Gujarat High Court
Shantaben Dhanjibhai Solanki vs State Of Gujarat on 14 September, 2023
Bench: Samir J. Dave
NEUTRAL CITATION
R/SCR.A/11631/2023 ORDER DATED: 14/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 11631 of 2023
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SHANTABEN DHANJIBHAI SOLANKI
Versus
STATE OF GUJARAT
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Appearance:
MR KAVAN K PATEL(11303) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS M. H. BHATT, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 14/09/2023
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
30.06.2023 passed by learned 10th Additional Chief
Judicial Magistrate, Rajkot below Exh.23 in Criminal
Case No.2560 of 2021 and suspend the sentence imposed
upon the applicant, 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 that the applicant was convicted for the
offence punishable under Section 138 of the NI Act vide
order dated 30.06.2023 in Criminal Case No.2560 of 2021
NEUTRAL CITATION
R/SCR.A/11631/2023 ORDER DATED: 14/09/2023
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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 Code of
Criminal Procedure, learned court has issued non
bailable warrant and that is how the applicant has
approached this court by way of present application.
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 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 22.02.2017, as
referred to above, in somewhat similar set of facts.
NEUTRAL CITATION
R/SCR.A/11631/2023 ORDER DATED: 14/09/2023
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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. reported in 2017 (3) GLR 2353 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."
9. In view of the aforesaid, this Court is inclined to
pass following directions :
(1) 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.
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R/SCR.A/11631/2023 ORDER DATED: 14/09/2023
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(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.
(4) 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)
MEHUL B. TUVAR
