Gujarat High Court
Samitkumar Gopaldas Shah vs State Of Gujarat on 26 June, 2023
Bench: Samir J. Dave
R/SCR.A/6822/2023 ORDER DATED: 26/06/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 6822 of 2023
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SAMITKUMAR GOPALDAS SHAH
Versus
STATE OF GUJARAT
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Appearance:
MS. MAYURI P CHAUHAN(7069) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS SHRUTI PATHAK, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 26/06/2023
ORAL ORDER
1. Rule returnable forthwith. Learned APP waives service of
notice of rule for and on behalf of the respondent no.1-State.
2. By preferring this application, applicant has requested to
quash and set aside the order dated 17.04.2023 passed by
learned 4th Additional Judicial Magistrate First Class, Godhra at
Panchmahals below Ex. 37 and suspend the sentence imposed
upon the applicant vide order dated 17.04.2023 by learned 4 th
Additional Judicial Magistrate First Class, Godhra at
Panchmahals below Ex. 37 so that the applicant can prefer an
appeal before the learned appellate court.
3. Heard learned advocates for the respective parties.
4. It was submitted by learned advocate for the applicant
R/SCR.A/6822/2023 ORDER DATED: 26/06/2023
that the applicant was convicted for the offence punishable
under Section 138 of the NI Act vide order dated 17.04.2023
in Criminal Case No. 273 of 2020 but on the date of
pronouncement of the judgment and order of the conviction,
the applicant being the accused person was not present and as
he did not remain present during the pronouncement of
judgment and no application was filed for suspension of
substantive order of the sentence under Section 389 of CRPC,
learned court has issued non bailable warrant that is how the
applicant has approached this court by way of present
application.
5. It was submitted by learned advocate for the applicant
that applicant is ready and willing to deposit Rs. 1,50,000/-
before the concerned trial court within a period of 2 weeks
from today and ultimately, it was submitted by learned
advocate for the applicant to allow present application.
6. On the other side, learned APP for the respondent no.1
State has strongly objected the submissions made by learned
advocate for the applicant and requested to reject present
application of the applicant.
7. Having heard learned advocate for the applicant and
learned APP for the respondent no.1-State, it appears that the
applicant has been convicted and on the date of conviction, he
R/SCR.A/6822/2023 ORDER DATED: 26/06/2023
was not present before the court and thereafter, non bailable
warrant has been issued against him and as against that order,
he has approached this court.
8. 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 non-bailable warrant is
R/SCR.A/6822/2023 ORDER DATED: 26/06/2023
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."
9. In view of the aforesaid, this Court is inclined to pass
following directions :
(1) As per statement made by the learned advocate for the
applicant, applicant shall deposit Rs. 1,50,000/- before
the concerned trial court within a period of two weeks
from today and the applicant shall approach the learned
Trial court concerned in person with his Advocate for
cancellation of non bailable warrant issued by the
learned Magistrate and learned Magistrate will decide
such request in accordance with law.
(2) It will be open for him on the day and date he appears
before the concerned trial court to file an application
under Section 389(3) of the Cr.P.C. for provisional bail.
(3) 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.
R/SCR.A/6822/2023 ORDER DATED: 26/06/2023
(5) The applicant shall file an undertaking before the
court concerned to the effect that he will cooperate in the
proceedings and non-adherence of undertaking will
follow the consequences.
10. With the above, present petition stands disposed of. Rule is
made absolute to the aforesaid extent. Direct service is
permitted.
(SAMIR J. DAVE,J)
K. S. DARJI
