Gujarat High Court
Jayrambhai Dharamsibhai Dabhi vs State Of Gujarat on 21 December, 2022
Bench: Ilesh J. Vora
R/SCR.A/13413/2022 ORDER DATED: 21/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 13413 of 2022
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JAYRAMBHAI DHARAMSIBHAI DABHI
Versus
STATE OF GUJARAT
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Appearance:
MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MOXA THAKKAR APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 21/12/2022
ORAL ORDER
1. Heard Mr. Ashish Dagli, learned advocate for the
applicant.
2. This application is directed against the order dated
18.10.2022 below Exh.193 in Criminal Case No.3884
of 2016, passed by the learned 8 th Additional Chief
Judicial Magistrate Court, Rajkot, whereby the
application was filed under Section 389(3) of Code of
Criminal Procedure, 1973 came to be rejected mainly
on the ground that the applicant did not remain
present, despite the direction issued by the High
Court.
R/SCR.A/13413/2022 ORDER DATED: 21/12/2022
3. Mr. Dagli, learned advocate for the applicant
submitted that the application Exh.193 was filed by
the applicant and he was very much present with his
advocate before the Court. Thus, learned Trial Court,
taking technical view, rejected the application which
is contrary to the settled principle of law and utter
disregard to the directions given by the High Court.
4. Having regard to the facts and circumstances of
present case, it appears that the Trial Court, vide
judgment and order dated 28.04.2022, convicted the
applicant herein for the offence punishable under
Section 138 of the Negotiable Instruments Act and at
the relevant time, accused was not present and NBW
for execution of the sentence was issued by the Trial
Court. The applicant - accused filed petition before
this Court, inter alia praying that he may be
permitted to file application under Section 389(3) of
Cr.P.C. for provisional bail to enable him to prefer an
appeal before the Sessions Court against the
conviction and sentence. The Coordinate Bench of
this Court granted permission as prayed for and
directed the applicant to remain personally present
in the Court.
5. In the aforesaid facts, when application moved by the
applicant, the learned Trial Court while rejecting the
R/SCR.A/13413/2022 ORDER DATED: 21/12/2022
application observed that the applicant remained
absent for further process and therefore, no order is
required to be passed.
6. Having regard to the facts and circumstances of
present case, it appears that pursuant to the order
passed by the Coordinate Bench of this Court, the
applicant applied for provisional bail as contemplated
under Section 389(3) of Cr.P.C. It is recorded by the
Trial Court that within stipulated time, the application
is not filed.
7. Without entering into merits of the case, this Court is
of the considered opinion that when application is
filed pursuant to the directions issued by the
Coordinate Bench of this Court, the learned Trial
Court could not have rejected the application on
technical grounds.
8. For the foregoing reasons and considering the
peculiar facts and circumstances of present case, the
applicant is directed to appear in person before the
learned Trial Court along with his advocate, within a
period of three weeks from the date of receipt of
this order, and shall file a fresh application under
Section 389(3) of the Cr.P.C. for provisional bail. As
and when such application is filed, the Trial Court
R/SCR.A/13413/2022 ORDER DATED: 21/12/2022
concerned shall pass appropriate order in accordance
with law. If he fails to appear, then the Trial Court
concerned shall pass necessary order for execution
of the conviction and sentence.
9. In view of the aforesaid terms, the application stands
disposed of accordingly. Direct Service is permitted.
(ILESH J. VORA,J)
P.S. JOSHI
