Janakbhai Madhubhai Hada vs State Of Gujarat
2025 Latest Caselaw 246 Guj

Gujarat High Court

Janakbhai Madhubhai Hada vs State Of Gujarat on 7 May, 2025

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                             R/SCR.A/6724/2025                                         ORDER DATED: 07/05/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO.                                 6724 of
                                                  2025

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                                                   JANAKBHAI MADHUBHAI HADA
                                                             Versus
                                                    STATE OF GUJARAT & ANR.
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                       Appearance:
                       MR KAVAN K PATEL(11303) for the Applicant(s) No. 1
                       MR MANAN MEHTA, APP for the Respondent(s) No. 1
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                            CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI

                                                           Date : 07/05/2025

                                                              ORAL ORDER

1. At the outset, learned advocate Mr. Patel has confined this petition for conversion of non- bailable warrant issued by the learned Court concerned in to bailable warrant only.

2. Rule. Learned APP waives service of notice of rule for respondent - State of Gujarat.

3. By way of the present petition, the petitioner seeks to convert non-bailable warrant issued by learned 5th Additional Chief Judicial Magistrate, Ahmedabad (Rural) in Criminal Case No.13063 of 2019 while passing judgment and order dated 23.12.2024, into bailable warrant.

4. Heard learned advocates appearing for the respective parties.

5. Learned advocate submitted that the respondent no.2 herein had instituted complaint under Section

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138 of the Negotiable Instruments Act against the petitioner, wherein trial was proceeded further and ultimately at the end of day, an order of conviction has been passed and non-bailable warrant was issued against the petitioner at the time of passing of the impugned order, which is prayed to be converted into bailable warrant by filing this petition.

6. Learned advocate for the petitioner submitted that the issuance of non-bailable warrant straightaway at the time of passing the order of conviction is illegal and against provision of law and the learned trial Court ought to have issued bailable warrant to secure the presence of the petitioner. He submitted that the right of preferring appeal against the order is a statutory right available to the petitioner, however, as the non-bailable warrant is issued against the petitioner, the petitioner is left with no option, but to surrender himself to the jail authority pursuant to the non-bailable warrant issued by the trial court and that would amount to gross violation of Article 21 of the Constitution of India. Learned advocate for the petitioner prayed that non- bailable warrant issued by the learned trial Court be converted into bailable warrant so that the petitioner can avail appropriate remedy to file appeal before the higher forum.

7. In support of his contentions, learned advocate for the petitioner has heavily relied on the

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decision of the Coordinate Bench of this Court rendered in Special Criminal Application No.11631 of 2023 decided on 14th September, 2023 and prayed to allow the petition.

8. Learned Additional Public Prosecutor has vehemently opposed the prayer of the petitioner and requested this Court to dismiss the present petition.

9. I have heard the learned counsel appearing for the respective parties and gone through the material produced on record in detail.

10. At the outset, it is required to be noted that the issue involved in this petition is no more res integra and squarely covered by the decision of the Coordinate Bench of this Court rendered in Special Criminal Application (Quashing) No.9113 of 2016 in somewhat similar set of facts. The Coordinate Bench of this Court has, after considering the decision rendered by the Division Bench in the case of Sharad Jethalal Savla v. State of Gujarat [Criminal Misc. Application No.19862 of 2015 decided on 14th November, 2016] held as under :

"7. I am inclined to give one opportunity to the applicants herein to appear before the learned 4th Additional Chief Judicial Magistrate, Vadodara in person with their advocates. On the day and date the applicants herein appear before the learned Magistrate, it will be open for them to file an application under Section 389(3) of the Cr.P.C. for provisional bail to enable them to prefer a criminal appeal before the Sessions Court against the conviction and

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sentence. The criminal appeal before the Sessions Court could have been registered only after an appropriate order under Section 389(3) of the Cr.P.C. was passed by the trial Court.

8. In any view of the matter, the nonbailable warrant is converted into a bailable warrant of the sum of Rs.10,000/- (Rupees Ten Thousand only). The applicants are directed to appear before the Court concerned within a period of one week from today and shall furnish a bail of Rs.10,000/- each. If any such application is filed under Section 389(3) of the Cr.P.C., the Court concerned shall pass appropriate orders in accordance with law."

11. In view of the aforesaid, this Court is inclined to consider this petition on the following conditions:

(a) The petitioner shall approach the learned trial court in person with his advocate within a period of one week from the date of receipt of writ of this order;

(b) It will be open for the petitioner to avail appropriate remedy available under the law at the time of appearing before the learned trial Court to enable him to approach the higher forum against the impugned order and if such remedy is availed, the concerned court shall pass appropriate order in accordance with law.

(c) The petitioner shall file an undertaking before the court concerned to the effect that he will cooperative in the proceedings and

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non-adherence thereof will follow the consequences.

(d) The non-bailable warrant is hereby converted into bailable warrant for a sum Rs.10,000/-

(Rupees Ten Thousand only).

12. With the above observations and directions, the present petition stands allowed accordingly. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(DIVYESH A. JOSHI,J) LAVKUMAR J JANI