Samir Mustufamiya Malek vs State Of Gujarat
2022 Latest Caselaw 9197 Guj

     R/SCR.A/10796/2022                            ORDER DATED: 18/10/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CRIMINAL APPLICATION NO. 10796 of 2022
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                          SAMIR MUSTUFAMIYA MALEK
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR SS SAIYED(3690) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR JK SHAH, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA

                               Date : 18/10/2022

                                ORAL ORDER

1. Rule returnable forthwith. Learned Additional Public Prosecutor waives service of notice of Rule on behalf of respondent No.1 - State.

2. By way of this petition, the petitioner - original accused has prayed for following reliefs :

"(A) Your Lordship be pleased to admit and allow this petition in the interest of justice;

(B) Your Lordship be pleased to direct the Ld. 4 th Additional Chief Judicial Magistrate, Anand Court, to accept the application under Section 389(3) of the Code of Criminal Procedure and decide the application accordance with law in the interest of justice.

(C) Your Lordship be pleased to convert the Non-

Bailable Warrant issued against the present petitioner by the Ld. 4th Additional Chief Judicial Magistrate, Anand in Criminal Case No.1094 of 2021, on dated 21.9.2022 into Bailable Warrant in the interest of justice;

R/SCR.A/10796/2022 ORDER DATED: 18/10/2022

(D) Your Lordships be pleased to pending hearing and final disposal of the present petition, may be pleased to stay proceedings pursuant to the implementation of the Non-Bailable Warrant issued by the Ld. 4th Additional Chief Judicial Magistrate, Anand in Criminal Case No.1094 of 2021, on dated 21.9.2022 against the present petitioner in the interest of justice;

(E) Your Lordship be pleased to grant such other and further relief/s as may be deemed proper in the facts of the case in the interest of justice;"

3. Facts of the case, as can be gathered from the material produced on record, are as under :

3.1 The respondent No.2 - original complainant filed a private complaint being Criminal Case No.1094 of 2021 under the provisions of the Negotiable Instruments Act, 1881 (for short 'the Act') on account of dishonour of Cheque of Rs.2,48,400/- issued by the petitioner.

3.2 Upon summons being issued to the petitioner, the petitioner engaged a lawyer. It appears that the petitioner, though was given more than sufficient opportunities, did not remain present before the trial court concerned and though the case was put up for cross-examination of respondent No.2, nobody remained present and the right to cross-examine was closed on 9.12.2021.

3.3 Thereafter, the advocate of the petitioner gave an application to open the right to cross-examine, which came to be rejected by the trial court.

R/SCR.A/10796/2022 ORDER DATED: 18/10/2022

3.4 Felt aggrieved, the petitioner preferred Criminal Revision Application No.63 of 2022 before the appellate court which is pending adjudication.

3.5 The learned 4th Additional Chief Judicial Magistrate, Anand vide judgment and order dated 21.9.2022, convicted the petitioner for the offences under Section 138 of the Act and imposed one year simple imprisonment and further directed the petitioner to pay a sum of Rs.4,96,000/- to the complainant towards compensation and in default thereof, to undergo 6 months simple imprisonment. The learned Magistrate further issued Non-Bailable Warrant under Section 70 of the Cr.P.C. as the petitioner was not remained present at the time when the judgment was pronounced.

3.6 The petitioner approached the concerned appellate court at Anand by preferring Criminal Appeal along with an application for suspension of sentence under Section 389 of the Cr.P.C. However, the registration of the same came to be refused by the appellate court concerned, as the petitioner has not surrendered himself to jail authority pursuant to the issuance of Non-Bailable Warrant by the trial court.

3.7 Being aggrieved and dissatisfied by the aforesaid, the petitioner is before this Court by way of present petition.

4. I have heard Mr.S.S. Saiyed, learned counsel for the petitioner and Mr.J.K. Shah, learned Additional Public Prosecutor for the respondent No.1 - State.

R/SCR.A/10796/2022 ORDER DATED: 18/10/2022

5. Mr.S.S. Saiyed, learned counsel for the petitioner, submitted that the impugned judgment and order dated 21.9.2022 qua issuance of Non-Bailable Warrant is concerned, the same is illegal and against the provision of law and against the provision of law. According to Mr.Saiyed, the learned Magistrate, at least, ought to have issued Bailable Warrant upon the petitioner during the trial proceedings, more particularly when the petitioner and his Advocate was not remaining present. Mr.Saiyed 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.Saiyed 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. To substantiate this contention, Mr.Saiyed, learned counsel, heavily relied upon the decision of the Coordinate Bench of this Court rendered in Special Criminal Application (Quashing) No.9112 of 2016, decided on 22.2.2017.

R/SCR.A/10796/2022 ORDER DATED: 18/10/2022

5.1 Mr.Saiyed, learned counsel, submitted that the petitioner has also filed an undertaking, stating that he will remain present before the trial court and abide by the terms and conditions of the undertaking.

5.2 By making above submissions, Mr.Saiyed urged this Court to allow the present petition, as prayed for.

6. Per contra, Mr.J.K. Shah, learned APP appearing for respondent No.1 - State vehemently opposed the petition, contending that all throughout, the present petitioner had not attended the proceedings at the trial court and also not availed the alternative remedy provided under Section 389(3) of the Cr.P.C. Thus, the petitioner was all throughout negligent and/or ignored the criminal proceedings and, therefore, this Court may not entertain this petition. Mr.Shah further submitted that there is no iota of evidence so as to suggest that the present petitioner has approached the appellate court concerned and in turn, the appellate court has refused to entertain or to register the statutory appeal. Mr.Shah further submitted that even today, it is open for the petitioner to approach the trial court for filing an application under Section 389(3) of the Cr.P.C. Thus, this Court may not require to give any direction in that regard. However, Mr.Shah could not dispute the proposition of law laid down by the Coordinate Bench of this Court in SCR.A No.9112 of 2016, as referred to above.

6.1 By making above submissions, Mr.Shah urged this Court to dismiss the petition.

R/SCR.A/10796/2022 ORDER DATED: 18/10/2022

7. I have heard the learned counsel appearing for the respective parties and gone through the material produced on record in detail. No other and further submissions have been made, except what are stated herein-above.

8. 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.9112 of 2016, decided on 22.2.2017, as referred to above, in somewhat similar set of facts. The Coordinate Bench of this Court has, after considering the decision rendered by the Division Bench in the case of Sharad Jethalal Savla v. State of Gujarat & Ors. [Criminal Misc. Application No.19862 of 2015, decided on 14.11.2016] 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 nonbailable 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

R/SCR.A/10796/2022 ORDER DATED: 18/10/2022

application is filed under Section 389(3) of the Cr.P.C., the Court concerned shall pass appropriate orders in accordance with law."

9. In view of the aforesaid, this Court is inclined to pass following directions :

(1) The petitioner shall approach the learned Learned 4th Additional Chief Judicial Magistrate, Anand in person with his Advocate.

(2) It will be open for him on the day and date he appears before the learned learned 4th Additional Chief Judicial Magistrate, Anand to file an application under Section 389(3) of the Cr.P.C. for provisional bail.

(3) The Non-Bailable Warrant is hereby converted into Bailable Warrant for a sum Rs.10,000/- (Rupees Ten Thousand only). The petitioner is directed to appear before the concerned Court within a period of one week from the date of receipt of writ of this Court and shall furnish a bond of Rs.10,000/-.

(4) 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.

(5) Non-adherence of the undertaking dated 17.10.2022 filed before this Court shall follow the consequences.

10. With the above, present petition stands disposed of. Rule

R/SCR.A/10796/2022 ORDER DATED: 18/10/2022

is made absolute to the aforesaid extent. Direct service is permitted.

(NIRAL R. MEHTA,J) V.J. SATWARA