Gujarat High Court

Lalubhai Dasrathbhai Patel vs State Of Gujarat on 12 September, 2023

Bench: Hasmukh D. Suthar

                                                                                       NEUTRAL CITATION




      R/CR.RA/1118/2023                               ORDER DATED: 12/09/2023

                                                                                       undefined




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
      R/CRIMINAL REVISION APPLICATION NO. 1118 of 2023
                            With
 CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE)
                        NO. 1 of 2023
     In R/CRIMINAL REVISION APPLICATION NO. 1118 of 2023
 ==========================================================
                          LALUBHAI DASRATHBHAI PATEL
                                     Versus
                               STATE OF GUJARAT
 ==========================================================
 Appearance:
 MR HARNISH V DARJI(3705) for the Applicant(s) No. 1
 MR.SAURABH CHANDEL, Adv (s) No. 2
 MR HARDIK MEHTA, APP for the Respondent(s) No. 1
 ==========================================================

CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                                Date : 12/09/2023
                                 ORAL ORDER

1. Mr. Saurabh Chandel, learned advocate submits

that he has instructions to appear on behalf of the

respondent No.2. He is permitted to file his appearance.

2. Rule. Learned APP waives service of notice for Rule

for and on behalf of respondent-State. Mr.Saurabh

Chandel, learned Advocate waives service of notice of

Rule for the respondent No.2.

3. Present Criminal Revision Application under

Section 397 read with Section 401 of the Code of

NEUTRAL CITATION

R/CR.RA/1118/2023 ORDER DATED: 12/09/2023

undefined

Criminal Procedure, 1973 (hereinafter referred to as

"CrPC") has been preferred by the applicant - accused to

quash and set aside the impugned order dated

2.12.2022 passed by the learned 5th Additional Chief

Judicial Magistrate, Bhuj Kutch in Criminal Case No.

2502 of 2021 and further be pleased to quash and set

aside the judgment and order of conviction passed in

Criminal Appeal No.103 of 2022 dated 25.07.2023,

passed by the learned 8th Additional Sessions Judge,

Bhuj-Kutch, whereby the learned Additional Sessions

Judge has dismissed the said appeal.

4. Being aggrieved and dissatisfied by the judgment

and order of the Courts below, the present Revision

Application has been filed before this Court.

5. Learned advocate for the applicant submits that the

learned Sessions Judge has passed the order without

affording the applicant an opportunity to be heard and

without appreciation of the evidence and without

considering the facts and circumstances of the case. It is

NEUTRAL CITATION

R/CR.RA/1118/2023 ORDER DATED: 12/09/2023

undefined

further submitted that the learned Sessions Judge has

upheld the finding recorded by the learned JMFC

without affording the applicant and his counsel an

opportunity to be heard and dismissed the appeal. It is

submitted that the learned Sessions Judge has passed

the order on the basis of pursis wherein the accused has

promised to pay the amount of Rs.80,000/- towards the

settlement and declared it before the Court vide

application of Exhibit 16. He has relied on the judgment

of Hon'ble Apex Court in the case of Bani Singh Vs State

of Uttar Pradesh, reported in AIR 1996 SC 2439, and

submitted that Court is duty-bound to adjourn the

matter if the parties are not present. Therefore, the

courts below have committed serious error in not giving

the applicant an opportunity of being heard and

considering the evidence produced on record in its true

spirit and therefore, he submits that the application be

allowed.

6. Per contra, Learned APP has vehemently opposed

NEUTRAL CITATION

R/CR.RA/1118/2023 ORDER DATED: 12/09/2023

undefined

the application and submitted that the trial Court has

properly appreciated the evidence produced on record.

Therefore, he prays that the present application be

dismissed.

7. Mr. Saurabh Chandel, the learned advocate

appearing for the complainant, submits that the Courts

below have not committed any error in appreciating the

evidence and convicting the applicant. It is submitted

that despite multiple adjournments, the applicant and

his advocate perennially ignored joining the Court's

hearings. Therefore, the Court below is left with no

option but to dismiss the appeal. In the Pursis at Exhibit

16, He has clearly admitted the fact of the transaction

and has assured that he will provide an amount of Rs.

80,000/- for settlement. Hence, the present application

lacks merit and may be dismissed, as the applicant has

filed it with an ulterior motive.

8. Having heard learned advocates appearing for the

NEUTRAL CITATION

R/CR.RA/1118/2023 ORDER DATED: 12/09/2023

undefined

respective parties and considering the fact that the

learned Additional Sessions Judge has dismissed the

appeal merely on the basis of pursis filed below Exhibit

16 wherein, it is stated that the settlement took place

and he is ready and willing to pay Rs.80,000/- towards

the settlement. However, after going through the pursis,

it appears that the applicant has not admitted anything

about the transaction's details or any specific amount.

He has only mentioned about the settlement and assured

to pay the amount of Rs. 80,000/- towards the

settlement. For the sake of argument, if it is accepted,

even though, be that as it may, from the order of the

learned Sessions Judge, it appears in paragraph 5 that

neither the accused nor the learned advocate for the

applicant were present before the Court, and they were

not given an opportunity to be heard before deciding the

appeal. In accordance with various judgments by the

Hon'ble Apex Court as well as Hon'ble High Courts, it

has been advised that when deciding Criminal Appeal, it

is the duty of the learned Appellate Court to thoroughly

NEUTRAL CITATION

R/CR.RA/1118/2023 ORDER DATED: 12/09/2023

undefined

examine the reasons provided by the learned trial Court

under Section 374 of the CrPC.

8.1 In the case of Padam Singh vs State of UP, reported

in (2000) 1 SCC 621, the Hon'ble Apex Court has held

that the appellant Court should dispose of the appeal on

merits not merely by perusing the reasoning given by the

trial Court but should cross-check the reasoning with

the evidence on record with a view to satisfy itself that

the reasoning and finding recorded by the learned trial

Court are consistent with the material on record.

9. Prima facie, the impugned order passed by the

learned Sessions Judge requires interference in hands of

this Court in view of the law laid down by the Hon'ble

Supreme Court in the case of (i) Kabira vs. State of Uttar

Pradesh reported in 1981 (Supp) SCC 76; (ii) Mohd.

Sukur Ali vs. State of Assam reported in (2011)4 SCC

729 and the recent decision in the case of K.

Muruganandam & Ors. vs. State Rep. By the Deputy

Superintendent of Police & Anr. rendered in Criminal

NEUTRAL CITATION

R/CR.RA/1118/2023 ORDER DATED: 12/09/2023

undefined

Appeal No.809 of 2021. In the said decisions, it has been

observed and held by the Hon'ble Supreme Court that

Criminal Appeal cannot be dismissed merely because of

non-representation or default or in absence of the

Advocate for the accused.

9.1 In the case of Mohd. Sukur Ali (supra), the Hon'ble

Court in paragraph Nos.5 and 17 has held as under:

"5. We are of the opinion that even assuming that the counsel for the accused does not appear because of the counsel's negligence or deliberately, even then the Court should not decide a criminal case against the accused in the absence of his counsel since an accused in a criminal case should not suffer for the fault of his counsel and in such a situation the Court should appoint another counsel as amicus curiae to defend the accused. This is because liberty of a person is the most important feature of our Constitution. Article 21 which guarantees protection of life and personal liberty is the most important fundamental right of the fundamental rights guaranteed by the Constitution.

Article 21 can be said to be the 'heart and soul' of

NEUTRAL CITATION

R/CR.RA/1118/2023 ORDER DATED: 12/09/2023

undefined

the fundamental rights.

We reiterate that in the absence of a counsel, for whatever reasons, the case should not be decided forthwith against the accused but in such a situation the Court should appoint a counsel who is practising on the criminal side as amicus curiae and decide the case after fixing another date and hearing him. If on the next date of hearing the counsel, who ought to have appeared on the previous date but did not appear, now appears, but cannot show sufficient cause for his non- appearance on the earlier date, then he will be precluded from appearing and arguing the case on behalf of the accused. But, in such a situation, it is open to the accused to either engage another counsel or the Court may proceed with the hearing of the case by the counsel appointed as amicus curiae."

10. In view of the above, it appears that the appeal is

decided in absence of the advocate and up to that extent,

the learned Sessions Judge has committed an error and

therefore, the present criminal revision application is

allowed. Impugned order dated 25.07.2023 passed in

NEUTRAL CITATION

R/CR.RA/1118/2023 ORDER DATED: 12/09/2023

undefined

Criminal Appeal No.103 of 2022 by the learned 8 th

Additional Sessions Judge, Bhuj-Kutch is hereby

quashed and set aside and matter is remitted to the

learned 8th Additional Sessions Judge, Bhuj-Kutch for