Gujarat High Court
Vimalbhai Kanabhai Chudasma vs State Of Gujarat on 30 January, 2025
NEUTRAL CITATION
R/CR.RA/1908/2024 ORDER DATED: 30/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 1908 of 2024
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VIMALBHAI KANABHAI CHUDASMA
Versus
STATE OF GUJARAT
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Appearance:
MR BM MANGUKIYA(437) for the Applicant(s) No. 1
MS BELA A PRAJAPATI(1946) for the Applicant(s) No. 1
MR MR HARDIK DAVE, Public Prosecutor for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 30/01/2025
ORAL ORDER
1. Rule. Learned PP waives service of notice of Rule for the respondent-State.
2. By way of present criminal revision application, the applicant has assailed his conviction and sentence dated 07.02.2023 recorded by the learned Additional Judicial Magistrate First Class, Maliya Hatina in Criminal Case No.203 of 2011 whereby the applicant - accused is convicted for the offence under Section under Section 323 read with Section 149 of the IPC and sentence to undergo simple imprisonment of 6 months and also convicted under Section 147 of the IPC and sentence to undergo simple imprisonment of 6 months and further directed both the sentences will run concurrently and also assailed the order dated 11.12.2024 recorded by the learned 2nd Additional Sessions Judge, Junagadh Camp at Kesod (Exhibit-6) in Criminal Appeal No.12 of 2023.
3. Heard Mr. B.M. Mangukiya, learned advocate for the applicant and Mr. Hardik Dave, learned Public Prosecutor appearing for the respondent-State.
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4. Mr. B.M. Mangukiya, learned advocate appearing for the applicant that the applicant has been in public life since 2003. Before marriage, the petitioner was elected as Councilor of Chorwad Municipality from Ward No. 3 and has continuously represented the ward since then. The petitioner held various positions, including Chairman of the Construction Committee (2003-2005), Chairman of the Executive Committee (2005-2008), Leader of Opposition (2011-2013), and President of Chorwad Municipality (2013-2015, 2015-2018). Currently, the petitioner is a sitting Councillor, with the term ending on March 25, 2023. The petitioner, a sitting MLA from 90-Gir Somnath Constituency, was first elected in the 2017 Gujarat Legislative Assembly elections as an Indian National Congress candidate and re- elected in 2022. If the conviction is not stayed, the petitioner faces disqualification and will be barred from contesting future elections, causing irreparable loss.
4.1 Further, learned advocate for the applicant, submits that the complainant filed a criminal case against the applicant, following which the learned Judicial Magistrate, First Class, Maliya Hatina, passed a judgment and order of conviction in Criminal Case No. 203 of 2011 on 07.02.2023. The Judicial Magistrate convicted the applicant, along with co-accused, under Section 323 read with Section 149 of the Indian Penal Code, 1860, sentencing them to six months of simple imprisonment. Additionally, the applicant and co-accused were convicted under Section 147 of the IPC, 1860, and sentenced to another six months of simple imprisonment, with both sentences to run concurrently. The applicant challenged this order through Page 2 of 9 Uploaded by ALI ISTAYAK(HC01093) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 04:47:00 IST 2025 NEUTRAL CITATION R/CR.RA/1908/2024 ORDER DATED: 30/01/2025 undefined Criminal Appeal No. 12 of 2023 on various grounds and filed an application under Section 389 of the Cr.P.C. (Exhibits 5 and 6) for suspension of sentence and conviction before the Additional Sessions Judge, Junagadh Camp at Kesod. This application remained pending along with the main appeal. Meanwhile, the complainant also challenged the order through Criminal Appeal No. 15 of 2023. Subsequently, the applicant requested the learned Sessions Judge to stay the conviction, but the application was dismissed. The applicant then approached this Court through Criminal Revision Application No. 273 of 2023, where a Coordinate Bench of this Court quashed and set aside the order of the Additional Sessions Judge, Junagadh Camp at Kesod, directing the pending application for suspension of conviction to be decided within four weeks from the date of receipt of the Court's order. Pursuant to this direction, on 11.12.2024, the learned Additional Sessions Judge dismissed the application below Exhibit 6 with the following direction:
"2. However, Mr. Vimal Kanabhai Chudasama is entitled to contest the ensuing election of Chorwad Municipality for reasons assigned above."
4.3 Further, it is submitted that although the learned Sessions Judge opined, after verifying the record, that the applicant has a strong case, the Court considered whether the appellant would suffer irreparable loss in deciding the stay of conviction. The Court further reasoned that had the appellant been convicted for more than six months, it would have been a fit case for suspension of conviction. Furthermore, the alleged offence is not of a serious nature. Despite the reasons assigned by the learned Sessions Judge being in favor of the applicant, the application Page 3 of 9 Uploaded by ALI ISTAYAK(HC01093) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 04:47:00 IST 2025 NEUTRAL CITATION R/CR.RA/1908/2024 ORDER DATED: 30/01/2025 undefined was rejected solely because the conviction period is less than six months, which does not amount to disqualification under Section 11(2) of the Gujarat Municipality Act. Therefore, the learned advocate for the applicant has requested that the present application be allowed. He has relied on the judgment passed by the Hon'ble Aepx Court in the case of Hardik Bharatbhai Patel v. The State of Gujarat passed in Criminal Appeal No.629 of 2022.
5. Mr. Hardik Dave, learned Public Prosecutor appearing for the respondent State, has strongly opposed the present application, stating that the Sessions Judge rightly rejected the application. However, the operative part of the order, which inadvertently allows the applicant to contest the election, has led the State to prefer a Revision Application for the limited purpose of addressing this issue State has preferred Revision Application. He further submitted that the applicant is not entitled for the suspension of conviction as a matter of right. There are specific criteria for suspension of conviction, and the applicant must show and establish valid reasons justifying the need for suspension. He contended that the Sessions Judge did not commit any error while exercising jurisdiction under Section 389 of the Cr.P.C., and no irreversible consequences of non- suspension have been demonstrated. The applicant has also failed to provide any substantial grounds for suspension. Furthermore, despite being a sitting MLA and holding a public office, the applicant has committed the said offence, and other offences have also been registered against him. Considering these facts, the learned Public Prosecutor has requested that the present application be dismissed.
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6. Having heard the learned advocates for the respective parties and having gone the documents on record, it is undisputed and admitted fact that the applicant is committed offence under Section 323, 147 IPC and for this convicted and sentenced to undergo simple imprisonment of 6 months and alleged offence is not in nature of moral turpitude. Now coming back to the fact that the Court has to consider while considering the application for passing the order of suspension and order of conviction as to whether this is a fit case to exercise the jurisdiction of suspension of sentence of conviction. The suspension of conviction is a relief and not a right. Although Hon'ble Apex Court has widen the scope of Section 389 of the Cr.P.C. The time and again Hon'ble Apex Court maintain the protion. The Hon'ble Apex Court has clarified an order granting the conviction is not a Rule but it is an exception to be resorted to the rare case depending on the facts of the case. Hon'ble Apex Court has not specifically laid down any set of guidelines of the test to determined as to what will constitute a fit case for providing the relief. Keeping in mind above proposition of law and perusing the order of learned Sessions Judge wherein it reveals that, the learned Sessions Judge has clearly observed in para 9 as under:
9. "xxxx So in my view, the appellant has good case. However, for stay of conviction Court is to see whether the appellant would suffer irreparable loss or not? Had the appellant convicted for more-than 6 months this would have fit case to suspend conviction. Moreover the appellant is convicted u/S. 323, which is compoundable offence and is not considered 'serious offence. The appellant is representative of people of his municipality ward as well as constituency of Veraval. As per the certificate of Crime writer of Chorwad Police Station, presently, Page 5 of 9 Uploaded by ALI ISTAYAK(HC01093) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 04:47:00 IST 2025 NEUTRAL CITATION R/CR.RA/1908/2024 ORDER DATED: 30/01/2025 undefined except this case there is no Criminal case pending against the appellant. The Ld. Trial Judge didn't assign any reason for not offering probation to the accused which he ought to have done.
So also the appellant would have good case. So far as aspect of 'irreparable loss' is concerned in my view the appellant is still hold qualification to be a candidate as councilor in Chorwad Municipality. The appellant has Been Conv sentence for Six months S.I. So if we see section 11(1) (b) of the Gujarat Municipality Act it provides that no person may be a councilor who has been convicted of any other offence and sentence to imprisonment for not less than 6 months until elepse of Four years from the date of Order. The term 'not less than 6 months' has both literary and mathematically senses. In mathematics, it is said as 6 but in literary sense 'not less than 6 months' means something more than 6, say seven or eight or any quantity but out of range of six. Not less than 6 months means above 6 months. In interpretation of statues the Court has to considered literary meaning and not mathematical meaning. Therefore, in my view, in-spite of the appellant is convicted and sentence for Six months he would be entitled to contest the municipality election as candidate and he would not incur any disqualification described under section 11 of the Gujarat Municipality Act. In case the conviction order is passed and he was sentence for more than 6 months this would be case for irreparable injury to the appellant. So in this case appellant's rights would not be affected. The appellant Mr. Vimal Kanabhai Chudasama is entitled to contest ensuing election of Chorwad Municipality area and the appellant would not suffer irreparable loss xxx."
7. Considering the aforesaid findings that " so in my view, the appellant has good case. However, for stay of conviction Court is to see whether the appellant would suffer irreparable loss or not? Had the appellant convicted for more-than 6 months this would have fit case to suspend conviction.The appellant is representative of people of his municipality ward as well as constituency of Veraval. As per the certificate of Crime writer of Chorwad Police Station, presently, except this case there is no Criminal case pending against the appellant. The Ld. Trial Judge didn't assign any reason for not offering probation to the Page 6 of 9 Uploaded by ALI ISTAYAK(HC01093) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 04:47:00 IST 2025 NEUTRAL CITATION R/CR.RA/1908/2024 ORDER DATED: 30/01/2025 undefined accused which he ought to have done. So also the appellant would have good case. So far as aspect of 'irreparable loss' is concerned in my view the appellant is still hold qualification to be a candidate as councilor in Chorwad Municipality.n case the conviction order is passed and he was sentence for more than 6 months this would be case for irreparable injury to the appellant. So in this case appellant's rights would not be affected", once the learned Sessions Judge concluded that there was a prima facie good case to stay the conviction, the Court ought have to pass an order to stay the conviction. However, the Court did not do so, merely on the ground that the applicant was not convicted for more than six months, and if he had been convicted for more than six months, it would have been a fit case to suspend the conviction. I am of the considered view that this observation goes against the settled principles of law. Once the Sessions Judge concluded, after examining and scanning the the evidence presented before the learned trial Court, that this is a fit case for suspending the conviction in such circumstances, the learned Sessions Judge, ought to have passed an order to suspend the conviction and allowed the application. However, he has rejected the application up to that extent, the learned trial Court has committed an error.
8. In view of the above, once the learned Sessions Judge concludes that the applicant has successfully made out a case for suspension of conviction during the pendency of the appeal, the learned Sessions Court is required to exercise the jurisdiction to suspend the sentence of conviction. If the conviction is not suspended, it may cause irreparable harm to the applicant, which cannot be undone even if he ultimately Page 7 of 9 Uploaded by ALI ISTAYAK(HC01093) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 04:47:00 IST 2025 NEUTRAL CITATION R/CR.RA/1908/2024 ORDER DATED: 30/01/2025 undefined succeeds in the appeal. Furthermore, the offence is not of a nature involving moral turpitude, and the applicant is a sitting MLA with no pending criminal cases against him. Although the State has pointed out that other criminal cases were registered against him, the applicant has been acquitted in all such cases. Since he has been acquitted, no disqualification is attached to him.
9. In view of the law laid down by the Hon'ble Apex Court in Navjot Singh Sidhu v. State of Punjab , (2007) 2 SCC 754, and Ravikant S. Patil v. S.S. Bangali , (2007) 1 SCC 673, once the Sessions Judge concludes that the applicant has a strong case for suspension of conviction, is in public life as a sitting MLA, and that non-suspension would lead to injustice and irreversible consequences particularly if he intends to contest elections or if it adversely affects him in any other way then the conviction ought have to suspend. However, despite recording reasons and expressing satisfaction in the operative part of the order, the learned Sessions Judge has passed an order to dismiss the application, which is contrary to settled legal principles of law and perverse. Therefore, interference is warranted, and the present application deserves consideration.
10. Resultantly, this revision application is allowed. The order of conviction dated 07.02.2023 passed by the learned Additional Judicial Magistrate, First Class, Maliya Hatina, in Criminal Case No. 203 of 2011 is hereby stayed till final outcome of the Criminal Appeal No.12 of 2023. (i) The applicant-accused is directed not to take undue advantage of this order or prolong the Page 8 of 9 Uploaded by ALI ISTAYAK(HC01093) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 04:47:00 IST 2025 NEUTRAL CITATION R/CR.RA/1908/2024 ORDER DATED: 30/01/2025 undefined hearing of the appeal; (ii) The Trial Court shall decide the appeal independently, without being influenced by the observations made in this order.
11. Regarding the State's Revision Application concerning eligibility to contest the election under the Municipality Act, the reason assigned for this is based on the direction given in the operative part of the order, which has already been challenged. Therefore, it would not be appropriate at this stage to further address the observation concerning the Gujarat Municipality Act.
12. Rule is made absolute accordingly to the aforesaid extent. Direct service is permitted.
(HASMUKH D. SUTHAR,J) ALI Page 9 of 9 Uploaded by ALI ISTAYAK(HC01093) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 04:47:00 IST 2025