Gujarat High Court
Nareshbhai Maganbhai Bhambhaniya vs State Of Gujarat on 8 April, 2025
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R/CR.RA/335/2017 ORDER DATED: 08/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST CONVICTION) NO. 335
of 2017
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NARESHBHAI MAGANBHAI BHAMBHANIYA & ORS.
Versus
STATE OF GUJARAT
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Appearance:
MR PRATIK Y JASANI(5325) for the Applicant(s) No. 1,2,3
MR. HARDIK SONI, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 08/04/2025
ORAL ORDER
1. The present revision application is preferred under
Section 397 read with Section 401 of the Code of
Criminal Procedure, 1973 to assail the correctness and
validity of the judgment and order dated 12.1.2017
passed by the learned 5th Additional Sessions Judge,
Jamnagar in Criminal Appeal No. 21 of 2016 whereby
learned Appellate Court was pleased to dismiss the
appeal and confirm the order dated 30.1.2016 passed by
learned 3rd Additional Civil Judge and Chief Judicial
Magistrate Court, Jamnagar in Criminal Case No. 6785 of
2013 whereby the present revisionist- applicants were
convicted.
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2. The brief facts leading to filing of the present case is
that one Jiteshbhai Baraiya filed First Information Report
being C.R. No. 318/2013 before the Jamnagar City 'B'
Division Police Station for the offence punishable under
Sections 325, 324, 323, 5-04 and 114 of the Indian Penal
Code and Section 135(1) of the Gujarat Police Act against
the present revisionist-applicants.
3. Pursuant to the First Information Report, charge-
sheet came to be filed and subsequently charge came to
be framed and after looking to the evidence and hearing
the arguments of learned advocates for both the parties
in Criminal Case No. 6785 of 2013, the learned 3 rd
Additional Civil Judge and Chief Judicial Magistrate
Court, Jamnagar was pleased to convict and further order
the revisionist-applicants to undergo Simple
Imprisonment of six months with a fine of Rs.1000/- and
in default for offence punishable under Section 325.
Further, simple imprisonment for one month for the
offence punishable under Section 324 and 114 of the
Indian Penal Code. The applicants were also ordered to
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undergo Simple Imprisonment of three months with a fine
of Rs.500/- and in default, 15 days simple imprisonment
for the offence punishable under Section 323 of the
Indian Penal Code.
4. Being aggrieved and dissatisfied by the order passed
by the learned Chief Judicial Magistrate, Jamnagar, the
revisionist-applicants preferred an appeal being Criminal
Appeal No. 21 of 2016 before the 5th Additional Sessions
Judge, Jamnagar wherein the learned appellate Court was
pleased to reject the appeal preferred by the revisionist -
applicants. This Order by the learned appellate Court
confirming the order passed by the learned trial Court is
assailed in the present revision application.
5. Heard Mr. Pratik Jasani, learned advocate for the
revisionist applicants and Mr. Hardik Soni, learned
Additional Public Prosecutor for the respondent State.
6. The main crux of the arguments by Mr. Jasani is that
instead of assailing the conviction order on merits, it
would be in fitness of things if the sentence already
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undergone by the revisionist-applicants would have been
confined to sentence given by the learned trial Court. In
view of the same, Mr. Jasani, learned advocate for the
revisionist-applicants has requested to consider this
matter in appropriate manner. Therefore, according to
Mr. Jasani, the sentence of two days and five days
undergone by accused No.1 and accused Nos.2-3
respectively may be treated as adequate sentence. The
plea for treating the sentence undergone as sufficient
cannot be acceded to for, the same cannot be accepted as
it will be too lenient sentence to be justified and it would
mean virtually letting off the accused persons against
whom the offences have been held proved by both the
Court below and conviction and imposed is upheld by this
Court. At the same time, certain aspects deserve
consideration insofar as awarding sentence to the
accused-convicts is concerned. In the facts of this case,
the incident happened in the spur of the moment and the
injuries are trivial in nature. Further, a period of almost
12 years have gone.
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7. For taking the aforesaid view of enhancing of fine
imposed instead of requiring the accused persons to
undergo the imprisonment any further, the following
observations in the decision of this Court in Chandulal
alias Maganlal Devchand Vs D.B. Chavda, Superintendent
of Customs [1986 (1) GLR 500] may be notice which
adopted the similar course in the facts of that case. In
that case, the Court was dealing with the conviction and
sentence recorded for the offences under the Customs
Act, 1962. Taking into account the relevant factors for the
purpose of modification of sentence, it was stated,
"But in the given case, on peculiar facts as in
the instant case, the sentence awarded should
also be commensurate-with the gravity of the
offence. The court is to take into consideration
various factors such as the value of the goods
smuggled, the nature and extent of the role
played by the accused in the operation such as
whether he was brain behind the same or
whether he was a carrier or whether he was
person who placed his premises at the disposal
of the smugglers for storage of the goods. The
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age of the accused and the fact whether any
previous conviction was proved against him are
also relevant considerations. The delay in
launching proceedings, the length of the period
for which the accused was on bail would also be
a relevant fact or having bearing on the
question of sentence. This list is illustrative and
not exhaustive........
Looking to the value of the goods seized it
appears that it is not of a big amount. It is only
of Rs.16,940/-. It also indicates that he is not a
big smuggler. The fact remains that the said
goods were also confiscated. There is no
evidence on the record to show that the
petitioner is previously convicted. Further the
fact remains that the question of sending the
petitioner to jail arise after 12 years after the
commission of the offence when the accused is
of 71 years of age as he was enlarged on a bail
from the beginning. Under the circumstances, I
think that this is a fit case in view of the
peculiar circumstances of the case wherein it
will not be conducive to the ends of justice to
send the petitioner to jail after twelve years of
the commission of the offence. In my opinion
proper fine will meet the ends of justice, but the
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fine should be increased in lieu of remittance of
imprisonment. The trial Court has imposed the
sentence of one months R.I. and a fine of
Rs.3000/- in default further R.I. for one month."
8. The decision in Chandulal alias Maganlal (supra),
serve as a guiding precedent. The incident and the issue
was trivial, which led to the offences which were product
of particular passionate moments. Because of the passage
of long time, the Court would be persuaded to desist from
sending them back to jail as part of serving sentence.
However, the law has to take its course and they be made
to pay higher amount of fine and to suffer the sentence
accordingly. It may be counter-productive to the ultimate
object of sentencing in the administration of justice and
may not be conducive to notion of justice if after more
than two decades, the applicants-accused are to be sent
back in jail in light of the circumstances highlighted in
facts of the case. Having due regard to the factors and
aspects stated and agitated by learned advocate for the
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applicant, it would be conducive to and accord with
justice if the sentence already undergone by each of the
accused is treated to be adequate in so far as the
sentence of imprisonment imposed against each of them
is concerned, however, at the same time, the sentence in
respect of amount of fine payable shall stand modified by
increasing the amount of fine. In the facts and
circumstances of the case, it will be proper to impose fine
more than imposed by the Trial Court in respect of each
of the offence.
9. Accordingly, the judgment and order passed by the
learned trial Court and confirmed by the learned
Appellate Court recording conviction and sentence
against each of the applicant-accused is hereby upheld
and maintained. However, the sentence part is modified
by directing that as far as the imprisonment is concerned,
the period already undergone in jail by each of the
accused persons upto their release on bail shall be
treated as adequate and none of the accused would be
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required to undergo further imprisonment in respect of
the conviction recorded against them.
10. Applicant Nos.1, 2 and 3 shall be required to pay
additional fine of Rs.15,000/- (Rupees Fifteen Thousand
only) in respect of his conviction under Section 323 and
324 of the Indian Penal Code.
11. The enhanced amount of fine as above as part of
sentence shall be paid by each of the applicant within one
month from the date of receipt of Certified Copy of this
judgment and order. It is further clarified that except
modification as above in respect of undergoing
imprisonment, and the enhancement in the amount of fine
payable as above, rest of the sentence, namely the default
imprisonment clause shall remain unaltered. Therefore, if
any of the applicants fails to pay the increased amount of
fine within the time ordered as above, each of them will
be liable to undergo the default imprisonment as provided
in the judgment and order dated 30.1.2016 passed by
learned 3rd Additional Civil Judge and Chief Judicial
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Magistrate Court, Jamnagar in Criminal Case No. 6785 of
2013 and confirmed by the judgment and order dated
12.1.2017 passed by the learned 5th Additional Sessions
Judge, Jamnagar in Criminal Appeal No. 21 of 2016 and
they shall be arrested and detained to be sent to custody.
12. The revision application is dismissed except as
quantified hereinabove. The Rule is discharged subject to
the above qualification and modification in the sentence
part as above.
(PRANAV TRIVEDI,J)
SAJ GEORGE
