Gujarat High Court

Surjitbhai Asitbhai Bag vs State Of Gujarat on 8 February, 2024

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      R/CR.RA/1667/2023                            ORDER DATED: 08/02/2024

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

    R/CRIMINAL REVISION APPLICATION (AGAINST ACQUITTAL -
         NEGOTIABLE INSTRUMENT ACT) NO. 1667 of 2023
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                      SURJITBHAI ASITBHAI BAG
                               Versus
                         STATE OF GUJARAT
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Appearance:
MR. HJ KARATHIYA(7012) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS. JIRGA JHAVERI, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE S.V. PINTO

                              Date : 08/02/2024
                               ORAL ORDER

1. By way of present application, the applicant has filed

the application under Section 397 read with Section 401 of the

Code of Criminal Procedure, 1973 ( for short " the Cr.P.C.)

challenging the judgment and order passed by the learned 12 th

Additional Sessions Judge, Rajkot on 30 th September, 2023 in

Criminal Appeal No. 12 of 2022.

2. The brief facts leading to filing of this revision

application are as under:-

2.1 That the applicant-original complainant filed Criminal

Case No.14443 of 2018 in the Court of learned Chief Judicial

Magistrate, Rajkot on 30th November, 2018 against the the

respondent No.2-original accused under Section 138 of the

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Negotiable Instrument Act, 1881. The summons were duly served

to the respondent No.2-original accused and he appeared through

is advocate and the plea of the respondent No. 2 was recorded at

Exh; 8. That the applicant being the original complainant led the

evidence but thereafter, the respondent No. 2 or his advocate did

not remain present and the learned 5th Additional Chief Judicial

Magistrate, Rajkot closed the stage of cross examination as also

the stage of further statement and arguments and by an order

dated 16th October, 2021 was pleased to convict the respondent

No.2-original accused to simple imprisonment of one year and also

ordered the respondent No. 2 to pay an amount of Rs.5,00,000/-

as compensation to the applicant within a period of 60 days and to

simple imprisonment of six months if the amount was not paid.

2.2 Being aggrieved and dissatisfied with the said

judgment and order, the respondent No. 2 filed Criminal Appeal

No. 12 of 2022 before the 12 th Additional Session Judge, Rajkot

and after hearing the learned advocates for both the parties, the

learned 12th Additional Sessions Judge, Rajkot was pleased to set

aside the judgment and order of conviction and remanded the case

back to the learned trial Court with the direction that the

respondent No. 2 be given an opportunity of cross examining the

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complainant, recording the further statement of respondent No. 2

and after hearing on merits to decide the case.

3. Being aggrieved and dissatisfied with the said order of

remand, the applicant has filed the present revision application,

mainly stating that the respondent No.2 has deliberately avoided

the proceedings and even though sufficient opportunity was given,

he has not remained present either in person or through his

advocate before the learned trial Court and hence he cannot

contend that no opportunity was given. That the learned 12 th

Additional Sessions Judge, Rajkot has erred in arriving at the

findings that the procedure under Section 82 and Section 83 of the

Cr.P.C was not undertaken by the learned trial Court as the

respondent No. 2-original accused was duly served with the

summons and he was appearing through his advocate . That the

applicant-original complainant has proved the entire case in the

learned trial Court and the order of remand passed by the learned

12th Additional Sessions Judge is erroneous and illegal and hence

the same must be set aside.

3.1 Learned advocate for the applicant has relied upon the

judgment delivered by the Hon'ble Apex Court in the case Manoj

Sompura vs. State of Gujarat, reported in 2023 (0) AIJEL SC

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247313.

4. Heard learned advocate Mr. H.J.Karathiya for applicant and

learned Additional Public Prosecutor Ms. Jirga Jhaveri for the

State.

5. Learned advocate Mr. Karathiya for the applicant has

reiterated the contents of the revision application and has further

submitted that the judgment and order of conviction of the learned

5th Additional Chief Judicial Magistrate was not required to be

reversed or set aside as the same was after considering all

evidence on record. That the learned 12 th Additional Session

Judge, has clearly erred in concluding that there are procedural

lapse in the judgment of the learned trial Court and it is clear that a

number of opportunities were given to the respondent No.2 but he

deliberately chose not to appear and there is a huge delay caused

due to the conduct of the respondent No.2. That the applicant

herein has produced all the necessary documents and also his

cross examination on oath and if the record is perused, the matter

was kept for cross examination of the applicant for number of

occasions but the respondent no. 2 did not appear and he did not

give any instructions to his advocate and hence the advocate of

the respondent No. 2 submitted " no instructions pursis" at Exh: 24.

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That, thereafter, stage of cross examination was closed and as the

respondent No. 2 did not remain present, the stage of further

statement and stage of arguments was closed and the learned trial

Court pronounced the final judgment on 16 th December, 2021. That

no illegality was committed by the learned trial Court and after

deliberately avoiding the trial proceedings, the respondent no. 2

could not suddenly wake up and contend that he has not been

given any opportunity.

5.1 Learned advocate for the applicant has submitted that

this Court, in the case of Manoj Sompura (supra), has held that

when the state of cross examination and the stage of further

statement under Section 313 of the Cr.P.C. was closed, the

learned trial Court was justified in closing the stage as repeated

opportunities were given to the accused but he did not remain

present and hence the order of learned 12 th Additional Sessions

Judge, must be set aside.

5.2 Learned Additional Public Prosecutor has submitted

that the learned Sessions Court has merely passed the order of

remand as the defense of the accused has not come on record. It

is on record that the original accused was served with the

summons and he had appeared through his advocate and

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thereafter his plea was recorded but the learned advocate

submitted " no instructions pursis" and as per the judgment of the

learned 12th Additional Sessions Judge, no procedure under

Sections 82 and 83 of the Cr.P.C. was done by the learned trial

Court. Moreover, no procedure under Section 299 and 317 (2) of

the Cr.P.C. was also followed by the learned trial Court. The

learned trial Court has also replied upon the judgment of the

Hon'ble Supreme Court in the case of Indian Bank Association

Ors. Vs. Union of India , reported in 2014 ( 0) AIJEL-SC 55452

and has merely directed the learned trial Court to follow the

guidelines led therein. Moreover, if the order of the learned

Sessions Court is perused, the learned Sessions Court has also

directed to both the parties to remain present before the learned

trial Court on 16th October, 2023 and to cooperate fully in earlier

disposal of the trial. That if the applicant had remained present

before the learned trial Court, the learned trial Court would have

conducted the matter and the matter would be disposed of.

5.3 As far as the judgment relied upon the learned

advocate for the applicant is concerned, learned Additional Public

Prosecutor has submitted that the order passed in the case of

Manoj Sompura (supra) was in a petition filed under Section 226

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and Section 227 of the Constitution of India read with Section 482

of the Cr.P.C. and this Court has, in para 15, held as under;

"15. There is also growing tendency to approach to the High Court under Section 438 of the Cr.P.C. for anticipatory bail directly without approaching to the Court of Sessions Judge. It is true that the High Court and the Court of Sessions judge have concurrent jurisdiction under Section 438 of the Cr.P.C. for grant of bail to person apprehending the arrest. But considering the convenience, smooth and effective functioning of the Court, it is always desirable that, at the first instance, the application is made to the Court of Sessions Judge, otherwise, if all the applications under Section 438 are filed before the High Court directly, the police papers will have to be summoned from the various parts of the State, putting the entire police machinery only at the disposal of the High Court for consideration of application under Section 438. On the other hand, if the applicant moves to the Court of Sessions Judge within whose jurisdiction the case has been registered, police papers can be quickly made available. The Public Prosecutor and the police will be able to effectively and quickly assist the Court in consideration of an application under Section 438 of the Cr.P.C. In case the bail application is rejected and the matter comes to the High Court, it would be advantageous for the High Court to not only know the full facts but also the views of the Sessions Judge. In view of this, well established practice in almost all the High Courts is that in the matter of application under Section 438 or 439 of Cr.P.C. the party first approach to the Court of the Sessions Judge. Thus, in my view, the practice of filing the bail application under Section 438 or 439 of the Cr.P.C. straightaway to the High Court without resorting to filing of such applications before the Court of Sessions should not undefined be permitted unless there are exceptional and compelling circumstances." (sic)

5.4 Learned Additional Public Prosecutor has further

submitted that in the instance case, the respondent No. 2 has filed

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the appeal under Section 374 of the Cr.P.C. before the learned

Sessions Court, and there is no illegality in the order of the

judgment and order passed by the learned 12 th Additional Sessions

Judge, Rajkot on 30th September, 2023 in Criminal Appeal No. 12

of 2022 and hence the present revision application deserves to be

rejected.

5.5 It is settled principles of law that power of revision

under Section 397 and Section 401 of the Code are required to be

read together and Section 397 gives powers to the High Court to

call for records as also exercise suo motu powers under Section

401 to examine the correctness, legality or propriety of any finding,

sentence or order. The main object is to set aright a patent defect

of an error of jurisdiction or law or the perversity which has crept in

the proceedings. The revisional powers of the High Court are very

wide but are purely discretionary and should be exercised only in

rare cases to prevent miscarriage of justice where there is a

glaring defect in procedure on points of law resulting in failure of

justice.

5.6 As per the record of the case, the applicant had filed a

complaint on 30th November, 2018 and the respondent No. 2-

original accused appeared, after being served with the summons,

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and the Vakalatnama of the learned advocate for the respondent

No. 2-original accused was filed on 15 th March, 2019 at Exh: 6.

That the plea of the respondent No. 2- original accused was

recorded on 4th April, 2019 at Exh; 8 and the exemption

applications of the original accused were preferred on 23 rd August ,

2019 at Exh; 19, on 18th September, 2019 at Exh; 20 and on 11 th

October, 2019 at Exh: 22. That all the applications have been

allowed by the learned trial Court and thereafter, on 16 th

November, 2019, learned advocate for the applicant filed " No

instructions Pursis" at Exh; 24. That, after filing of "No Instructions

Pursis" , the application, to close, the stage of cross examination

was given on 7th February, 2020 and by an order dated 11 th March,

2020, the stage of cross examination was closed and a closing

pursis was submitted vide Exh: 26 on 11 th March, 2020. That,

thereafter, the application for closing stage of further statement

was given and the learned trial Court passed the judgment of

conviction on 16th October, 2021.

6. Admittedly, the complainant has not been cross-

examined by the learned advocate for the original accused and it

appears that on the dates when the applications for exemption

were submitted, the complainant was not cross examined. It is not

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clear as to whether, on those dates, the complainant was present

before the learned Court and he was not cross examined and it

appears that as only the exemption applications were submitted. If

the complainant was present before the learned Court, learned

advocate for the original accused would have conducted the cross

examination. That even after " No instructions Pursis" was filed by

the learned advocate for the original accused on 16 th November,

2019, the learned trial Court has not passed any order to proceed

under Section 299 or Section 317(2) of the Cr.P.C. As observed by

the learned Sessions Court, the learned trial Court has not made

any endeavor to proceed under Section 82 and Section 83 of the

Cr.P.C. and no applications and no warrant has been issued to

secure the presence of the respondent No. 2 original accused

before the learned trial Court. The learned Sessions Court has

observed that, due to closing of the stage of cross examination,

stage of recording of further statement and not following the due

procedure of Section 299 and Section 317(2) of the Cr.P.C. or

Section 82 and Section 83 of the Cr.P.C., the original accused

must be given an opportunity and hence has passed the order of

remand and has directed the parties to remain present before the

learned trial Court on the date fixed by learned Sessions Court. It

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is settled principles of law that the accused must be given a fair

opportunity of putting up his defense and the impugned order of

remand is just and proper.

7. There is no illegality, perversity or impropriety in the

order passed by the learned 12th Additional Sessions Judge,

Rajkot on 30th September, 2023 in Criminal Appeal No. 12 of 2022

and hence the present revision application is liable to be dismissed

and accordingly stands rejected.