Hareshbhai Laljibhai Kathiriya vs State Of Gujarat
2024 Latest Caselaw 91 Guj

Gujarat High Court

Hareshbhai Laljibhai Kathiriya vs State Of Gujarat on 4 January, 2024

                                                                                     NEUTRAL CITATION




    R/SCR.A/16888/2023                                 ORDER DATED: 04/01/2024

                                                                                     undefined




 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 16888 of 2023
==========================================================
               HARESHBHAI LALJIBHAI KATHIRIYA
                           Versus
                     STATE OF GUJARAT
==========================================================
Appearance:
MS KRUTI SHAH for MS DHRUTI G PANDYA(10821) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS VRUNDA SHAH, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
==========================================================
  CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                             Date : 04/01/2024

                                ORAL ORDER

[1.0] By way of present petition under Articles 19, 21 and 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 , the petitioner has prayed for the following reliefs:

"(B) issue appropriate writ, order or direction to the Ld. 15th Addl. Senior Civil Judge, Surat to accept the application under section 389(3) of the Code of Criminal Procedure and decide the application in accordance with law in the interest of justice;

(C) issue appropriate writ, order or direction to convert the non-bailable warrant to bailable warrant issued against petitioner in Judgment dated 30.11.2023 passed by the 15 th Addl. Senior Civil Judge, Surat in Criminal Case No.9399 of 2020 in the Complaint filed under Section 138 of the Negotiable Instruments Act which is at Annexure-B;

NEUTRAL CITATION

R/SCR.A/16888/2023 ORDER DATED: 04/01/2024

undefined

(D) Pending admission, final hearing & disposal of this petition, stay the implementation and operation of the Judgment dated 30.11.2023 passed by the 15 th Addl. Senior Civil Judge, Surat in Criminal Case No.9399 of 2020 in the Complaint filed under Section 138 of the Negotiable Instruments Act which is at Annexure-B in the interest of justice;"

[2.0] Learned advocate for the petitioner has requested to convert the non-bailable warrant into bailable warrant and to exercise the jurisdiction under Section 482 of the CrPC. In the alternative, she has requested to exercise powers under Section 389 of the CrPC. Further, she has vehemently argued that why the accused should go behind the bars in bailable offence. In support of her submissions, she has relied on the decision dated 14.11.2016 of the coordinate Bench of this Court in the case of Sharad Jethalal Savla vs. State of Gujarat and Others rendered in Criminal Misc. Application No.19862 of 2015; decision dated 22.02.2017 in Special Criminal Application No.9112 of 2016 and decision dated 28.09.2022 in Special Criminal Application No.9765 of 2022 and has requested to allow the present petition.

[3.0] At the outset it is worth to mention that the present petitioner is convicted by learned 15th Additional Senior Civil Judge, Surat vide Judgment dated 30.11.2023 passed in Criminal Case No.9399 of 2023 filed under Section 138 of the Negotiable Instruments Act, 1881 and sentenced to undergo simple imprisonment for a period of one year and ordered to pay compensation. Further, as the petitioner - convict remained

NEUTRAL CITATION

R/SCR.A/16888/2023 ORDER DATED: 04/01/2024

undefined

absent, the learned trial Court has been pleased to issue warrant of arrest against the accused to serve the sentence. As regards the submission of learned advocate for the petitioner that why the accused should go behind the bars, it is worth to mention that the present petitioner - accused is convicted after following due process of law and bail bond of the accused stood canceled and then the warrant of arrest against the accused to serve the sentence is issued. Hence, this is not a case where the Court has issued the warrant of arrest without following the due process of law. Once accused is convicted then the statutory remedy available to accused is to file statutory criminal appeal challenging the judgment of conviction and to file application under Section 389 of the CrPC for suspension of sentence pending the criminal appeal. Herein, without availing statutory remedy i.e. filing statutory appeal before the learned Sessions Judge, straightway the petitioner has approached this Court and insisted this Court to exercise jurisdiction under Section 482 of the CrPC. It is needless to say that the order issuing Non-Bailable Warrant passed by the learned trial Court is legal and valid one and under Section 418(2) of the CrPC, when the accused is sentenced to imprisonment and is not present in the Court, the Court has to issue warrant of arrest and the sentence shall commence from the date of his arrest. Hence, till the accused is not arrested, question of commencement of sentence does not arise and hence, question does not arise to exercise power under Section 389 of the CrPC for suspension of sentence. Thus, it appears that the learned trial Court has committed no error in issuing Non-Bailable Warrant for the purpose of execution of sentence and in that even, if the petitioner wants to challenge any order passed by the learned trial Court then he has to avail

NEUTRAL CITATION

R/SCR.A/16888/2023 ORDER DATED: 04/01/2024

undefined

statutory remedy rather than straightway approaching this Court under Section 482 of the CrPC as per the sweet will of the petitioner - accused.

[4.0] It is pertinent to note that while specific query is put to learned advocate for the petitioner that whether the petitioner is willing to appear before the concerned appellate Court alongwith his Advocate and file an application under Section 389 of the CrPC and request to suspend the sentence, learned advocate for the petitioner has not shown willingness and insisted to convert the Non-Bailable Warrant into Bailable Warrant. But considering the fact that the learned trial Court has not committed any error in issuing the warrant of arrest and statutory remedy is available to the petitioner, the order issuing warrant of arrest passed by the learned trial Court cannot be considered in any circumstances to be abuse of process of law.

[5.0] Section 482 of the CrPC reads as under:

"482. Saving of inherent powers of High Court.- Nothing in this 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 this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."

[6.0] Even, in the case of Hamida vs. Rashid alias Rasheed and Others reported in (2008)1 SCC 474, the Hon'ble Supreme Court has specifically explained the term 'alternative remedy' and held that power under Section 482 of the CrPC has to be exercised

NEUTRAL CITATION

R/SCR.A/16888/2023 ORDER DATED: 04/01/2024

undefined

sparingly with circumspection and in rare cases and that too to correct patent illegalities or when some miscarriage of justice is done and has been pleased to deprecate the practice of High Courts in entertaining petitions under Section 482 when there was an effective alternative remedy available. It is also observed that ends of justice would be better served if valuable time of the Court is spent in hearing those appeals rather than entertaining petitions under Section 482 of CrPC at an interlocutory stage which are often filed with some oblique motive in order to circumvent the prescribed procedure. In paragraph 8 of the said decision, it has been observed and held as under:

"...It must be remembered that the inherent power is not to be resorted to if there is a specific provision in the Code or any other enactment for redress of the grievance of the aggrieved party. This power should not be exercised against an express bar of law engrafted in any other provision of the Criminal Procedure Code. This power cannot be exercised as against an express bar in some other enactment."

In view of the above, this Court is of the considered view that alternative remedy available to the petitioner is to file statutory appeal before the learned Sessions Judge and to file application under Section 389 of the CrPC and not a petition under Section 482 of the CrPC.

[6.1] It is also appropriate to refer to the decision dated 10.02.2022 of the coordinate Bench of this Court in the case of Istadev Projects Pvt. Ltd. Company Thro Maheshbhai Virabhai Patel vs. State of Gujarat [Special Criminal Application

NEUTRAL CITATION

R/SCR.A/16888/2023 ORDER DATED: 04/01/2024

undefined

No.1704/2022]. In the said case, the learned advocate for the petitioner had tried to distinguish the provisions contained in Section 389(1) and 389(3) of the CrPC however, the coordinate Bench dismissed the said petition.

[7.0] In wake of aforesaid discussion, present petition stands dismissed in limine with a liberty in favor of the petitioner to avail appropriate statutory remedy before the appropriate Forum. It is made clear that this Court has not gone into the merits of the case.

(HASMUKH D. SUTHAR, J.)

Ajay