2013 ORDER DATED: 03/02/2025 undefined
[4.0] Accordingly, the present petition is partly allowed. The impugned judgment and order dated 03.10.2012 passed by the learned Sessions Judge, Bhavnagar, in Criminal Appeal No.44 of 2012 is hereby quashed and set aside. Learned Sessions Judge, Bhavnagar, is directed to rehear the Appeal afresh on its merits after extending opportunity to both the sides. Rule is made absolute to the aforesaid extent. Registry is directed to send copy of the order to the concerned Sessions Court forthwith. Record & Proceedings be sent back forthwith.
(HASMUKH D. SUTHAR, J.) Ajay Page 4 of 4 Uploaded by MR. AJAY C MENON(HC00939) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 23:09:42 IST 2025