Pinalben Sandeepkumar Patel vs State Of Gujarat
2022 Latest Caselaw 8617 Guj

     R/SCR.A/9991/2022                           ORDER DATED: 29/09/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 9991 of 2022
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                         PINALBEN SANDEEPKUMAR PATEL
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MS JAYSHREE ACHARYA(5160) for the Applicant(s) No. 1
MS. BHAVNA D ACHARYA(6406) 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 : 29/09/2022

                               ORAL ORDER

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

"(A) Be pleased to Admit and allow this petition;

(B) Be pleased to issue appropriate writ order or direction to quash and set aside the impugned order dated 30.08.2022 passed by the Ld. 11 th Addl. Chief Judicial Magistrate Vadodara and consequently release the petitioner on bail by suspending the sentence passed vide Judgment and Order of conviction dated 10.08.2022 in Criminal Case No.31620 of 2018 passed by the Ld. Addl. Chief Judicial Magistrate, Vadodara on appropriate terms and conditions in the interest of justice;

(C) Pending admission, final hearing and disposal of this petition, Stay the execution of Warrant issued vide Judgment and Order of conviction dated 10.08.2022 passed by the Addl. Chief Judicial Magistrate, Vadodara And further be pleased to suspend the sentence u/s. 389 of Cr. PC and release the petitioner on bail on such

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terms and conditions as this Hon'ble Court may deem fit, and/or

(D) Be pleased to Grant such other and further relief as thought fit in the interest of justice."

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

2.1 The respondent No.2 - original complainant filed a private complaint being Criminal Case No.31620 of 2018 under the provisions of the Negotiable Instruments Act, 1881 (for short 'the Act') on account of dishonour of Cheque issued by the petitioners.

2.2 After hearing the parties, learned 11 th Additional Chief Judicial Magistrate, Vadodara vide order dated 10 th August, 2022 convicted the present petitioner for the offence punishable under Section 138 of the N.I. Act and sentenced to undergo one year simple imprisonment. It was further ordered to the petitioner to pay Rs.65,000/- by way of compensation to the complainant under Section 357 of the Cr.P.C. within 60 days from the receipt of the judgment and order and in default of payment of compensation, petitioner was ordered to undergo simple imprisonment for a further period of one month.

2.3 When the said judgment and order was pronounced on 10th August, 2022, as the petitioner was not present in the Court, warrant was ordered to be issued against the petitioner herein.

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2.4 Being aggrieved by and dissatisfied with the said order dated 10th August, 2022, as the petitioner wants to prefer appeal and as warrant was issued against the petitioner, she filed an application under Section 389 before learned Additional Chief Judicial Magistrate, Vadodara with a prayer to release her on bail so as to enable her to prefer appeal. However, the said application came to be rejected vide order dated 30th August, 2022 as on the said date also the petitioner - accused was not present before the Court.

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

4. I have heard Ms.Acharya, learned counsel for the petitioner and Ms.Moxa Thakkar, learned Additional Public Prosecutor for the respondent No.1 - State.

5. Ms.Acharya, learned counsel for the petitioner, submitted that the impugned judgment and order dated 10 th August, 2022 qua issuance of Non-Bailable Warrant is concerned, the same is illegal and against the provision of law. Ms.Acharya 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 herself because of Non- Bailable Warrant issued by the trial court and that would

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amount to gross violation of Article 21 of the Constitution of India. Ms.Acnarya further submitted that this Court, at least, 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, Ms.Acharya, 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 22nd February, 2017.

5.1 By making above submissions, Ms.Acharya urged this Court to allow the present petition, as prayed for.

6. Per contra, Learned Additional Public Prosecutor appears for the respondent - State vehemently opposed the petition contending 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, Ms.Thakkar, Learned Additional Public Prosecutor, could not dispute the proposition of law laid down by the Coordinate Bench of this Court in Special Criminal Application No.9112 of 2016, as referred to above.

6.1 By making above submissions, Ms.Thakkar urged this Court to dismiss the petition.

7. I have heard the learned counsel appearing for the

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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 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 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 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 application is filed under Section 389(3) of the Cr.P.C., the Court concerned shall pass

R/SCR.A/9991/2022 ORDER DATED: 29/09/2022

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 concerned learned Additional Chief Judicial Magistrate, Vadodara in person with her advocate;

(2) It will be open for the petitioner on the day and date she appear before the Additional Chief Judicial Magistrate, Vadodara to file an application under Section 389(3) of the Cr.P.C. for provisional bail;

(3) 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 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.

10. With the above, present petition stands disposed of. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(NIRAL R. MEHTA,J) ANUP