Gujarat High Court
M/S. Mac Industries (A Partnership ... vs State Of Gujarat on 12 September, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.RA/1376/2024 ORDER DATED: 12/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST CONVICTION) NO.
1376 of 2024
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M/S. MAC INDUSTRIES (A PARTNERSHIP FIRM) & ANR.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR BOMI H SETHNA(5864) for the Applicant(s) No. 1,2
MS JYOTI BHATT, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 12/09/2024
ORAL ORDER
1. By way of present revision application, the applicants have prayed for the following reliefs:
"6(A) This Hon'ble Court be pleased to call for the record and proceedings in Criminal Case No.6097 of 2022 from the Court of the learned 7 th Additional Judicial Magistrate Court, Ahmedabad Rural and be pleased to examine the same;
6(B) This Hon'ble Court be pleased to quash and set aside Judgement and order dated 09.05.2024 passed by the Ld. 7th Additional Judicial Magistrate Court, Ahmedabad Rural in Criminal Case No.6097 of 2022 qua the issuance of Sentence Warrant (non-bailable warrant;
6(C) This Hon'ble Court be pleased to convert the sentence warrant (non-bailable warrant) issued vide Judgement and order dated 09.05.2024 passed by the Ld. 7th Addl. Judicial Magistrate Court, Ahmedabad Rural in Criminal Case No.6097 of 2022 into the bailable warrant;Page 1 of 11 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:54:22 IST 2024
NEUTRAL CITATION R/CR.RA/1376/2024 ORDER DATED: 12/09/2024 undefined 6(D) Pending admission and/or final disposal of the present application this Hon'ble Court be pleased to stay the execution of sentence warrant (non-bailable warrant) issued vide Judgement and order dated 09.05.2024 passed by the Ld. 7th Addl. Judicial Magistrate Court, Ahmedabad Rural in Criminal Case No.6097 of 2022;
6(E) Ad-interim and/or interim relief in terms of para (D) hereinabove;
6(F) Any such other and further orders as thought fit in the interest of justice."
2. This Court does not consider it necessary to hear the complainant in view of provision under Section 444 of the Bharatiya Nagrik Suraksha Sanhita Act, 2023, as the matter requires urgent hearing.
3. Mr. Bomi Sethna, learned advocate for the applicants submits that present applicants were represented by a lawyer on record, however, he failed to cross examine the witnesses during the trial in proceedings under Section 138 of the Negotiable Instruments Act, 1881.
4. Mr. Sethna, learned advocate submitted that learned 7 th Additional Judicial Magistrate Court, Ahmedabad (R) on 09/05/2024 had declared the judgment and order of imprisonment of one year and deposit of fine of Rs.32,10,000/- and in default of payment of fine, the accused no.2 was ordered to suffer simple imprisonment for further three months.
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5. Mr. Sethna, learned advocate submitted that in view of Section 357(1) of the Criminal Procedure Code, compensation amount of Rs.32,00,000/- was ordered to be paid to the complainant out of the recovered fine after the appeal period. Mr.Sethna, learned advocate, thus, submitted that learned 7 th Additional Chief Judicial Magistrate, Ahmedabad (R) had permitted the accused to prefer the appeal. Since, the judgment of conviction and sentence was passed in absentia, thus, the accused could not move the trial court making a prayer for suspension of sentence under Section 389 (3) of the Cr.P.C. After coming to know about the judgment of conviction, Criminal Appeal No.2578 of 2024 was filed, on 08/08/2024 and now the status is for process to the respondents.
6. Mr.Sethna, learned advocate submitted that along with the appeal, the application was moved for suspension of sentence and the prayer for bail. Mr.Sethana, learned advocate submitted that through out the trial proceedings, the applicants were on bail and, now, there is an insistence for surrendering in view of the order of warrant by the 7 th Additional Chief Judicial Magistrate, Ahmedabad (R) on 09/05/2024 while passing the judgment.
7. Mr.Sethna, learned advocate has relied upon the judgment of High Court of Madras in case of Easwaramurthy vs N. Krishnaswamy reported in 2006 Criminal Law General 4105 and a judgment in Criminal Revision Application No.301 of 2022 with allied matters Page 3 of 11 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:54:22 IST 2024 NEUTRAL CITATION R/CR.RA/1376/2024 ORDER DATED: 12/09/2024 undefined of High Court of Judicature at Bombay Bench at Aurangabad to submit that the scheme of Section 389 of Criminal Procedure Code does not state that prior to preferring an appeal, the accused have to surrender before the trial court and stated that as soon as the appeal gets admitted of the convicted person, Section 389(1) of the Criminal Procedure Code would come in force and the appellate court may for the reasons to be recorded in writing order the execution of sentence appealed be suspended and if the accused is in confinement, then be released on bail or on his own bond.
8. Mr.Sethna, learned advocate submitted that offence under Section 138 of the Negotiable Instruments Act, 1881 is compoundable offence and here warrant was issued in absence by the convicting court. Mr.Sethna, learned advocate submitted that the execution warrant has yet not been served and further stated that in the meantime, the applicant has preferred the appeal before the trial court, thus, now it would be necessary for the appellate court to decide regarding suspension of sentence. Learned advocate, thus, stated that Section 389(1) of the Criminal Procedure Code does not provide that prior to recording reasons for the suspension of execution of sentence, the applicant should be ordered to surrender to serve the execution warrant issued by the trial court.
9. Mr.Sethna, learned advocate further referred to the provisions of Section 389(1) to state that rather sub-section Page 4 of 11 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:54:22 IST 2024 NEUTRAL CITATION R/CR.RA/1376/2024 ORDER DATED: 12/09/2024 undefined clarifies that if he is in confinement then he is to be released on bail or on his own bond. Mr.Sethna, learned advocate, thus, stated that the trial court was required to order for a bail bond for the period of appeal.
10. Ms.Jyoti Bhatt, learned APP submitted that the liberty cannot be granted to applicants who failed to appear during the trial and failed to surrender before the trial court and thus, no such liberty can be asked by the applicants for non- appearance before the appellate court.
11. The conviction warrant ordered by the trial court would be governed under Section 418 of the Criminal Procedure Code and under Section 418 (2) it is only when warrant get served, the accused could be put in confinement, and the sentence shall commence on the date of his arrest.
12. Having heard learned advocate, it is required to note the observations in the case of Lallan Singh and others Vs. State of Uttar Pradesh, reported in (2015) 3 SCC 362.
12.1. In the case of Lallan Singh (supra), the Hon'ble Supreme Court made the observations in paras 10, 10.1, 10.2 and 10.3, which are elicited as under:
"10. The legal position as to the process that should follow an order or conviction is much too clear to require any special emphasis. We say so because Chapter XXXII of the Code of Criminal Procedure, 1973, prescribes the process and the procedure to be followed for execution of sentence of death and/or other Page 5 of 11 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:54:22 IST 2024 NEUTRAL CITATION R/CR.RA/1376/2024 ORDER DATED: 12/09/2024 undefined sentences awarded to convicts. We may in particular refer to Sections 417, 418, 472 and 420 CrPC which deal with the power to appoint place of imprisonment of the convict, the execution of sentence of imprisonment and the direction of warrant for execution as also the persons with whom the same has to be lodged:
10.1 Section 418 of the Code in particular deals with execution of sentence imprisonment and inter alia empowers and obliges the court passing the sentence to forthwith forward a warrant to the jail or other place in which he is, or is to be, confined, and, unless the accused is otherwise confined in such jail or other place to forward him to such jail or other place with a warrant.
In terms of sub-section (2) of Section 418, where the accused is not present in the court when sentence of imprisonment as is mentioned in subsection (1) is pronounced, the court is required to issue a warrant for his arrest for the purpose of forwarding him to jail or other place in which he is to be confined and in such cases the sentence shall commence on the date of his arrest. There is thus no gainsaying that upon conviction of an accused and sentence of imprisonment awarded to him, the court concerned is expected to commit him to jail in terms of a warrant that would authorities him confinement for the period he is to undergo such imprisonment. We have no reason to believe that this procedure is not followed invariably in all such cases where the convict is not present before the court concerned and is required to be committed to imprisonment for undergoing the sentence.
10.2 We also believe that the process of issuing warrant to apprehend the convict is followed diligently in keeping with the spirit underlying Section 418 CrPC.
10.3 The difficulty, in our opinion, arises when the warrants so issued by the court concerned remain unexecuted. This happens not only in cases where the accused has been convicted and sentenced by the trial court but also where an appeal or revision preferred against the conviction is eventually dismissed by the High Court. There is no manner of doubt that even in Page 6 of 11 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:54:22 IST 2024 NEUTRAL CITATION R/CR.RA/1376/2024 ORDER DATED: 12/09/2024 undefined such cases the court is under an obligation after receipt of an intimation about the dismissal of the appeal or revision preferred by the convicts, to follow the procedure under Section 418 CrPC for apprehension of the accused, in case he has not surrendered voluntarily, and to commit him to jail to undergo the sentence awarded to him. Experience, however, shows that when warrants are forwarded to the police for execution the same remain unexecuted for years as noticed by us in the case at hand where despite the dismissal of the appeal filed by two of the life convicts, held guilty of a double murder, had remained at large for considerably long period."
13. In the case of Vivek Rai and another vs. High Court of Jarkhand through Registrar General and others reported in 2015 A.I.R. (SC) 1088, it is observed as under:
"It has not been disputed even by the learned counsel for the High Court that the Rule does not affect the inherent power of the High Court to exempt the requirement of surrender in exceptional situations. It cannot thus be argued that prohibition against posting of a revision petition for admission applies even to a situation where on an application of the petitioner, on a case being made out, the Court, in exercise of its inherent power, considers it appropriate to grant exemption from surrender having regard to the nature and circumstances of a case. Thus, the exception as found in corresponding Supreme Court Rules that if the Court grants exemption from surrender and directs listing of a case, the Rule cannot stand in the way the Court's exercise of such jurisdiction, has to be assumed in the impugned Rule."
14. The appeal has already been filed before the appellate court.
15. The learned trial court judge, by way of provision of Page 7 of 11 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:54:22 IST 2024 NEUTRAL CITATION R/CR.RA/1376/2024 ORDER DATED: 12/09/2024 undefined Section 353 of Criminal Procedure Code appears to have gone by the provisions of sub-section (6) and (7). The learned Judge was required to call upon the accused to attend the court on the date of pronouncement of the judgment, however, sub-section-(7) by deeming provision does not considers such judgments delivered by the criminal court in absence of the party or its pleader and on the day or from the placed notified for the delivery as invalid. In view of the scheme under Section 353 of Criminal Procedure Code, the court was required to inform the accused to attend the court on the date of pronouncement of judgment as that could have given the accused the liberty to make a prayer before the trial court for suspension of sentence and in that circumstances the trial court going by the provision of sub-section (3) of Section 389 to Criminal Procedure Code could have released accused on bail. This opportunity was not provided by the trial court. Hence, a conviction warrant would become challenge-able.
16. The filing of an appeal is a substantial right. Section 387 of the Criminal Procedure Code clarifies that the rules contained in chapter-XXVII as to the judgment of the criminal court of original jurisdiction, shall apply so far as may be practicable to the judgment in appeal of the court of sessions or chief judicial magistrate. To the proviso that unless the appellate court otherwise directs the accused shall not be brought up or required to attain to hear the judgment delivered. Section 387 of the Criminal Procedure, thus, gives an authority to the appellate court to pass such directions for Page 8 of 11 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:54:22 IST 2024 NEUTRAL CITATION R/CR.RA/1376/2024 ORDER DATED: 12/09/2024 undefined the attendance of the accused to hear the judgment delivered. While, Section 353 of the Criminal Procedure Code grant the liberty to the trial court only in case where the accused is exempted from personal attendance during the trial and the sentence is of fine only or he is ordered to be acquitted.
17. Here, it appears from the proceedings, as observed by the trial court, that the advocate was present before the court, however, he choose not to remain present to cross examine the witness. The accused were not in knowledge of the pronouncement of the judgment. This fact is required to be noted coupled with the fact that the conviction warrant is yet not executed by the police.
18. Section 389, sub-section (1), does not insist for surrendering of the accused to face the conviction warrant since the applicant as an appellant is challenging the conviction and sentence before the appellate court and the appellate court is called upon to examine the legality and validity of the conviction and sentence.
19. In view of the provision of Section 387 of the Criminal Procedure Code, the law mandates that the appellate court would have to call upon the accused to hear the judgment no sooner the appeal is dismissed. The procedure contemplated under Section 418 of the Criminal Procedure Code will have to be followed and to see to it that the order of conviction is put to execution and, thus, it would follow that as soon as the appeal against conviction is dismissed, the accused will have Page 9 of 11 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:54:22 IST 2024 NEUTRAL CITATION R/CR.RA/1376/2024 ORDER DATED: 12/09/2024 undefined to be immediately taken into custody or he would have to surrender himself and if he is on bail, the order of bail would automatically come to an end at the conclusion of the appeal. The bail would only be in force till the pendency of the appeal and thereafter on disposal of the appeal, the accused would be under obligation to surrender.
19.1. Even this proposition of law gets cleared, since in the revision jurisdiction too after the conviction by the trial court, affirmed by the appellate court as observed in the case of Bihari Prasad Singh v. State of Bihar reported in (2000) SCC (Cri.) 1380 that the revision court cannot refuse to hear or entertain the matter on the ground that the accused has not surrendered.
20. Taking this view of the provision of law, it can be considered that insistence to the appellant to surrender before the jail authority during the course of hearing of appeal would be against the scheme of the law, more specifically, when the conviction warrant under Section 418 of the Criminal Procedure Code has not been served upon the accused and more precisely prior to that he has filed an appeal.
21. Further, it is to be observed that the learned trial court has ordered for deposit of Rs.32,10,000/- as fine and that fine amount is directed to be paid to the complainant under Section 357 of the Criminal Procedure Code. Section 357(2) notes that if fine imposed is in a case which is subject to Page 10 of 11 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:54:22 IST 2024 NEUTRAL CITATION R/CR.RA/1376/2024 ORDER DATED: 12/09/2024 undefined appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed or if an appeal be presented, before the decision of the appeal.
22. Here when the appeal already has been presented and numbered then before the decision of the appeal, the court cannot even insist on the payment of fine amount.
23. In view of the above reasons and when the applicant has a substantial right to deal with his appeal, an opportunity is required to be given to the applicant to defend his matter in the appeal.
24. Taking into consideration the facts and circumstances, the warrant issued against the applicant is ordered to be converted into bailable warrant.
25. The learned Judge, thus, to decide the case per Section 430(1) of the Bharatiya Nagrik Suraksha Sanhita Act, 2023 (Section 389(1) of the Criminal Procedure Code).
26. Present Revision Application is partly allowed. Direct service is permitted.
(GITA GOPI,J) ILA Page 11 of 11 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:54:22 IST 2024