Gujarat High Court
Firozbhai Jamalbhai Ghanchi vs State Of Gujarat on 13 October, 2022
Bench: Niral R. Mehta
R/SCR.A/10056/2022 ORDER DATED: 13/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 10056 of 2022
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FIROZBHAI JAMALBHAI GHANCHI
Versus
STATE OF GUJARAT
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Appearance:
MR DHRUV K DAVE(6928) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS MOXA THAKKAR, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 13/10/2022
ORAL ORDER
1. By way of the present petition, the petitioner seeks
to convert non-bailable warrant issued by learned 15th
Additional Chief Judicial Magistrate, Vadodara vide order
dated 30th July, 2022 in Criminal Case No.20748 of 2019
into bailable warrant.
2. Facts of the case, as can be gathered from the
material produced on record, the respondent No.2 - original
complainant filed a private complaint being Criminal Case
No.20748 of 2019 under the provisions of the Negotiable
Instruments Act, 1881 (for short 'the Act') on account of
dishonour of Cheque issued by the petitioner.
2.1 After hearing the parties, the said Criminal Case
No.20748 of 2019 came to be disposed of by the learned 15 th
Additional Chief Judicial Magistrate, Vadodara vide order
dated 30th July, 2022 and the petitioner was convicted. At the
time of passing of the judgment dated 30 th July, 2022, the
R/SCR.A/10056/2022 ORDER DATED: 13/10/2022
learned trial court has issued non-bailable warrant against the
petitioner.
3. Heard learned advocate Mr.D.K. Dave for the
petitioner and Learned Additional Public Prosecutor Ms.Moxa
Thakkar for the respondent - State.
4. Learned advocate for the petitioner submitted that
the impugned judgment and order dated 30 th July, 20222 qua
issuance of non-bailable warrant is concerned, the same is
illegal and against the provision of law. According to Mr.Dave,
the learned Magistrate, at least, ought to have issued bailable
warrant upon the petitioner to secure his presence. Mr.Dave
further submitted that straightaway, issuance of non-bailable
warrant, that too after conclusion of the trial proceedings, is
completely unjustified and is against the interest of justice.
Learned counsel also submitted that preferring an appeal
against the order passed of conviction is a statutory right
available to the petitioner. However, to avail the remedy
under its statutory rights, the petitioner is left with no option,
but to surrender himself to the jail authority pursuant to the
non-bailable warrant issued by the trial court and that would
amount to gross violation of Article 21 of the Constitution of
India. Mr.Dave further submitted that at least, this Court may
grant limited indulgence by converting non-bailable warrant
into bailable warrant, so that the petitioner can approach the
learned Magistrate by way of an application under Section
389(3) of the Cr.P.C. for provisional bail so as to enable the
petitioner to approach the Sessions Court by way of an appeal
against the conviction and sentence.
R/SCR.A/10056/2022 ORDER DATED: 13/10/2022
4.1 To substantiate this contention, learned advocate
heavily relied upon the decision of the Coordinate Bench of
this Court rendered in Special Criminal Application
(Quashing) No.9113 of 2016 decided on 22nd February,
2017.
4.2 Learned advocate for the petitioner tenders
undertaking dated 13th October, 2022 stating inter alia that
the petitioner undertakes to remain present before the
learned trial court as well as appellate court and coordinate
with the proceedings.
4.3 By making above submissions, Mr.Dave urged this
Court to allow the present petition, as prayed for
4.4 Learned Additional Public Prosecutor has
vehemently opposed the prayer of the petitioner and
requested this Court to dismiss the present petition.
5. I have heard the learned counsel appearing for the
respective parties and gone through the material produced on
record in detail. No other and/or further submissions have
been made, except what are stated herein-above.
6. At the outset, it is required to be noted that the
issue involved in this petition is no more res integra and
squarely covered by the decision of the Coordinate Bench of
this Court rendered in Special Criminal Application
(Quashing) No.9113 of 2016, as referred to above, in
somewhat similar set of facts. The Coordinate Bench of this
R/SCR.A/10056/2022 ORDER DATED: 13/10/2022
Court has, after considering the decision rendered by the
Division Bench in the case of Sharad Jethalal Savla v. State
of Gujarat [Criminal Misc. Application No.19862 of 2015
decided on 14th November, 2016] held as under :
"7. I am inclined to give one opportunity
to the applicants herein to appear before the
learned 4th Additional Chief Judicial
Magistrate, Vadodara in person with their
advocates. On the day and date the
applicants herein appear before the learned
Magistrate, it will be open for them to file an
application under Section 389(3) of the Cr.P.C.
for provisional bail to enable them to prefer a
criminal appeal before the Sessions Court
against the conviction and sentence. The
criminal appeal before the Sessions Court
could have been registered only after an
appropriate order under Section 389(3) of the
Cr.P.C. was passed by the trial Court.
8. In any view of the matter, the non-
bailable warrant is converted into a bailable
warrant of the sum of Rs.10,000/- (Rupees Ten
Thousand only). The applicants are directed to
appear before the Court concerned within a
period of one week from today and shall furnish
a bail of Rs.10,000/- each. If any such application
is filed under Section 389(3) of the Cr.P.C.,
the Court concerned shall pass
appropriate orders in accordance with law."
7. In view of the aforesaid, this Court is inclined to
pass following directions.
(a) The petitioner shall approach the learned
trial court in person with his advocate within a
period of one week from the date of receipt of
R/SCR.A/10056/2022 ORDER DATED: 13/10/2022
writ of this order;
(b) It will be open for the petitioner on the day
and date he appears before the learned trial
court in person with his advocate to file an
application under Section 389(3) of the Code of
Criminal Procedure, 1973 for provisional bail;
(c) The non-bailable warrant is hereby
converted into bailable warrant for a sum
Rs.10,000/- (Rupees Ten Thousand only);
(d) If any such application is filed under
Section 389(3) of the Code, 1973, the court
concerned shall pass appropriate orders in
accordance with law;
(e) The petitioner shall scrupulously follow the
undertaking dated 13th October, 2022 filed by
him before this Court.
8. In view of the aforesaid observations and
directions, the present petition stands disposed of. Rule is
made absolute to the aforesaid extent.
Direct service is permitted.
(NIRAL R. MEHTA,J)
ANUP
