Gujarat High Court
State Of Gujarat vs Sureshbhai Balabhai Parmar on 4 July, 2025
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.A/279/2006 JUDGMENT DATED: 04/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 279 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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Approved for Reporting Yes No
✔
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STATE OF GUJARAT
Versus
SURESHBHAI BALABHAI PARMAR
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Appearance:
MS MONALI BHATT, ADDITIONAL PUBLIC PROSECUTOR for the
Appellant(s) No. 1
MR DARSHAN A. DAVE(7921) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 04/07/2025
ORAL JUDGMENT
1. Under Section 377 of Code of Criminal Procedure, 1973 (hereinafter referred to in short as 'Cr.P.C.'), the appellant- State by way of this Appeal has made an prayer for enhancement of the sentence passed on 30.09.2005 in Criminal Case No.4014 of 2004 by the learned 3 rd Additional Senior Civil Judge and Judicial Magistrate First Class, Bhavnagar. The sole respondent as an accused in the trial was convicted for the offences punishable under Page 1 of 19 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:01:17 IST 2025 NEUTRAL CITATION R/CR.A/279/2006 JUDGMENT DATED: 04/07/2025 undefined Section 506(2) of the Indian Penal Code for six months while he was acquitted for the offences punishable under Section 507 of the IPC.
2. At the outset, learned Advocate for the appellant Mr. Darshan A. Dave referring to the provision of Section 377 of Cr.P.C. took objection and submitted that since the sentence is passed by the leaned Magistrate, the Appeal would lie before the Court of Sessions and thus, stated that on this very ground the Appeal should be outrightly dismissed. Learned advocate has further submitted that considering the facts of the case, enhancement of sentence to set an example of deterrence is not in consonance with the principles of the judicial system. It is also submitted that the reference been made by the complainant of the cases are the one which had been filed by him and his father and for rest of the matters no order of conviction is placed on record. It is further submitted that the respondent has already undergone six months imprisonment. Referring to the Certificate issued by the Bhavnagar District Jail, Bhavnagar it is submitted that the respondent was appreciated by the issuance of Certificate Page 2 of 19 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:01:17 IST 2025 NEUTRAL CITATION R/CR.A/279/2006 JUDGMENT DATED: 04/07/2025 undefined on 26.01.2025 of being a member of the Winning Team of Volley Ball which was organized by the jail authority on 26.01.2025.
3. Learned advocate Mr. Darshan A. Dave has submitted that the respondent is at present serving as Security Guard in a School. The matter was instituted in the year 2006 and the hearing is after a long time, i.e. now in the year 2025, the elapsed period is also required to be taken into account while considering the Appeal under Section 377 of Cr.P.C.
4. Learned advocate Mr. Darshan A. Dave has referred to the decision of the Division Bench of this Court in the case of State of Gujarat v. Ayub Ganibhai Odiya reported in 2018 (2) GLR 1643 to submit that in a case under Section 354 of IPC, the benefit of probation under the Probation of Offenders Act and Section 360 of Cr.P.C. was granted. Thus, showing the Court the difference on facts of the matter in Ayub Ganibhai Odiya (supra) and in the present case, it submitted that the case herein deals with aspect of giving threats. The facts as has been brought on record would show that the complainant and the witnesses were Page 3 of 19 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:01:17 IST 2025 NEUTRAL CITATION R/CR.A/279/2006 JUDGMENT DATED: 04/07/2025 undefined actually knowing each other and were residing in the same vicinity. The facts shows that the respondent had good aquaintances with the complainant, his brother and his friend. The facts that have been brought on record was to show that he was threatening the complainant through telephone. No evidence of the Telephone Department has been produced to show that the respondent was threatening the complainant telephonically.
5. Learned advocate Mr. Darshan A. Dave for the respondent- accused submitted that infact, the conviction is not consistent with the evidence on record. The accused was required to be acquitted, as the threat which is stated to have been administered, is not proven by cogent evidence of any independent witnesses and all the witnesses are interested witnesses. It is further submitted that the complaint appears to have been filed only with a intent to teach a lesson to the respondent, where actually the complaint had started when the father of the complainant and the whole family are only interested in seeing the respondent-accused behind the bars. It is further submitted that since six months imprisonment has already Page 4 of 19 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:01:17 IST 2025 NEUTRAL CITATION R/CR.A/279/2006 JUDGMENT DATED: 04/07/2025 undefined been undergone by the respondent, there would not be any case of enhancement of sentence.
6. On the above argument, learned Additional Public Prosecutor Ms. Monali Bhatt has submitted that the conviction and sentence is dated 30.09.2005 which is prior to the amendment and which is put into effect from 23.06.2006 and submitted that the Appeal was admitted prior to the amendment and hence, there would be no question of lack of jurisdiction. Section 377 of Cr.P.C. makes a provision for an Appeal on the ground of inadequacy to the Court of Sessions when the sentence is passed by the learned Magistrate. The Act has been substituted by the Act of 25 of 2005 with effect from 23.06.2006. The present appeal has been filed on 08.02.2006, and hence, it is submitted that the objections that were raised by learned advocate Mr. Darshan A. Dave for the respondent would not sustain.
7. Learned APP Ms. Monali Bhatt submitted that the State has raised a ground of inadequacy of sentence claiming that the judgment and order of sentence is unduly lenient Page 5 of 19 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:01:17 IST 2025 NEUTRAL CITATION R/CR.A/279/2006 JUDGMENT DATED: 04/07/2025 undefined and grossly inadequate. The maximum sentence provided under Section 506(2) of the IPC can be imprisonment for upto seven years or with a fine or both. The learned trial Court taking into the consideration the facts and the evidence on record ought to have imposed maximum punishment on the respondent-accused for the offences that he was charged with. It is further submitted that the learned Judge has not given any special reasons for inflicting lesser sentence than what is provided in the Act.
8. Learned Additional Public Prosecutor Ms. Monali Bhatt submitted that the imposition of sentence is largely for creating a deterrent effect and that the undue leniency and the gross inadequacy of the sentence would affect and harm the justice system and would also harm the trust of the people on the judicial system. It is further submitted that the facts of the case suggest that the respondent was a notorious person. There were many cases filed against him and the facts also suggest that he was a head strong person in the area and the State is duty bound to protect the citizens and has therefore, filed an Appeal aggrieved by the leniency of the learned Magistrate in imposing the Page 6 of 19 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:01:17 IST 2025 NEUTRAL CITATION R/CR.A/279/2006 JUDGMENT DATED: 04/07/2025 undefined sentence.
9. Learned Additional Public Prosecutor Ms. Monali Bhatt has also referred to the evidence of the complainant, his brother as well as the witness, whose is a friend of the complainant to submit that the complainant as law abiding citizen filed a case against the nefarious activities of the respondent, which itself shows that he had gathered strength to fight and has succeeded by providing the evidence during the course of trial. In that fact of the matter, learned APP Ms. Monali Bhatt has submitted that the sentence should be in proportion to the crime. It is further submitted that the learned Magistrate has not clarified the nature of imprisonment that the respondent would undergo. The learned Magistrate has not recorded whether it would be simple imprisonment or rigorous imprisonment.
10. Learned APP Ms. Monali Bhatt has also referred to the evidence of various First Information Reports filed against the respondent and submitted that the respondent- accused was brought by a transfer warrant in the present Page 7 of 19 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:01:17 IST 2025 NEUTRAL CITATION R/CR.A/279/2006 JUDGMENT DATED: 04/07/2025 undefined matter. The evidence of PW5-Head Constable of the 'D' Division Police Station clarifies in the evidence that the respondent was arrested often and sent in court custody.
11. Prior to the amendment, Section 377 of the Cr.P.C. read as under :-
"377. Appeal by the State Government against sentence. - (1) Save as otherwise provided in sub-section (2), the State Government may, in any case of conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy. (2) If such conviction is in a case in which the offence has been investigated by the Delhi Special Police Establishment, constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy.
(3) When an appeal has been filed against the sentence on the ground of its inadequacy, the High Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the sentence."
12. The appeal against the order of Magistrate on the ground of sentence inadequacy could be filed at the High Court in the matters of conviction prior to 23.06.2006. Here the conviction in the matter is dated 30.09.2005. Hence, the preliminary objection is not sustainable and hence, rejected.
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13. The charge was framed below Exhibit 2 on 02.08.2004 by the learned Judicial Magistrate First Class, Bhavnagar alleging that on 08.10.2003, the accused had telephoned the complainant at his place of business and threatened the complainant to pay Rs.25,000/- if he wanted to continue with his business or else to lose his life. The charge refers to the threat that was given to the complainant by phone. The charge does not state that the accused was visiting the business place of the complainant and was asking for the extortion of Rs.25,000/-, threatening him to close the business.
14. PW1-the complainant-Pankaj Sureshchandra Shah was staying at 162 LIG Shastrinagar, Bhavnagar alongwith his parents and brother. His place of business is Suresh Provision Stores, near Centre Division of Bhavnagar where he and his younger brother were doing business. It is further stated that he has a telephone at his home and his shop. The incident had occurred on 08.01.2003 in shop No.2246526 at about 11 o' clock. The respondent accused- Suresh Balabhai Parmar telephoned him and threatened him to give Rs.25,000/- or else he would lose his life and Page 9 of 19 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:01:17 IST 2025 NEUTRAL CITATION R/CR.A/279/2006 JUDGMENT DATED: 04/07/2025 undefined his family members would be kidnapped. He stated that Rs.25,000/- was the extortion amount. He identified the accused in the Court. The charge was accordingly framed that he had threatened on 08.10.2003 on telephone by asking him an amount of Rs.25,000/-.
15. This telephone call dated 08.10.2003 has not been proved by the complainant himself nor by the PW5- Bhikhubha Bahadursinh, who was the Head Constable of 'D' Division Police Station at the time of incident. According to him, PSO had given him a written order and he had recorded the concerned witness statement. This witness-PW5 had also produced the complaint of 'B' Division Police Station as II-C.R. No.23 of 2002 of the father of the complainant. The witness has placed on record the FIR and the charge-sheet by PW3-Mangalaben Mahipatsinh. The witness-PW5-Bhikhubha Bahadursinh has stated that the accused was arrested and sent to judicial custody. In the cross examination of the PW5- Bhikhubha Bahadursinh it has come that there were many shops opposite the house of the complainant and denied the suggestion that the accused was residing opposite the Page 10 of 19 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:01:17 IST 2025 NEUTRAL CITATION R/CR.A/279/2006 JUDGMENT DATED: 04/07/2025 undefined police line and has confirmed that he has not recorded the statement of the people in the neighbourhod or complainant's shop. It was stated that there was no residential house near the complainant's house and had admitted the fact that he has not produced the evidence from the Telephone Department and also confirmed that in the present matter, he had not recorded the statement of any other person except the complainant, PW2- Jayendrasinh Mahipatsinh and PW4-Jignesh. He has also confirmed that he has not recorded the statement of the father of the complainant. The accused was brought by a transfer warrant.
16. As per the charge, the accused had threatened the complainant by phone. Further, the evidence of the case shows that the accused was a 'Don' of the area. He used to gather outside the complainant's shop, would threaten him and would extort money from other shops. It is stated that the accused was a notorious person.
17. The witness has placed reliance on Exhibit 18-the complaint which was given by his father-Sureshchandra. Page 11 of 19 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:01:17 IST 2025
NEUTRAL CITATION R/CR.A/279/2006 JUDGMENT DATED: 04/07/2025 undefined He has also stated that during the course of trial, the accused had given threats. During the trial, the complainant placed on record Exhibits 12 to 13 to show the cases filed against the accused under Section 307 of the IPC and under Section 135 of the Bombay Police Act, registered as I-C.R. No.103 with the 'C' Division Polie Station, and also produced at Exhibits 14-15 for the offences registered under Sections 384, 506(2) and 114 of the IPC and under Section 135 of the B.P. Act vide C.R. No.157 of 2001. Further, there is a copy of the complaint registered as I-C.R. No.479 of 1999 and the charge-sheet at Exhibits 16 and 17.
18. In the cross examination, the witness stated that the accused father was serving at the Railways and they were staying at the quarters. He barely knew the accused. He denied the suggestion that the accused was his friend. He was running a grocery shop for the last 27 years. He confirmed that the accused had never beaten him but stated that he would enter his shop with deadly weapons. He has denied the suggestion of any attempt of kidnapping. He has also confirmed that that the accused Page 12 of 19 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:01:17 IST 2025 NEUTRAL CITATION R/CR.A/279/2006 JUDGMENT DATED: 04/07/2025 undefined had never visited his house for demanding money in the form of extortion.
19. The friend PW2-Jayendrasinh Mahipatsinh and the brother PW4-Jignesh has also corroborated the statement of the complainant. The telephone number which the complainant and his brother stated was 2246526. The charge was that the accused was threatening telephonically. No details have been placed on record to prove the charge. Still however, conviction followed under Section 506(2) of the IPC. The complaint at Exhibit 11 is in the form of further statement which is dated 11.10.2003, where he had confirmed the complaint of 08.01.2003 and in furtherance, he had stated in the complaint at Exhibit 11 that the accused would often to come to him and persistently demand money. About 2.5 months prior, he had given the complaint and thereafter too after 15 days, he had come to his chawl demanding Rs.25,000/- and that he had also threatened his brother telephonically. He has further stated that since they had no caller ID on telephone, he could not identify the accused.
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20. The learned trial Court Judge has not believed the case under Section 507 of the IPC against the accused of criminal intimidation by an anonymous communication. The offence of criminal intimidation by anonymous communication could not be proved. The evidence of PW5-Bhikhubha Bahadursinh could not bring the details of the telephone calls by way of investigation from the telephone Department. Prima-facie the threat on 08.10.2003 could not be proved. Therefore, the learned trial Court Judge had not believed the case under Section 507 of the IPC.
21. The trial Court has placed reliance on other complaints against the accused under Section 506(2) of the IPC. Criminal history was given much weightage. However, the learned Judge has not noted of any conviction in all the matters. Merely, filing of FIR and the charge-sheet could not be a ground to label the accused as a notorious person and a menace to the Society. The complaint and the charge of the charge-sheet were required to be proved by way of conviction to believe the FIR and the charge-sheet. Page 14 of 19 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:01:17 IST 2025
NEUTRAL CITATION R/CR.A/279/2006 JUDGMENT DATED: 04/07/2025 undefined The past record without the conviction orders cannot make the present respondent as an accused vulnerable for a prayer seeking enhancement. The learned Judge on the basis of the evidence on record has passed the order sentencing the respondent to six months imprisonment.
22. In the case of the State of Rajasthan v. Mohan Lal & Another in Criminal Appeal No.959 of 2018, while deciding the leniency, the Hon'ble Supreme Court had observed that the High Court was too lenient in imposing the sentence of six days only which was the period already undergone by the accused in confinement. Thereafter, the Hon'ble Supreme Court imposed a sentence of six months rigorous imprisonment and fine of Rs.25,000/- for the offence under Section 325 of IPC and incase of default of payment of fine, the accused was ordered to undergo further rigorous imprisonment for 3 months. The Hon'ble Supreme Court has referred to the case of Soman vs. State of Kerala reported in (2013) 11 SCC 382 and Alister Anthony Pareira v. State of Maharashtra reported in (2012) 2 SCC 648 and has made observations in Paragraphs 10, 11, 12, 13 and 14 as under :-
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NEUTRAL CITATION R/CR.A/279/2006 JUDGMENT DATED: 04/07/2025 undefined "10. Currently, India does not have structured sentencing guidelines that have been issued either by the legislature or the judiciary. However, the Courts have framed certain guidelines in the matter of imposition of sentence. A Judge has wide discretion in awarding the sentence within the statutory limits.
Since in many offences only the maximum punishment is prescribed and for some offences the minimum punishment is prescribed, each Judge exercises his discretion accordingly. There cannot, therefore, be any uniformity. However, this Court has repeatedly held that the Courts will have to take into account certain principles while exercising their discretion in sentencing, such as proportionality, deterrence and rehabilitation. In a proportionality analysis, it is necessary to assess the seriousness of an offence in order to determine the commensurate punishment for the offender. The seriousness of an offence depends, apart from other things, also upon its harmfulness.
11. This Court in the case of Soman Vs. State of Kerala [(2013) 11 SCC 382] observed thus :
"27.1. Courts ought to base sentencing decisions on various different rationales - most prominent amongst which would be proportionality and deterrence.
27.2. The question of consequences of criminal action can be relevant from both a proportionality and deterrence standpoint.
27.3. Insofar as proportionality is concerned, the sentence must be commensurate with the seriousness or gravity of the offence.
27.4. One of the factors relevant for judging seriousness of the offence is the consequences resulting from it. 27.5. Unintended consequences/harm may still be properly attributed to the offender if they were reasonably foreseeable. In case of illicit and underground manufacture of liquor, the chances of toxicity are so high that not only its manufacturer but the distributor and the retail vendor would know its likely risks to the consumer. Hence, even though any harm to the consumer might not be directly intended, some aggravated culpability must attach if the consumer suffers some grievous hurt or dies as result of consuming the spurious liquor."
12. The same is the verdict of this Court in Alister Anthony Pareira Vs. State of Maharashtra [(2012) 2 SCC 648] wherein it Page 16 of 19 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:01:17 IST 2025 NEUTRAL CITATION R/CR.A/279/2006 JUDGMENT DATED: 04/07/2025 undefined is observed thus:
"84. Sentencing is an important task in the matters of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: the twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances."
13. From the aforementioned observations, it is clear that the principle governing the imposition of punishment will depend upon the facts and circumstances of each case. However, the sentence should be appropriate, adequate, just, proportionate and commensurate with the nature and gravity of the crime and the manner in which the crime is committed. The gravity of the crime, motive for the crime, nature of the crime and all other attending circumstances have to be borne in mind while imposing the sentence. The Court cannot afford to be casual while imposing the sentence, inasmuch as both the crime and the criminal are equally important in the sentencing process. The Courts must see that the public does not lose confidence in the judicial system. Imposing inadequate sentences will do more harm to the justice system and may lead to a state where the victim loses confidence in the judicial system and resorts to private vengeance.
14. In the matter at hand, it is proved that the victim has sustained a grievous injury on a vital portion of the body, i.e. the head, which was fractured. The doctor has opined that the injury was life threatening. Hence, in our considered opinion, the High Court was too lenient in imposing the sentence of six days only which was the period already undergone by the accused in confinement."
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23. In Bed Raj v. State of Uttar Pradesh reported in 1955 (2) SCR 583, the Hon'ble Supreme Court has concluded that the question of sentence is a matter of discretion and it is well settled that when discretion has been properly exercised along accepted judicial lines, an appellate court should not interfere to the detriment of the accused person except for very strong reasons, which must be disclosed on the fact of judgment. It was further held that in a matter of enhancement, there should not be interference when the sentence passed imposes substantial punishment.
24. Here in the present matter, the charge appears to have been not proved. The another charge was also under Section 506(2) of the IPC, where the learned trial Court Judge after appreciating the other evidence on record of the cases filed against the accused where actually no conviction was brought on record, ordered the sentence. The punishment for criminal intimidation under Section 506(1) of IPC is of either description for a term which may extend to two years, or with fine, or with both. Considering the evidence on record, the learned trial Court has very justly and proportionately passed an order of six months. Page 18 of 19 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:01:17 IST 2025
NEUTRAL CITATION R/CR.A/279/2006 JUDGMENT DATED: 04/07/2025 undefined The records does not suggest any reason which would warrant for further enhancement. Further, this Court also considers the rehabilitation of the accused and the accused participation in sports activities during the jail period, of his intention to improve. The age of the accused at the time of the offence was 27 years and much time has elapsed. Taking into consideration the intention of the learned Magistrate, in punishing the crime, and considering the facts of the case as well as the evidence on record, sufficient deterrence has been shown by way of sentence of six months.
25. In the result for the reasons given hereinabove, and considering the provisions of law, this Court does not find any reason to interfere with the judgment and order of the learned Magistrate. The Appeal fails and is hereby dismissed. Record and proceedings be sent back to the concerned Court forthwith.
Sd/-
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