Gujarat High Court
Piyush Ambalal Patel - Paras Skin And ... vs State Of Gujarat on 10 June, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.RA/771/2024 ORDER DATED: 10/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 771 of 2024
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PIYUSH AMBALAL PATEL - PARAS SKIN AND COSMETIC CLINIC
Versus
STATE OF GUJARAT & ANR.
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Appearance:
K R PATEL(7601) for the Applicant(s) No. 1
MR VAIBHAV N SHETH(5337) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR HARDIK MEHTA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 10/06/2024
ORAL ORDER
1. Mr. Vaibhav N.Sheth, learned advocate
for the applicant, submitted that the applicant
has been accused no.2 in Criminal Case No.14997
of 2019, which was filed before the 10th
Additional Judicial Magistrate, First Class,
Ahmedabad (Rural) under section 138 of the N.I.
Act. Advocate Mr. Sheth stated that the present
applicant came to be convicted and sentenced for
one year simple imprisonment under section 138 of
the N.I. Act, and was ordered to deposit double
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the amount of cheque, which was calculated as
Rs.2,11,662/-, within 30 days of the order as a
compensation amount. In failure to deposit the
money, three months further imprisonment was
ordered.
2. Advocate Mr. Sheth further submitted
that accused no.1, wife of the present applicant,
was acquitted, while the present applicant has
been sentenced for one year. Mr. Sheth submitted
that the conviction order was passed in absence
of accused no.2, and the order dated 25.01.2023
was to the effect of bringing the accused no.2
before the Court on issuance of non-bailable
warrant.
3. Advocate Mr. Sheth submitted that an
appeal was proposed to be preferred against the
judgment of conviction of the Judicial
Magistrate, First Class in Criminal Case No.14997
of 2019 by filing delay condonation application,
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which was for condoning the delay of one year 37
days. Mr. Sheth stated that delay condonation
application came to be rejected on the
observation of the 7th Additional District and
Sessions Judge, Ahmedabad (Rural), that the
present applicant was not present before the
Court on the date of declaration of the judgment
and since non-bailable warrant had been issued,
he was required to move an application for stay
by appearing before the Judicial Magistrate,
First Class and making a prayer for bail till the
time of filing of the appeal.
4. Mr. Sheth, learned advocate for the
applicant stated that there is no allegation that
the applicant was dodging the service of non-
bailable warrant; the Additional Sessions Court
was required to consider the merits of the case,
where the prayer was made to condone the delay of
one year and 37 days.
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5. Referring to the provision of section
374 of the Cr.P.C., Mr. Sheth submitted that on
conviction, an appeal is to be preferred before
the Court of Sessions, and, thus there would not
be any scope of again appearing before the
Judicial Magistrate, First Class when an order
had already been passed for issuance of non-
bailable warrant. Mr. Sheth submitted that for a
prayer to suspend the sentence, the appellate
Courts are guided by the provision of section 389
of Cr.P.C., and could have ordered the execution
of the sentence, but when a prayer has been made
for condoning the delay, then it becomes
incumbent upon the courts to decide the
application on merits.
6. Advocate Mr. Sheth further submitted
that delay condonation application came to be
rejected on the observation that the applicant
had not surrendered before the trial Court
praying for bail.
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7. Advocate Mr. Sheth stated that the
observation in the impugned order shows that
Advocate of the applicant was very much present
before the Court and the hearing of the
application was in progress; the Sessions Court
itself could have gone by the provisions of
section 389 Cr.P.C., or while rejecting the delay
condonation application, ought to have ordered
the execution of sentence, which Mr. Sheth
submitted itself could be the criteria which
comes into play only after the application
praying for condoning the delay has been decided
on merits.
8. Countering the arguments, Mr. Hardik
Mehta, learned APP, submitted that the applicant
had the knowledge of the proceedings, and was
required to be present on the date of declaration
of the judgment, and when non-bailable warrant
has been issued, he was required to suffer the
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sentence and surrender before the jail authority,
and thereafter could have made a prayer for
releasing him on bail, which he has failed to do
so, and, thus the Sessions Court rightly,
observing the conduct of the applicant, rejected
the application, therefore, submitted that the
order is reasoned and sound, which does not
require the interference of this Court.
9. Heard learned advocates for the
respective parties and perused the documents
produced on record. The trial Court had acquitted
the wife of the applicant, while convicted the
present applicant for sentence of one year, and
further order of payment of compensation of
Rs.2,11,662/- has been passed.
10. Learned advocate Mr. Sheth submitted
that the applicant is ready to deposit the said
amount. Further, referring to the order in the
case of Ishwarbhai Hirabhai Chunara & 1 Vs. State
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of Gujarat & 1, in Special Criminal Application
(Quashing) No.9113 of 2016, submitted that an
opportunity is required to be given so that, can
move an application under section 389 Cr.P.C. for
bail to enable him to prefer a Criminal Appeal,
and may again move the Court for hearing of the
Criminal Appeal.
11. The observation of the 7th Additional
District Sessions Judge, Ahmedabad (Rural)
rejecting the delay condonation application is to
the effect that the applicant had failed to
surrender before the trial Court and move for
bail so as to prefer an appeal.
12. In the case of Lallan Singh and others
Vs. State of Uttar Pradesh, the Hon'ble Supreme
Court made the observations in paras 10, 10.1,
10.2 and 10.3, which are elicited as under:
"10. The legal position as to the
process that should follow an order
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or conviction is much too clear to
require any special emphasis. We say
so because Chapter XXXII of the Code
of Criminal Procedure, 1973,
prescribes the process and the
procedure to be followed for
execution of sentence of death
and/or other sentences awarded to
convicts. We may in particular refer
to Sections 417, 418, 472 and 420
CrPC which deal with the power to
appoint place of imprisonment of the
convict, the execution of sentence
of imprisonment and the direction of
warrant for execution as also the
persons with whom the same has to be
lodged:
10.1 Section 418 of the Code in
particular deals with execution of
sentence imprisonment and inter alia
empowers and obliges the court
passing the sentence to forthwith
forward a warrant to the jail or
other place in which he is, or is to
be, confined, and, unless the
accused is otherwise confined in
such jail or other place to forward
him to such jail or other place with
a warrant. In terms of sub-section
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(2) of Section 418, where the
accused is not present in the court
when sentence of imprisonment as is
mentioned in subsection (1) is
pronounced, the court is required to
issue a warrant for his arrest for
the purpose of forwarding him to
jail or other place in which he is
to be confined and in such cases the
sentence shall commence on the date
of his arrest. There is thus no
gainsaying that upon conviction of
an accused and sentence of
imprisonment awarded to him, the
court concerned is expected to
commit him to jail in terms of a
warrant that would authorities him
confinement for the period he is to
undergo such imprisonment. We have
no reason to believe that this
procedure is not followed invariably
in all such cases where the convict
is not present before the court
concerned and is required to be
committed to imprisonment for
undergoing the sentence.
10.2 We also believe that the
process of issuing warrant to
apprehend the convict is followed
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diligently in keeping with the
spirit underlying Section 418 CrPC.
10.3 The difficulty, in our opinion,
arises when the warrants so issued
by the court concerned remain
unexecuted. This happens not only in
cases where the accused has been
convicted and sentenced by the trial
court but also where an appeal or
revision preferred against the
conviction is eventually dismissed
by the High Court. There is no
manner of doubt that even in such
cases the court is under an
obligation after receipt of an
intimation about the dismissal of
the appeal or revision preferred by
the convicts, to follow the
procedure under Section 418 CrPC for
apprehension of the accused, in case
he has not surrendered voluntarily,
and to commit him to jail to undergo
the sentence awarded to him.
Experience, however, shows that when
warrants are forwarded to the police
for execution the same remain
unexecuted for years as noticed by
us in the case at hand where despite
the dismissal of the appeal filed by
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two of the life convicts, held
guilty of a double murder, had
remained at large for considerably
long period."
12.1 The single Judge of Kerala High Court in
case of Jain Babu Vs. K.J. Joseph, reported in
2009(1) Crimes (HC) 629, observed that if the
accused is not on bail, execution of the sentence
cannot be suspended under section 389(3) Cr.P.C.
to enable him to prefer an appeal. The Apex Court
has further dealt with the situation, where
during trial the accused is exempted from
personal attendance, and judgment is pronounced
in his absence. Para-30 of the said judgment is
quoted hereunder for ready reference:
"30. If the accused is not on bail,
execution of the sentence cannot be
suspended under Section 389(3)
Cr.P.C to enable an accused to
prefer an appeal. The courts will be
obliged to straight away execute the
sentence. This may amount to denial
of the right of an accused to get
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the sentence suspended to enable him
to prefer an appeal, it is
apprehended by some counsel. I find
no merit in this apprehension. In a
case where the accused is exempted
under Section 205 Cr.P.C and the
judgment of conviction is pronounced
in his absence just, reasonable and
orderly procedure mandates that the
court must direct the accused to
appear before court on a specified
day for execution of sentence.
Imbibing the mandate of Section
389(3) Cr.P.C, any reasonable
Magistrate must post the case for
appearance of the accused only on
such a date, which will ensure that
the accused gets reasonable time to
prefer an appeal in the meantime.
Further, I am unable to accept the
contention that the language of
Section 389(3) Cr.P.C would bar the
suspension of sentence in a 138
prosecution, when the presence of
the accused is exempted under
Section 205 Cr.P.C. Under Section
389(3) Cr.P.C. when the accused is
on bail, the sentence can be
suspended. It will be succumbing to
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the tyranny of linguistic
technicality to assume that when a
court has chosen to exempt an
accused from personal appearance and
the obligation to seek bail, he will
not be entitled to the benefit or
advantage to which a person released
on bail will be entitled to. The
expressions "being on bail" and "is
on bail" appearing in Section 389(3)
(i) and (ii) Cr.P.C. must be read
and understood reasonably to include
an accused from whom bail has not
been demanded at all and who enjoys
his freedom. A judicial functionary
who is unable to find space to
extend the benefit of Section 389(3)
Cr.P.C to an accused who enjoys his
freedom, who is not in custody, who
has not been directed even to offer
bail and who has been exempted from
personal appearance under Section
205 Cr.P.C is definitely missing the
woods for the trees. He lacks
orientation in human rights
jurisprudence and does lack the
training to jump over insignificant
fences. Sentence imposed on an
exempted accused, in whose absence
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judgment is pronounced need not be
executed till the next date of
posting. On such next date he must
be directed to appear in person or
produce order of suspension if any
from the appellate court. An
exempted accused who has been
directed only to appear to receive
judgment must be held to be a person
to whom the benefit of Section
389(3) Cr.P.C is available, he
having been exempted already from
the obligation to appear and offer
bail. This apprehension is thus
found to be without substance."
13. The judgment of the trial Court
acquitting the wife of the applicant, while
convicting and sentencing him for simple
imprisonment of one year with the order of
compensation to be paid amounting to
Rs.2,11,662/- within a period of 30 days of the
order and in default to the payment of
compensation amount further three months simple
imprisonment, notes that the accused no.2 was not
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present before the Court, when the judgment was
pronounced.
14. Section 418(2) of Cr.P.C. provides that
where the accused is not present in Court when he
is sentenced to such imprisonment as is mentioned
in sub-section (1), the Court shall issue a
warrant for his arrest for the purpose of
forwarding him to the jail or other place in
which he is to be confined; and in such case, the
sentence shall commence on the date of his
arrest. Section 419 of Cr.P.C. refers that every
warrant for the execution of a sentence of
imprisonment shall be directed to the officer in
charge of the jail or other place in which the
prisoner is, or is to be, confined. The impugned
order of the 7th Additional District and Sessions
Judge, Ahmedabad (Rural) does not notes as to
whether the warrant for execution of sentence had
been executed, though ordered by the Court. The
warrant was for bringing him before the Court
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convicting.
14.1 Section 389(3) of Cr.P.C., expresses
that if the convicted person satisfies the Court
by which he is convicted, that he intends to
present an appeal, the Court shall, where such
person, being on bail, is sentenced to
imprisonment for a term not exceeding three
years, or, where the offence of which such person
has been convicted is a bailable one, and he is
on bail, order that the convicted person be
released on bail, unless there are special
reasons for refusing bail, for such period as
will afford sufficient time to present the appeal
and obtain the orders of the appellant Court
under sub-section (1) of section 389 of Cr.P.C.,
and the sentence of imprisonment shall, so long
as he is so released on bail, be deemed to be
suspended. But, in a case, where the order of
sentence has been passed in his absence and non-
bailable warrant is not executed, and as referred
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hereinabove noted in the case of Jain Babu
(supra), that when the presence of the accused is
exempted under Section 205 Cr.P.C. and when the
accused is on bail, then under the scope of
section 389(3) Cr.P.C., the sentence can be
suspended.
14.2 In the referred judgment of Jain Babu
(supra), the expressions "being on bail" and "is
on bail" appearing in Section 389(3) (i) and (ii)
Cr.P.C. is said to be read and understood
reasonably to include an accused from whom bail
has not been demanded at all and who enjoys his
freedom. Further observations leads to the
judicial functionary unable to find space to
extend the benefit of Section 389(3) Cr.P.C to an
accused who enjoys his freedom, who is not in
custody, who has not been directed even to offer
bail and who has been exempted from personal
appearance under Section 205 Cr.P.C. It has been
noted that the sentence imposed on an exempted
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accused, in whose absence judgment is pronounced
need not be executed till the next date of
posting, and on such next date he must be
directed to appear in person or produce order of
suspension, if any, from the appellate court.
Further it has been noted that an exempted person
who has been directed only to appear to receive
judgment must be held to be a person to whom the
benefit of Section 389(3) Cr.P.C is available.
15. In view of the observation made in the
case of Ishwarbhai Hirabhai Chunara (supra), this
Court also deems fit to grant an opportunity to
the applicant-accused to appear before the
learned 10th Additional Judicial Magistrate, First
Class, Ahmedabad (Rural), and on the date of
appearance, it would be open for the applicant to
file an application under section 389(3) Cr.P.C.
making a prayer for provisional bail to enable
him to prefer Criminal Appeal before the Sessions
Court against the conviction and sentence. The
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delay condonation application, if necessary, may
again be preferred and reheard on merits.
16. In view of the same, the non-bailable
warrant, which has been issued in view of the
conviction to face the sentence is converted into
bailable warrant of Rs.10,000/-. Further, the
applicant is also directed, and as ordered by the
trial Court, to deposit the compensation amount
of Rs.2,11,662/-, on or before the date of
appearance before the concerned trial Court.
17. The application stands disposed of.
Direct service is permitted.
(GITA GOPI,J)
Pankaj
