[Cites 26, Cited by 0]
Gujarat High Court
Aksharbhai Rameshbhai Baraiya vs State Of Gujarat on 23 April, 2026
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.RA/908/2026 ORDER DATED: 23/04/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 908 of 2026
With
R/CRIMINAL REVISION APPLICATION NO. 918 of 2026
With
R/CRIMINAL REVISION APPLICATION NO. 921 of 2026
With
R/CRIMINAL REVISION APPLICATION NO. 651 of 2026
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AKSHARBHAI RAMESHBHAI BARAIYA & ORS.
Versus
STATE OF GUJARAT
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IN CRIMINAL REVISION APPLICATION NO.908 OF 2026
Appearance:
MR. KULDEEP D VAIDYA(7045) for the Applicant(s) No. 1,2,3,4,5,6,7
MR PRANAV DHAGAT, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
IN CRIMINAL REVISION APPLICATION NO.918 OF 2026
Appearance:
MR. KULDEEP D VAIDYA(7045) for the Applicant(s) No. 1,2,3
MR PRANAV DHAGAT, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
IN CRIMINAL REVISION APPLICATION NO.921 OF 2026
Appearance:
MR. KULDEEP D VAIDYA(7045) for the Applicant(s) No. 1
MR PRANAV DHAGAT, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
IN CRIMINAL REVISION APPLICATION NO.651 OF 2026
Appearance:
MR RATHIN P RAVAL for the Applicant(s) No. 1
MR PRANAV DHAGAT, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 23/04/2026
COMMON ORDER
1. RULE. Learned Additional Public Prosecutor waives
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service of notice of Rule on behalf of the respondent -
State.
2. In all the applications, a common issue is raised
contradicting the invocation of The Gujarat Public
Examination (Prevention of Unfair Means) Act, 2023
(referred to in short as 'the Examination Act') which had
come in force on 03.03.2023, raising a contention that
the Act has come into force after the alleged examination
and therefore, the Act cannot be applied retrospectively.
3. Learned advocate appearing for the applicant in Criminal
Revision Application No.651 of 2026 Mr. Rathin P. Raval
and learned advocate appearing for the respective
applicants in the remaining applications Mr. Kuldeep D.
Vaidya have made submissions to the effect that the
learned 4th Additional District and Sessions Judge,
Bhavnagar was moved under Section 227 of the Code of
Criminal Procedure, 1973 (in short 'Cr.P.C.') which is
equivalent to Section 250 of the Bharatiya Nagarik
Suraksha Sanhita, 2023 making a prayer to discharge the
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applicants for the offences punishable under Sections
12(1), 12(3) and 12(4) of the Examination Act, however,
however, the learned Sessions Judge rejected the same.
4. The applicants of all the matters have been made
accused in the First Information Report registered at
Bharatnagar Police Station, District Bhavnagar registered
on 14.04.2023 as C.R. No.11198068230274 of 2023. The
offences were under Sections 406, 409, 419, 420, 465,
467, 468, 471, 120B, 34 and 201 of the Indian Penal Code
(IPC), under Section 66(D) of the Information Technology
Act, 2000 (referred to in short as 'the IT Act') and under
Sections 12(1), 12(3) and 12(4) of the Examination Act.
The charge-sheet No.24 of 2023 came to be filed by the
Investigating Officer which culminated into Sessions Case
Nos.64 of 2023 and 66 of 2023.
5. The allegation is that the person who was the original
candidate and the person who was appearing in the
examination as a dummy candidate both have been
made as accused in the matter by arraigning them as an
accused through the provisions of the Sections of IPC,
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under the IT Act and the Examination Act.
6. The role of the various applicants surfacing on record are
as under :-
Criminal Revision Application No.908 of 2026
Applicant Examination Exam Date Role
Aksharbhai Bin Sachivalay 24.04.2022 Appeared as Dummy
Rameshbhai Baraiya Clerk 2018-19
Dineshrai Batukrai MPHW-2021-22 26.06.2022 Dummy appeared on
Pandya his behalf
Sagar Balashankar MPHW-2021-22 26.06.2022 Dummy appeared on
Pandya his behalf
Nilesh MPHW-2021-22 26.06.2022 Appeared as Dummy
Ghanshyambhai jani
Jaydeep Bhadrshbhai MPHW-2021-22 26.06.2022 Appeared as Dummy
Dhandhalya
Kiranbhai Dineshbhai MPHW-2021-22 26.06.2022 Dummy appeared on
Baraiya his behalf
Hardikbhai Shantilal Gram Sevak 18.02.2017 Dummy appeared on
Baraiya 2017 his behalf
Criminal Revision Application No.918 of 2026
Applicant Examination Exam Date Role
Rameshbhai Bachubhai MPHW-2021-22 26.06.2022 Dummy appeared on
Baraiya his behalf
Ramnikbhai MPHW-2021-22 26.06.2022 Dummy appeared on
Bhanushankarbhai his behalf
Baraiya
Kalpeshbhai Mavjibhai MPHW-2021-22 26.06.2022 Dummy appeared on
Pandya his behalf
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Criminal Revision Application No.921 of 2026
Applicant Examination Exam Date Role
Jignaben Jagdishbhai STD-10 (S.S.C.) 30.03.2022 Dummy appeared on
Dhandhalya 2022 her behalf
Criminal Revision Application No.651 of 2026
(Kalpeshbhai Bhupatbhai Jani)
Date of Exam Examination Allegedly on behalf of
12.02.2017 Junior Clerk Maheshbhai Ramjibhai Chauhan
19.02.2017 Health (MPHW) Ramnikbhai Ramjibhai Baraiya
2022-2023 Junior Clerk No examination was given (Neither
the original candidate nor the alleged
dummy candidate have appeared.
They were absent
7. Both the learned advocates submitted that the
Examination Act came in to force on 03.03.2023 and the
Examination was conducted prior to the Act coming into
force, stating that all the applicants are protected by the
fundamental rights as guaranteed under Article 20 of the
Constitution of India, which reads as under :-
"20. Protection in respect of conviction for
offences. - (1) No person shall be convicted of any
offence except for violation of a law in force at the time of
the commission of the act charged as an offence, nor be
subjected to a penalty greater than that which might have
been inflicted under the law in force at the time of the
commission of the offence.
(2) No person shall be prosecuted and punished for the
same offence more than once.
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(3) No person accused of any offence shall be compelled
to be a witness against himself."
8. Learned advocate Mr. Rathin P. Raval has relied on the
judgement of the Apex Court in the case of Assistant
Excise Commissioner, Kottayam and Others v.
Esthappan Cherian and Another reported in 2021
(10) SCC 210 and submitted that the rule or law cannot
be construed as retrospective unless it expressly or
manifests an intention to the contrary. While expressing
the view in Paragraph 14 of the decision, a reference has
been made to the case of Commissioner of Income
Tax v. Vatika Township Pvt. Ltd. reported in 2015 (1)
SCC 1, where it has been observed as under :-
"14. There is profusion of judicial authority on the proposition
that a rule or law cannot be construed as retrospective unless
it expresses a clear or manifest intention, to the contrary. In
Commissioner of Income Tax v Vatika Township this court,
speaking through a Constitution Bench, observed as follows :
"31. Of the various rules guiding how a legislation has
to be interpreted, one established rule is that unless a
contrary intention appears, a legislation is presumed
not to be intended to have a retrospective operation.
The idea behind the rule is that a current law should
govern current activities. Law passed today cannot
apply to the events of the past. If we do something
today, we do it keeping in view the law of today and in
force and not tomorrow's backward adjustment of it.
Our belief in the nature of the law is founded on the
bed rock that every human being is entitled to arrange
his affairs by relying on the existing law and should not
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find that his plans have been retrospectively upset.
This principle of law is known as lex prospicit non respicit :
law looks forward not backward. As was observed in Phillips
vs. Eyre reported in (1870) 6 LR QB 1, a retrospective
legislation is contrary to the general principle that legislation
by which the conduct of mankind is to be regulated when
introduced for the first time to deal with future acts ought not
to change the character of past transactions carried on upon
the faith of the then existing law.
32. The obvious basis of the principle against
retrospectivity is the principle of 'fairness', which must
be the basis of every legal rule as was observed in the
decision reported in L'Office Cherifien des Phosphates
v. Yamashita-Shinnihon Steamship Co.Ltd. [(1994) 1
AC 486 : (1994) 2 WLR 39 : (1994) 1 ALL ER 20 (HL)].
Thus, legislations which modified accrued rights or
which impose obligations or impose new duties or
attach a new disability have to be treated as
prospective unless the legislative intent is clearly to
give the enactment a retrospective effect; unless the
legislation is for purpose of supplying an obvious
omission in a former legislation or to explain a former
legislation. We need not note the cornucopia of case
law available on the subject because aforesaid legal
position clearly emerges from the various decisions
and this legal position was conceded by the counsel for
the parties. In any case, we shall refer to few
judgments containing this dicta, a little later."
9. The relevant judicial pronouncement has been referred to
in Paragraphs 15 and 16, which is reproduced herein
under :-
"15. Another equally important principle applies: in the
absence of express statutory authorization, delegated
legislation in the form of rules or regulations, cannot operate
retrospectively. In Union of India v M.C. Ponnose
reported in 1970 AIR 395 this rule was spelt out in the
following terms:
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"The courts will not, therefore, ascribe retrospectivity
to new laws affecting rights unless by express words or
necessary implication it appears that such was the
intention of the legislature. The Parliament can
delegate its legislative power within the recognised
limits. Where any rule or regulation is made by any
person or authority to whom such powers have been
delegated by the legislature it may or may not be
possible to make the same so as to give retrospective
operation. It will depend on the language employed in
the statutory provision which may in express terms or
by necessary implication empower the authority
concerned to make a rule or regulation with
retrospective effect. But where no such language is to
be found it has been held by the courts that the person
or authority exercising subordinate legislative
functions cannot make a rule, regulation or bye-law
which can operate with retrospective effect.
16. The principle has been affirmed in many decisions such
as Hukum Chand v Union of India 1959 AIR 536, Regional
Transport Officer v Associated Transport Madras (P) Ltd. 1980
AIR 1972; Federation of Indian Mineral Industries v Union of
India AIR Online 2017 SC 140 and recently, in Union of India v
G.S. Chatha Rice Mills AIR Online 2020 SC 740."
10. Learned Additional Public Prosecutor appearing for the
respondent-State referred to report of the Police and has
submitted about the facts of one lead case to state that
in the year 2017, almost all forms were admitted of the
Junior Clerk for the level of non-Sachivalaya but because
of some reason, the examination could not be conducted
and it was held in the year 2020. According to the case
of the prosecution, one and a half month prior to the
examination, as phone call was made by Prakash alias
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P.K. Dave and was asked to come at Bhavnagar Line
Circle for the examination. Thereafter, at about 8.00 in
the evening, there was a meeting and during that period,
Prakash alias P.K. Dave talked about to arrange for a
dummy candidate by the name of Sanjay Harjibhai
Pandya, resident of Taluka Talaja, District Bhavnagar. For
that purpose, Rs.9,00,000/- was decided and the
candidates were asked to have a communication with
their father at home. At that time, as per the prosecution
case, the candidates were asked to give a copy of the
Aadhar Card to Prakash alias P.K. Dave. Thereafter, since
the hall tickets were issued, which was to come to
Prakash alias P.K. Dave at Leela Circle and accordingly,
dummy candidate Sanjay Harjibhai Pandya had appeared
and since the results were posted, it declared the
candidate as passed in the examination. The applicant-
Bhavsinh got a job as Junior Clerk in Polytechnic College,
Bhavnagar. Therefore, Prakash alias P.K. Dave called him
and asked for the amount to be paid at Leela Circle and
the candidate had taken the money to be paid in cash of
Rs.9,00,000/- and had gone to Leela Circle where Prakash
alias P.K. Dave had come in a four wheel vehicle to
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manage the money.
11. Referring to the individual case of the applicants, learned
Additional Public Prosecutor submitted that some of the
applicants are the original candidates and others have
acted as dummy candidate for the applicants. The facts
of the case are similar in nature.
12. It is an admitted fact which becomes clear on record is
that the Examination Act had come into force on
03.03.2023. Article 20(1) of the Constitution clearly lays
down that 'no person shall be convicted of any offence
except for violation of a law in force at the time of
commission of the act charged as an offence'. Thus, the
offences would be of the breach of the law in force on the
date of such alleged commission of offence.
13. As referred hereinabove, the date of examination are all
prior to the Examination Act coming into force. The law
does not lay down any provision giving any retrospective
effect. As observed in the decision of the Esthappan
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Cherian (supra) and by way of various authorities of law,
no retrospective effect can be given to the new law which
affects the rights unless it express or manifests an
intention to the contrary.
14. Here in the present Examination Act, there is no such
provision which conveys intention of giving a
retrospective effect to the Examination Act. It requires
mention that every act of an individual would be
governed by the current law in force at the time of such
act or activity. The law is as per the principle lex
prospicit non respicit : law looks forward not backward.
Under Indian Law, an accused person is to be arrested,
tried and punished only under the laws that were in force
on the date of the alleged offence. This principle is a
fundamental right guaranteed under Article 20(1) of the
Constitution of India known as the protection against ex
post facto laws. An act cannot be considered as crime if
it was not illegal at the time of the offence.
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15. Thus, following the principles of fairness read with Article
20 of the Constitution of India, this Court is of the view
that the invocation of the Examination Act against all the
present applicants is bad, illegal and violative of their
fundamental rights.
16. Hence, the present applications are allowed qua the
applicants herein. The order dated 21.01.2016 of the
learned 4th Additional District and Sessions Judge,
Bhavnagar in Sessions Case Nos.64 of 2023, 66 of 2023
is set aside. The applicants are discharged for the
offences punishable under Sections 12(1), 12(3) and
12(4) of the Examination Act.
17. Rule made absolute to the aforesaid extent.
Sd/-
(GITA GOPI, J)
CAROLINE / # 69, 129, 130 & 145
