Gujarat High Court
Ashok Kumar Kantilal vs State Of Gujarat on 1 October, 2025
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Reserved On : 02.07.2025
Pronounced On : 01/10/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST CONVICTION) NO. 615
of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE L. S. PIRZADA
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Approved for Reporting Yes No
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ASHOK KUMAR KANTILAL
Versus
STATE OF GUJARAT
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Appearance:
MR JV JAPEE(358) for the Applicant(s) No. 1
MR HK PATEL APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE L. S. PIRZADA
CAV JUDGMENT
Date : 01/10/2025
1. The present revision application has been preferred by
the present appellant-original accused, challenging the
order dated 30.07.2005 passed by the learned Presiding
Officer, Fast Track Court No.1, Bhavnagar in Criminal
Appeal No. 49 of 2002, dismissing the conviction appeal of
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the present applicant and confirming the judgment of
conviction dated 26.11.2002 passed by the learned Judicial
Magistrate First Class, Vallabhipur (Dist. Bhavnagar) in
Criminal Case No. 284 of 1996, convicting the present
applicant -accused for the offences punishable under
Sections 279, 337, 338, 304-A and 427 of the Indian Penal
Code and Sections 177, 184 and 134 of the Motor Vehicles
Act and sentencing him to undergo 6 months' rigorous
imprisonment for the offence punishable under Section 279
of the Indian Penal Code and also to pay a fine of Rs.500/-,
in default, to undergo 15 days' simple imprisonment. For
the offence punishable under Section 337 of the Indian
Penal Code, he was sentenced to undergo simple
imprisonment for 3 months and also to pay a fine of Rs.
300/-, in default, to undergo 7 days' simple imprisonment.
For the offence punishable under Section 338 of the Indian
Penal Code, he was sentenced to undergo rigorous
imprisonment for 6 months and also to pay a fine of Rs.
500/-, in default, to undergo 15 days' simple imprisonment.
For the offence punishable under Section 304(A) of the
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Indian Penal Code, he was sentenced to undergo rigorous
imprisonment for 1 year and also to pay a fine of
Rs.1,000/-, in default, to undergo 1 month's simple
imprisonment. For the offence punishable under Section
427 of the Indian Penal Code, he was sentenced to undergo
simple imprisonment for 1 month and also to pay a fine of
Rs.100/-, in default, to undergo 4 days' simple
imprisonment. For the offences under Sections 177 and 184
of the MV Act, the same being covered by Section 279 of the
IPC, no separate sentence was awarded. For the offence
under Section 134 of the MV Act, he was sentenced to pay a
fine of Rs. 100/-, in default, to undergo 4 days' simple
imprisonment.
2. Heard learned advocate Mr. J.V. Jappee for the
applicant -accused. It is submitted by him that the learned
trial Court as well as the Appeal Court have not properly
appreciated the oral evidence and have erred in coming to
the conclusion that the present applicant was driving his ST
bus in a rash and negligent manner and thereby, committed
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the offence. It is further submitted that from the evidence, it
has come on record that the motor-cycle was being driven
by the witnesses on the wrong side and dashed with the ST
bus, and because of this, the accident took place and there
was no rash and negligent driving on the part of the present
applicant. It is further submitted that the conductor of the
ST bus has also been examined as a witness and has
specifically stated that the motor-cycle was coming on the
wrong side and because of that, the incident took place.
Despite this fact, the said evidence has not been properly
considered by the Courts below and hence, the judgments of
the learned trial Court and the Appeal Court are required
to be quashed and set aside.
2.1. Further, learned advocate for the applicant submitted
that as per Section 197(1) of the Code of Criminal
Procedure, at the time of the accident, the present
applicant, who was a Government servant, was driving a
Government vehicle and during the course of discharge of
his official duty, the accident took place. Therefore, sanction
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for prosecution was necessary, but the prosecution has not
obtained any sanction and on this legal point also, the
present revision application is required to be allowed.
Further, in support of his submissions, reliance is placed
upon the judgment of the Hon'ble Apex Court in the case of
P.K.Pradhan Vs. State of Sikkim, reported in (2001) 6 SCC
3. On the other hand, learned A.P.P. Mr.H.K. Patel has
vehemently opposed the present revision application. It is
submitted that in the present case, there are concurrent
findings of conviction recorded by both the Magistrate Court
as well as the Sessions Court and considering the findings
recorded by both the Courts below, no illegality as such, has
been committed. Hence, the present revision application is
devoid of merits. It is further submitted that the present
applicant was the driver and his duty was only to drive the
ST bus, and for that, the bar under Section 197(1) of the
Code of Criminal Procedure would not come into play. It is
also submitted that this plea was never raised before the
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learned trial Court or the Appellate Court and for the first
time, it has been raised in the present revision application
and therefore also, the present revision application deserves
to be dismissed.
4. The factual matrix of the case is required to be
considered at this stage. As per the complaint, the FIR came
to be lodged by Batukbhai Vashrambhai before Vallabhipur
Police Station, 'A' Division, Bhavnagar, on 12.09.1996. As
per the case of the prosecution, at about 15:45 hours on the
Bhavnagar-Ahmedabad Highway near Limda Dhal, the
accused was driving ST bus bearing registration No. GJ-18-
V-272 from Barwala to Vallabhipur in a rash and negligent
manner and dashed with the motor-cycle of the complainant
bearing registration No.GJ-4B-663. Because of that, the
complainant Batukbhai Vashrambhai sustained fracture
injuries, witness Vipul Vashrambhai sustained injuries on
his right leg and Jashuben, wife of the complainant, also
sustained serious injuries. She was taken to Bhavnagar
Hospital for further treatment, where during the course of
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treatment, she succumbed to the injuries. Pursuant thereto,
an FIR came to be registered vide C.R. No.106 of 1996 at
Vallabhipur Police Station for the offences punishable under
Sections 279, 337, 338, 304-A and 427 of the Indian Penal
Code and Sections 177, 184 and 134 of the Motor Vehicles
Act. Thereafter, investigation was carried out and on
completion of the same, a charge-sheet came to be filed
before the learned trial Court being Criminal Case No.284
of 1996. The learned Trial Court was pleased to convict the
present applicant-accused for the aforesaid offences and
passed judgment and order of conviction on 26.11.2002.
5. Being aggrieved by the said judgment and order of
conviction and sentence passed by the learned JMFC,
Vallabhipur, the accused preferred an appeal before the
Court of the learned District and Sessions Judge,
Bhavnagar, vide Criminal Appeal No. 49 of 2002. The said
appeal came to be dismissed and the judgment of conviction
passed by the Trial Court was confirmed on 30.07.2005.
Against the said order, the present revision application has
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been preferred under Section 397 of the Code of Criminal
Procedure.
6. After hearing the rival submissions of both the parties
and perusing the record and proceedings, it is required to
be noted that the scope of revision under Section 397 read
with Section 401 of the Code of Criminal Procedure is very
limited. The revisional powers are restricted to calling for
and examining the record of any lower Court for the
purpose of satisfying itself as to the legality, propriety, or
regularity of any proceedings or order made in the case. The
object of this provision is to correct a patent defect or
jurisdictional error or perversity which has crept in the
proceedings.
7. However, the High Court, in revision, exercises
supervisory jurisdiction of a restricted nature. It does not
re-appreciate the evidence as a second appellate Court for
the purpose of determining whether the concurrent findings
of fact reached by the learned Magistrate and the learned
Sessions Judge were correct. In this regard, it is appropriate
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to refer to the decision of the Hon'ble Apex Court in case of
State of Kerala Vs. Puttumana Illath Jathavedan
Namboodiri, reported in (1999) 2 SCC 452, wherein it is
observed as under:
"5. Having examined the impugned Judgement of
the High Court and bearing in mind the contentions
raised by the learned counsel for the parties, we
have no hesitation to come to the conclusion that in
the case in hand, the High Court has exceeded its
revisional jurisdiction, In its revisional jurisdiction,
the High Court can call for and examine the record
of any proceedings for the purpose of satisfying
itself as to the correctness, legality or propriety of
any finding, sentence or order. In other words, the
jurisdiction is one of Supervisory Jurisdiction
exercised by the High Court for correcting
miscarriage of justice. But the said revisional power
cannot be equated with the power of an Appellate
Court nor can it be treated even as a second
Appellate Jurisdiction. Ordinarily, therefore, it
would not be appropriate for the High Court to re-
appreciate the evidence and come to its own
conclusion on the same when the evidence has
already been appreciated by the Magistrate as well
as the Sessions Judge in appeal, unless any glaring
feature is brought to the notice of the High Court
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which would otherwise tantamount to gross
miscarriage of justice. On scrutinizing the impugned
Judgement of the High Court from the aforesaid
standpoint, we have no hesitation to come to the
conclusion that the High Court exceeded its
jurisdiction in interfering with the conviction of the
respondent by re-appreciating the oral evidence.
The High Court also committed further error in not
examining several items of evidence relied upon by
the Additional Sessions Judge, while confirming the
conviction of the respondent. In this view of the
matter the impugned Judgement of the High Court
is wholly unsustainable in law and we, accordingly
set aside the same. The conviction and sentence of
the respondent as passed by the Magistrate and
affirmed by the Additional Sessions Judge in
appeal is confirmed. This appeal is allowed. Bail
bonds furnished stand cancelled. The respondent
must surrender to serve the sentence."
8. The Hon'ble Apex Court in the case of Malkeet Singh
Gill Vs. State of Chhattisgarh, reported in (2022) 8 SCC
204, has observed as under:
"10. Before adverting to the merits of the
contentions, at the outset, it is apt to mention that
there are concurrent findings of conviction arrived
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at by two courts after detalled appreciation of the
material and evidence brought on record. The High
Court in criminal revision against conviction is not
supposed to exercise the jurisdiction alike to the
appellate court and the scope of interference in
revision is extremely narrow. Section 397 of the
Criminal Procedure Code (in short "CrPC") vests
jurisdiction for the purpose of satisfying itself or
himself as to the correctness, legality or propriety
of any finding, sentence or order, recorded or
passed, and as to the regularity of any
proceedings of such Inferior court. The object of the
provision is to set right a patent defect or an error
of jurisdiction or law. There has to be well-founded
error which is to be determined on the merits of
individual case. It is also well settled that while
considering the same, the Revisional Court does
not dwell at length upon the facts and evidence of
the case to reverse those findings."
9. In light of the aforesaid proposition of law, the factual
situation of the present applicant is required to be
examined. In the present case, it is an undisputed fact that
on the date of the accident, the present applicant was
driving the ST bus and the said bus dashed with the motor-
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cycle which was being driven by the complainant.
10. Further, in the Trial Court, the prosecution examined
witness Dinesh Jaisurbhai at Exh. 6, PW-1, who happened
to be the conductor of the said ST bus. As per his
deposition, he stated that the bus was being driven by
Ashokbhai Kantilal and at the time of the incident, one
scooter came from the Vallabhipur side and the persons on
the scooter were talking with a tempo driver while driving.
Subsequently, they lost balance of the scooter and there
was a lady and one child also on the scooter. As the rider
lost control of the scooter, it dashed with the bus and the
incident took place. So far as other witnesses are concerned,
the complainant - Batukbhai Vashrambhai has been
examined at Exh. 8, Vipulbhai Vashrambhai at Exh. 3,
Parshotambhai Nanubhai at Exh. 12, Jivanbhai at Exh. 13
and another witness Ghelabhai Mohanbhai at Exh. 29. All
these witnesses are eye-witnesses. The medical witnesses,
namely, Dr. Rameshbhai Ramjibhai at Exh. 15, Dr.
Hasmukhlal Kantilal Parekh at Exh. 17, and Dr.
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Jitendrabhai at Exh. 23, have also been examined. The
post-mortem report has been produced at Exh. 19, whereas
the medical certificates have been produced at Exhs. 16 and
24. The Investigating Officer has been examined at Exh. 33.
11. The learned trial Court, after considering the evidence
produced, came to the conclusion that the present
applicant, who was driving the ST bus at the time of the
accident, had not taken due care. The same was established
from the evidence of the witnesses, which showed that the
bus was being driven in a rash and negligent manner.
Except for the deposition of the conductor, the other
witnesses have specifically stated that there was rash and
negligent driving by the driver of the ST bus. Considering
the fact that one lady succumbed to injuries and two
persons sustained fractures, the learned Trial Court, after
appreciating the evidence, came to the conclusion that the
prosecution had proved its case beyond reasonable doubt.
12. The said judgment of conviction was assailed by
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preferring an appeal. In the appeal also, the learned
Sessions Court, after considering, appreciating and re-
appreciating the evidence, recorded the findings that no
illegality had been committed by the Court below while
recording the conviction, and accordingly dismissed the
appeal.
13. As regards the only legal defence taken, namely, that
the conviction is barred under Section 197(1) of the Code of
Criminal Procedure and that no sanction has been recorded
or obtained by the Investigating Officer, it is noted that this
plea has been raised for the first time before this Court.
Further, looking to Section 197(1), it applies only if the acts
complained of are connected with the discharge of official
duty and notice is required to be attached to the office. In
the present case, it appears from the record that the present
appellant-original accused was driving his ST bus in a rash
and negligent manner, and because of that, the incident
took place. Hence, Section 197(1) of the Code of Criminal
Procedure not come into play. Hence, considering this, I do
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not find any reason to interfere with the findings recorded
by both the Courts below.
14. So far as the other arguments advanced by the learned
advocate for the applicant are concerned, it is submitted
that considering the fact that the incident took place way
back in 2006 and at that time, the age of the present
applicant was 36 years and at present he is more than 60
years old, it is submitted that the sentence may be modified
to that extent.
15. Considering the aforesaid, so far as conviction of
applicant is concerned, the same is required to be
confirmed. However, the sentence is required to be modified.
Considering the age of the present applicant, the sentence
under Section 279 of the IPC is modified and reduced to
three months, under Section 338 of the IPC the sentence is
also reduced to three months and so far as Section 304-A of
the IPC is concerned, the sentence is reduced to three
months. The rest of the sentences are to be maintained. All
the sentences shall run concurrently and the period of
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sentence undergone by the present applicant shall be given
a set-off under the provisions of Section 428 of the Code of
Criminal Procedure.
16 Accordingly, the sentence is modified to the aforesaid
extent only. Considering the same, the present revision
application is hereby rejected. The bail bond furnished by
the present applicant-accused stands cancelled and the
present applicant-accused shall surrender before the
concerned Court to serve the sentence within 4 weeks from
the date of passing of this order. Rule is discharged.
(L. S. PIRZADA, J)
Hitesh
