Gujarat High Court
Karthik Pharma vs State Of Gujarat on 20 June, 2025
NEUTRAL CITATION
R/SCR.A/8398/2025 ORDER DATED: 20/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 8398 of 2025
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KARTHIK PHARMA & ANR.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR BAKUL S PANCHAL(3676) for the Applicant(s) No. 1,2
MS MANSI S PANCHAL(12033) for the Applicant(s) No. 1
MR RN SHAH, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 20/06/2025
ORAL ORDER
[1.0] By way of present petition under Articles 14, 21, 226 and 227 of
the Constitution of India read with Section 528 of the BNSS, the
petitioner has prayed for the following relief:
"(B) Be pleased to quash and set aside the judgment and
order dated 01.02.2025 passed by the learned 33 rd Additional
Chief Judicial Magistrate, Special Negotiable Instruments Act
Court, Ahmedabad City in Criminal Case No.44280/2017,
whereby the petitioner was convicted under Section 138 of
the Negotiable Instruments Act, 1881 and sentenced to one
year of simple imprisonment alongwith a direction to pay
compensation of Rs.5,81,185/- to the complainant;"
[2.0] At the outset it is worth to mention that the present petitioner
is convicted by learned 33rd Additional Chief Judicial Magistrate,
Special Negotiable Instruments Act Court, Ahmedabad City passed in
Criminal Case No.44280/2017 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 absent,
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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 528 of the BNSS. 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 event, if
the petitioner wants to challenge any order passed by the learned trial
Court then he has to avail statutory remedy rather than straightway
approaching this Court under Articles 14, 21, 226 and 227 of the
Constitution of India read with Section 528 of the BNSS as per the
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R/SCR.A/8398/2025 ORDER DATED: 20/06/2025
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sweet will of the petitioner - accused.
[3.0] 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.
[4.0] 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 528 of the BNSS (Section 482 of the CrPC) has to
be exercised sparingly with circumspection and in rare case 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 528 of the BNSS (Section 482 of
the CrPC) 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 528 of the BNSS (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
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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 528 of the
BNSS (Section 482 of the CrPC).
[5.0] 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 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.
[6.0] 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
