Gujarat High Court
Rajkot Municipal Corporation Thro R. R. ... vs State Of Gujarat on 23 January, 2024
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R/CR.MA/21134/2023 ORDER DATED: 23/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 21134
of 2023
In R/CRIMINAL APPEAL NO. 198 of 2024
With
R/CRIMINAL APPEAL NO. 198 of 2024
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RAJKOT MUNICIPAL CORPORATION THRO R. R. PARMAR
Versus
STATE OF GUJARAT
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Appearance:
MR HRIDAY BUCH(2372) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS MONALI BHATT APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 23/01/2024
ORAL ORDER
ORDER IN CRIMINAL MISC. APPLICATION:
1. This is an application by the applicant - original complainant
under Section 378(4) of the Code of Criminal Procedure, 1973,
seeking leave of this Court to present an appeal against the
judgment and order of acquittal dated 18.11.2022 passed by the
learned 4th Additional Sessions Judge, Rajkot in Criminal Appeal
No.157 of 2021.
2. Heard, learned advocates appearing for respective parties and
perused the impugned judgment and order of the trial Court.
3. Learned advocate Mr.Mrunal Dholaria for learned advocate
Mr.Hriday Buch for the applicant submits that the appeal is filed
under Section 378 of the Code of Criminal Procedure, challenging
the order of acquittal passed by the learned 4 th Additional Sessions
Judge, Rajkot acquitting the respondent - accused from the charges
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R/CR.MA/21134/2023 ORDER DATED: 23/01/2024
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under Section 58 of the Food, Safety and Standards Act, 2006. The
learned advocate submits that before the learned trial Court, the
prosecution was held under Section 59 of the Act and the conviction
was ordered under Section 58 of the Food, Safety and Standards
Act, 2006. The convict was ordered to undergo one month simple
imprisonment and penalty of Rs.5000/-. The learned advocate
submits that challenging the aforesaid conviction, the appeal was
preferred before the learned 4 th Additional Sessions Judge, Rajkot
wherein, the learned Sessions Court held that in absence of the
particular charge framed against the accused, conviction of the
accused under Section 58 is not maintainable. The learned advocate
relies on Section 222 of the Code of Criminal Procedure, which is
reproduced herein below:-
"222. When offence proved included in offence
charged.--(1) When a person is charged with an
offence consisting of several particulars, a
combination of some only of which constitutes a
complete minor offence, and such combination is
proved, but the remaining particulars are not
proved, he may be convicted of the minor offence,
though he was not charged with it.
(2) When a person is charged with an offence and
facts are proved which reduce it to a minor
offence, he may be convicted of the minor offence,
although he is not charged with it.
(3) When a person is charged with an offence, he
may be convicted of an attempt to commit such
offence although the attempt is not separately
charged.
(4) Nothing in this section shall be deemed to
authorise a conviction of any minor offence where
the conditions requisite for the initiation of
proceedings in respect of that minor offence have
not been satisfied.
Illustrations
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R/CR.MA/21134/2023 ORDER DATED: 23/01/2024
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(a) A is charged, under section 407 of the Indian
Penal Code (45 of 1860), with criminal breach of
trust in respect of property entrusted to him as a
carrier. It appears, that he did commit criminal
breach of trust under section 406 of that Code in
respect of the property, but that it was not
entrusted to him as a carrier. He may be convicted
of criminal breach of trust under the said section
406.
(b) A is charged, under section 325 of the Indian
Penal Code (45 of 1860), with causing grievous
hurt. He proves that he acted on grave and sudden
provocation. He may be convicted under section
335 of that Code."
4. The learned advocate also relies on Section 464 of the Code of
Criminal Procedure, which is reproduced herein below:-
464. Effect of omission to frame, or absence of, or
error in, charge.--(1) No finding, sentence or order
by a Court of competent jurisdiction shall be
deemed invalid merely on the ground that no
charge was framed or on the ground of any error,
omission or irregularity in the charge including any
misjoinder of charges, unless, in the opinion of the
Court of appeal, confirmation or revision, a failure
of justice has in fact been occasioned thereby
(2) If the Court of appeal, confirmation or revision,
is of opinion that a failure of justice has in fact
been occasioned, it may,--
(a) in the case of an omission to frame a charge,
order that a charge be framed, and that the trial
be recommended from the point immediately after
the framing of the charge;
(b) in the case of an error, omission or irregularity
in the charge, direct a new trial to be had upon a
charge framed in whatever manner it thinks fit:
Provided that if the Court is of opinion that the
facts of the case are such that no valid charge
could be preferred against the accused in respect
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R/CR.MA/21134/2023 ORDER DATED: 23/01/2024
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of the facts proved, it shall quash the conviction."
5. The learned advocate has also drawn attention of this Court to
the Section for which, the accused was charged i.e. Section 59 and
Section 58 for which, the conviction was awarded. The learned
advocate submits that Section 58 is the minor offence, as only
penalty provisions are there. Therefore, even in absence of the
charge, the learned trial Court is having the power to order
conviction for the same office. The learned advocate submits that
without considering the above law and the provisions, the learned
Appellate Court has passed the judgment and order of conviction
which is illegal and, therefore, the same is required to be interfered
with.
6. Considering the avernments made in the application and
submissions made by the learned advocates appearing for the
respective parties, this Court finds that there is some arguable case
in favour of the applicant, therefore, leave, as prayed for, is granted.
This application is allowed.
ORDER IN CRIMINAL APPEAL:
1. The appeal is admitted. Learned APP waives service of notice
of admission on behalf of respondent - State.
2. Issue bailable warrant in the sum of Rs.5,000/- (Rupees Five
Thousand only) against the respondent - original accused.
3. Record and proceedings be called for from the concerned
court. Registry is directed to list the Criminal Appeal in seriatim.
(M. K. THAKKER,J)
Hitesh
