Gujarat High Court
Bharatbhai Ravajibhai Parmar vs State Of Gujarat on 8 February, 2024
NEUTRAL CITATION
R/SCR.A/1785/2024 ORDER DATED: 08/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 1785 of 2024
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BHARATBHAI RAVAJIBHAI PARMAR
Versus
STATE OF GUJARAT
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Appearance:
MS HONEY H THAKKAR(12467) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS JYOTI BHATT, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 08/02/2024
ORAL ORDER
1. By way of present petition, the petitioner has challenged
the judgment and order dated 12.01.2024 passed by the learned
2nd Additional Chief Judicial Magistrate, Ahmedabad (Rural),
Navrangpura in Criminal Case No.7422 of 2017 under Section 138
of the NI Act and prayed to convert the non-bailable warrant
issued while convicting the accused in bailable warrant.
2. Heard learned advocates for the respective parties.
3. It is worth to mention that the order of conviction and
sentence was passed on 12.01.2024 and no appeal was preferred
within the limitation before the learned Sessions Judge as right
of statutory appeal is provided.
4. On the first ground as alternate remedy is available, in this
regard, it would be apposite to refer the decision of Hon'ble
Supreme Court in the case of Hamida Vs. Rashid alias Rasheed
and Ors. reported in (2008) 1 SCC 474 as the offence is
NEUTRAL CITATION
R/SCR.A/1785/2024 ORDER DATED: 08/02/2024
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compoundable under Section 147 of the NI Act, if the petitioner
wants to compound the offence then he ought to have proceed
with the criminal appeal before the learned Sessions Court and
therefore, this Court is not inclined to entertain the present
petition at this stage with a liberty to avail statutory remedy
available under the law. The Hon'ble Apex Court in the case of
Hamida (Supra) has been pleased to observe in paragraph No.6
as under:
"6. We are in agreement with the contention advanced on
behalf of the complainant appellant. Section 482 Cr.P.C.
saves the inherent powers of the High Court and its
language is quite explicit when it says that nothing in the
Code shall be deemed to limit or affect the inherent powers
of the High Court to make such orders as may be necessary
to give effect to any order under the Code, or to prevent
abuse of the process of any Court or otherwise to secure
the ends of justice. A procedural Code, however exhaustive,
cannot expressly provide for all time to come against all the
cases or points that may possibly arise, and in order that
justice may not suffer, it is necessary that every court must
in proper cases exercise its inherent power for the ends of
justice or for the purpose of carrying out the other
provisions of the Code. It is well established principle that
every Court has inherent power to act ex debito justitiae to
do that real and substantial justice for the administration
of which alone it exists or to prevent abuse of the process
of the Court. As held by the Privy Council in Emperor v.
Khwaja Nazir Ahmad AIR 1945 PC 18 with regard to Section
561-A of the Code of Criminal Procedure, 1898 (Section 482
Cr.P.C. is a verbatim copy of the said provision) gives no
new powers. It only provides that those which the Court
already inherently possesses shall be preserved and is
inserted, lest it should be considered that the only powers
possessed by the Court are those expressly conferred by the
Code and that no inherent power had survived the passing
of the Act."
NEUTRAL CITATION
R/SCR.A/1785/2024 ORDER DATED: 08/02/2024
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5. Considering the aforesaid fact, the present application
does not deserves consideration.
6. The second contentions with regard to convert the non-
bailable warrant to bailable warrant is concerned, after
conviction all bail bond during the pendency of the Criminal Case
being forfeited and once accused is convicted and warrant is
issued, then provisions of Section 418 of Cr.P.C. would come into
force and once sentence is recorded only remedy is available to
prefer statutory appeal and governed the powers under Section
389 of the Cr.P.C.
7. However, it would be kept open for the petitioner, if
present petition is filed within limitation, the petitioner may
prefer the statutory appeal before the appellate Court and
appellate Court has to consider the same on its own merits.
8. With above observations, present petition is disposed of
with a liberty to avail statutory remedy available under the law
9. It is made clear that this Court has not examined the merits
of the case.
(HASMUKH D. SUTHAR,J)
KUMAR ALOK
