Hemantbhai Bipinbhai Sukhadiya ... vs State Of Gujarat

Gujarat High Court

Hemantbhai Bipinbhai Sukhadiya ... vs State Of Gujarat on 23 June, 2025

                                                                                                             NEUTRAL CITATION




                            R/SCR.A/7446/2025                                  ORDER DATED: 23/06/2025

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                        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                        R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 7446 of 2025
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                                HEMANTBHAI BIPINBHAI SUKHADIYA (MAKWANA)
                                                     Versus
                                          STATE OF GUJARAT & ANR.
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                       Appearance:
                       MR NIGAM D SONI(9314) for the Applicant(s) No. 1
                       MS SHRUTI PATHAK, APP for the Respondent(s) No. 1
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                         CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                                                           Date : 23/06/2025
                                                            ORAL ORDER

[1.0] By way of present petition under Articles 226 and 227 of the Constitution of India read with Section 528 of the BNSS, the petitioner has prayed for the following reliefs:

"(B) YOUR LORDSHIPS may be pleased to quash and set aside the Non-bailable warrant issued against the petitioner by the Learned 2nd Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Special Court (NI Act), Bhavnagar in Criminal Case No.3430 of 2015 vide judgment and order dated 24.10.2024 (Ann-A) and convert it into bailable warrant in the interest of justice;"

[2.0] Learned advocate for the petitioner has requested to convert the non-bailable warrant into bailable warrant and to exercise the jurisdiction under Section 528 of the BNSS. Further, he has vehemently argued that why the accused should go behind the bars in bailable offence and has requested to allow the present petition.

[3.0] At the outset it is worth to mention that the present Page 1 of 5 Uploaded by MR. AJAY C MENON(HC00939) on Mon Jun 23 2025 Downloaded on : Wed Jun 25 21:56:41 IST 2025 NEUTRAL CITATION R/SCR.A/7446/2025 ORDER DATED: 23/06/2025 undefined petitioner is convicted by learned 2nd Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Special Court (NI Act), Bhavnagar in Criminal Case No.3430 of 2015 filed under Section 138 of the Negotiable Instruments Act, 1881 and sentenced to undergo simple imprisonment for a period of one year and to pay fine of Rs.3,00,000/-. Further, as the petitioner - convict remained absent, the learned trial Court has been pleased to issue warrant of arrest against the accused to serve the sentence. As regards the submission of learned advocate for the petitioner that why the accused should go behind the bars, it is worth to mention that the present petitioner - accused is convicted after following due process of law and bail bond of the accused stood canceled and then the warrant of arrest against the accused to serve the sentence is issued. Hence, this is not a case where the Court has issued the warrant of arrest without following the due process of law. Once accused is convicted then the statutory remedy available to accused is to file statutory criminal appeal challenging the judgment of conviction and to file application under Section 389 of the CrPC for suspension of sentence pending the criminal appeal. Herein, without availing statutory remedy i.e. filing statutory appeal before the learned Sessions Judge, straightway the petitioner has approached this Court and insisted this Court to exercise jurisdiction under Section 528 of the BNSS. It is needless to say that the order issuing Non-Bailable Warrant passed by the learned trial Court is legal and valid one and under Section 418(2) of the CrPC, when the accused is sentenced to imprisonment and is not present in the Court, the Court has to issue warrant of arrest and the sentence shall commence from the date of his arrest. Hence, till the accused is not arrested, question of commencement of Page 2 of 5 Uploaded by MR. AJAY C MENON(HC00939) on Mon Jun 23 2025 Downloaded on : Wed Jun 25 21:56:41 IST 2025 NEUTRAL CITATION R/SCR.A/7446/2025 ORDER DATED: 23/06/2025 undefined sentence does not arise and hence, question does not arise to exercise power under Section 389 of the CrPC for suspension of sentence. Thus, it appears that the learned trial Court has committed no error in issuing Non-Bailable Warrant for the purpose of execution of sentence and in that event, if the petitioner wants to challenge any order passed by the learned trial Court then he has to avail statutory remedy rather than straightway approaching this Court under Articles 226 and 227 of the Constitution of India read with Section 528 of the BNSS as per the sweet will of the petitioner - accused.

[4.0] It is pertinent to note that while specific query is put to learned advocate for the petitioner that whether the petitioner is willing to appear before the concerned appellate Court alongwith his Advocate and file an application under Section 389 of the CrPC and request to suspend the sentence, learned advocate for the petitioner has not shown willingness and insisted to convert the Non-Bailable Warrant into Bailable Warrant. But considering the fact that the learned trial Court has not committed any error in issuing the warrant of arrest and statutory remedy is available to the petitioner, the order issuing warrant of arrest passed by the learned trial Court cannot be considered in any circumstances to be abuse of process of law.

[5.0] Section 528 of the BNSS (section 482 of the CrPC) reads as under:

"482. Saving of inherent powers of High Court.- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to Page 3 of 5 Uploaded by MR. AJAY C MENON(HC00939) on Mon Jun 23 2025 Downloaded on : Wed Jun 25 21:56:41 IST 2025 NEUTRAL CITATION R/SCR.A/7446/2025 ORDER DATED: 23/06/2025 undefined secure the ends of justice."

[6.0] Even, in the case of Hamida vs. Rashid alias Rasheed and Others reported in (2008)1 SCC 474, the Hon'ble Supreme Court has specifically explained the term 'alternative remedy' and held that power under Section 528 of the BNSS (Section 482 of the CrPC) has to be exercised sparingly with circumspection and in rare case and that too to correct patent illegalities or when some miscarriage of justice is done and has been pleased to deprecate the practice of High Courts in entertaining petitions under Section 528 of the BNSS (Section 482 of the CrPC) when there was an effective alternative remedy available. It is also observed that ends of justice would be better served if valuable time of the Court is spent in hearing those appeals rather than entertaining petitions under Section 528 of the BNSS (Section 482 of CrPC) at an interlocutory stage which are often filed with some oblique motive in order to circumvent the prescribed procedure. In paragraph 8 of the said decision, it has been observed and held as under:

"...It must be remembered that the inherent power is not to be resorted to if there is a specific provision in the Code or any other enactment for redress of the grievance of the aggrieved party. This power should not be exercised against an express bar of law engrafted in any other provision of the Criminal Procedure Code. This power cannot be exercised as against an express bar in some other enactment."

In view of the above, this Court is of the considered view that alternative remedy available to the petitioner is to file statutory appeal before the learned Sessions Judge and to file application under Section 389 of the CrPC and not a petition under Section 528 of the BNSS (Section 482 of the CrPC).

NEUTRAL CITATION R/SCR.A/7446/2025 ORDER DATED: 23/06/2025 undefined [6.1] It is also appropriate to refer to the decision dated 10.02.2022 of the coordinate Bench of this Court in the case of Istadev Projects Pvt. Ltd. Company Thro Maheshbhai Virabhai Patel vs. State of Gujarat [Special Criminal Application No.1704/2022]. In the said case, the learned advocate for the petitioner had tried to distinguish the provisions contained in Section 389(1) and 389(3) of the CrPC however, the coordinate Bench dismissed the said petition.

[7.0] In wake of aforesaid discussion, present petition stands dismissed in limine with a liberty in favor of the petitioner to avail appropriate statutory remedy before the appropriate Forum. It is made clear that this Court has not gone into the merits of the case.

(HASMUKH D. SUTHAR, J.) Ajay Page 5 of 5 Uploaded by MR. AJAY C MENON(HC00939) on Mon Jun 23 2025 Downloaded on : Wed Jun 25 21:56:41 IST 2025