Gujarat High Court
Piyush Ambalal Patel - Paras Skin And ... vs State Of Gujarat on 10 June, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.RA/771/2024 ORDER DATED: 10/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 771 of 2024
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PIYUSH AMBALAL PATEL - PARAS SKIN AND COSMETIC CLINIC
Versus
STATE OF GUJARAT & ANR.
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Appearance:
K R PATEL(7601) for the Applicant(s) No. 1
MR VAIBHAV N SHETH(5337) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR HARDIK MEHTA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 10/06/2024
ORAL ORDER
1. Mr. Vaibhav N.Sheth, learned advocate for the applicant, submitted that the applicant has been accused no.2 in Criminal Case No.14997 of 2019, which was filed before the 10th Additional Judicial Magistrate, First Class, Ahmedabad (Rural) under section 138 of the N.I. Act. Advocate Mr. Sheth stated that the present applicant came to be convicted and sentenced for one year simple imprisonment under section 138 of the N.I. Act, and was ordered to deposit double Page 1 of 19 Downloaded on : Wed Jun 12 20:51:26 IST 2024 NEUTRAL CITATION R/CR.RA/771/2024 ORDER DATED: 10/06/2024 undefined the amount of cheque, which was calculated as Rs.2,11,662/-, within 30 days of the order as a compensation amount. In failure to deposit the money, three months further imprisonment was ordered.
2. Advocate Mr. Sheth further submitted that accused no.1, wife of the present applicant, was acquitted, while the present applicant has been sentenced for one year. Mr. Sheth submitted that the conviction order was passed in absence of accused no.2, and the order dated 25.01.2023 was to the effect of bringing the accused no.2 before the Court on issuance of non-bailable warrant.
3. Advocate Mr. Sheth submitted that an appeal was proposed to be preferred against the judgment of conviction of the Judicial Magistrate, First Class in Criminal Case No.14997 of 2019 by filing delay condonation application, Page 2 of 19 Downloaded on : Wed Jun 12 20:51:26 IST 2024 NEUTRAL CITATION R/CR.RA/771/2024 ORDER DATED: 10/06/2024 undefined which was for condoning the delay of one year 37 days. Mr. Sheth stated that delay condonation application came to be rejected on the observation of the 7th Additional District and Sessions Judge, Ahmedabad (Rural), that the present applicant was not present before the Court on the date of declaration of the judgment and since non-bailable warrant had been issued, he was required to move an application for stay by appearing before the Judicial Magistrate, First Class and making a prayer for bail till the time of filing of the appeal.
4. Mr. Sheth, learned advocate for the applicant stated that there is no allegation that the applicant was dodging the service of non- bailable warrant; the Additional Sessions Court was required to consider the merits of the case, where the prayer was made to condone the delay of one year and 37 days.
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5. Referring to the provision of section 374 of the Cr.P.C., Mr. Sheth submitted that on conviction, an appeal is to be preferred before the Court of Sessions, and, thus there would not be any scope of again appearing before the Judicial Magistrate, First Class when an order had already been passed for issuance of non- bailable warrant. Mr. Sheth submitted that for a prayer to suspend the sentence, the appellate Courts are guided by the provision of section 389 of Cr.P.C., and could have ordered the execution of the sentence, but when a prayer has been made for condoning the delay, then it becomes incumbent upon the courts to decide the application on merits.
6. Advocate Mr. Sheth further submitted that delay condonation application came to be rejected on the observation that the applicant had not surrendered before the trial Court praying for bail.
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7. Advocate Mr. Sheth stated that the observation in the impugned order shows that Advocate of the applicant was very much present before the Court and the hearing of the application was in progress; the Sessions Court itself could have gone by the provisions of section 389 Cr.P.C., or while rejecting the delay condonation application, ought to have ordered the execution of sentence, which Mr. Sheth submitted itself could be the criteria which comes into play only after the application praying for condoning the delay has been decided on merits.
8. Countering the arguments, Mr. Hardik Mehta, learned APP, submitted that the applicant had the knowledge of the proceedings, and was required to be present on the date of declaration of the judgment, and when non-bailable warrant has been issued, he was required to suffer the Page 5 of 19 Downloaded on : Wed Jun 12 20:51:26 IST 2024 NEUTRAL CITATION R/CR.RA/771/2024 ORDER DATED: 10/06/2024 undefined sentence and surrender before the jail authority, and thereafter could have made a prayer for releasing him on bail, which he has failed to do so, and, thus the Sessions Court rightly, observing the conduct of the applicant, rejected the application, therefore, submitted that the order is reasoned and sound, which does not require the interference of this Court.
9. Heard learned advocates for the respective parties and perused the documents produced on record. The trial Court had acquitted the wife of the applicant, while convicted the present applicant for sentence of one year, and further order of payment of compensation of Rs.2,11,662/- has been passed.
10. Learned advocate Mr. Sheth submitted that the applicant is ready to deposit the said amount. Further, referring to the order in the case of Ishwarbhai Hirabhai Chunara & 1 Vs. State Page 6 of 19 Downloaded on : Wed Jun 12 20:51:26 IST 2024 NEUTRAL CITATION R/CR.RA/771/2024 ORDER DATED: 10/06/2024 undefined of Gujarat & 1, in Special Criminal Application (Quashing) No.9113 of 2016, submitted that an opportunity is required to be given so that, can move an application under section 389 Cr.P.C. for bail to enable him to prefer a Criminal Appeal, and may again move the Court for hearing of the Criminal Appeal.
11. The observation of the 7th Additional District Sessions Judge, Ahmedabad (Rural) rejecting the delay condonation application is to the effect that the applicant had failed to surrender before the trial Court and move for bail so as to prefer an appeal.
12. In the case of Lallan Singh and others Vs. State of Uttar Pradesh, 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 Page 7 of 19 Downloaded on : Wed Jun 12 20:51:26 IST 2024 NEUTRAL CITATION R/CR.RA/771/2024 ORDER DATED: 10/06/2024 undefined 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 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 Page 8 of 19 Downloaded on : Wed Jun 12 20:51:26 IST 2024 NEUTRAL CITATION R/CR.RA/771/2024 ORDER DATED: 10/06/2024 undefined (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 Page 9 of 19 Downloaded on : Wed Jun 12 20:51:26 IST 2024 NEUTRAL CITATION R/CR.RA/771/2024 ORDER DATED: 10/06/2024 undefined 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 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 Page 10 of 19 Downloaded on : Wed Jun 12 20:51:26 IST 2024 NEUTRAL CITATION R/CR.RA/771/2024 ORDER DATED: 10/06/2024 undefined two of the life convicts, held guilty of a double murder, had remained at large for considerably long period."
12.1 The single Judge of Kerala High Court in case of Jain Babu Vs. K.J. Joseph, reported in 2009(1) Crimes (HC) 629, observed that if the accused is not on bail, execution of the sentence cannot be suspended under section 389(3) Cr.P.C. to enable him to prefer an appeal. The Apex Court has further dealt with the situation, where during trial the accused is exempted from personal attendance, and judgment is pronounced in his absence. Para-30 of the said judgment is quoted hereunder for ready reference:
"30. If the accused is not on bail, execution of the sentence cannot be suspended under Section 389(3) Cr.P.C to enable an accused to prefer an appeal. The courts will be obliged to straight away execute the sentence. This may amount to denial of the right of an accused to get Page 11 of 19 Downloaded on : Wed Jun 12 20:51:26 IST 2024 NEUTRAL CITATION R/CR.RA/771/2024 ORDER DATED: 10/06/2024 undefined the sentence suspended to enable him to prefer an appeal, it is apprehended by some counsel. I find no merit in this apprehension. In a case where the accused is exempted under Section 205 Cr.P.C and the judgment of conviction is pronounced in his absence just, reasonable and orderly procedure mandates that the court must direct the accused to appear before court on a specified day for execution of sentence. Imbibing the mandate of Section 389(3) Cr.P.C, any reasonable Magistrate must post the case for appearance of the accused only on such a date, which will ensure that the accused gets reasonable time to prefer an appeal in the meantime. Further, I am unable to accept the contention that the language of Section 389(3) Cr.P.C would bar the suspension of sentence in a 138 prosecution, when the presence of the accused is exempted under Section 205 Cr.P.C. Under Section 389(3) Cr.P.C. when the accused is on bail, the sentence can be suspended. It will be succumbing to Page 12 of 19 Downloaded on : Wed Jun 12 20:51:26 IST 2024 NEUTRAL CITATION R/CR.RA/771/2024 ORDER DATED: 10/06/2024 undefined the tyranny of linguistic technicality to assume that when a court has chosen to exempt an accused from personal appearance and the obligation to seek bail, he will not be entitled to the benefit or advantage to which a person released on bail will be entitled to. The expressions "being on bail" and "is on bail" appearing in Section 389(3)
(i) and (ii) Cr.P.C. must be read and understood reasonably to include an accused from whom bail has not been demanded at all and who enjoys his freedom. A judicial functionary who is unable to find space to extend the benefit of Section 389(3) Cr.P.C to an accused who enjoys his freedom, who is not in custody, who has not been directed even to offer bail and who has been exempted from personal appearance under Section 205 Cr.P.C is definitely missing the woods for the trees. He lacks orientation in human rights jurisprudence and does lack the training to jump over insignificant fences. Sentence imposed on an exempted accused, in whose absence Page 13 of 19 Downloaded on : Wed Jun 12 20:51:26 IST 2024 NEUTRAL CITATION R/CR.RA/771/2024 ORDER DATED: 10/06/2024 undefined judgment is pronounced need not be executed till the next date of posting. On such next date he must be directed to appear in person or produce order of suspension if any from the appellate court. An exempted accused who has been directed only to appear to receive judgment must be held to be a person to whom the benefit of Section 389(3) Cr.P.C is available, he having been exempted already from the obligation to appear and offer bail. This apprehension is thus found to be without substance."
13. The judgment of the trial Court acquitting the wife of the applicant, while convicting and sentencing him for simple imprisonment of one year with the order of compensation to be paid amounting to Rs.2,11,662/- within a period of 30 days of the order and in default to the payment of compensation amount further three months simple imprisonment, notes that the accused no.2 was not Page 14 of 19 Downloaded on : Wed Jun 12 20:51:26 IST 2024 NEUTRAL CITATION R/CR.RA/771/2024 ORDER DATED: 10/06/2024 undefined present before the Court, when the judgment was pronounced.
14. Section 418(2) of Cr.P.C. provides that where the accused is not present in Court when he is sentenced to such imprisonment as is mentioned in sub-section (1), the Court shall issue a warrant for his arrest for the purpose of forwarding him to the jail or other place in which he is to be confined; and in such case, the sentence shall commence on the date of his arrest. Section 419 of Cr.P.C. refers that every warrant for the execution of a sentence of imprisonment shall be directed to the officer in charge of the jail or other place in which the prisoner is, or is to be, confined. The impugned order of the 7th Additional District and Sessions Judge, Ahmedabad (Rural) does not notes as to whether the warrant for execution of sentence had been executed, though ordered by the Court. The warrant was for bringing him before the Court Page 15 of 19 Downloaded on : Wed Jun 12 20:51:26 IST 2024 NEUTRAL CITATION R/CR.RA/771/2024 ORDER DATED: 10/06/2024 undefined convicting.
14.1 Section 389(3) of Cr.P.C., expresses that if the convicted person satisfies the Court by which he is convicted, that he intends to present an appeal, the Court shall, where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or, where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the appellant Court under sub-section (1) of section 389 of Cr.P.C., and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended. But, in a case, where the order of sentence has been passed in his absence and non- bailable warrant is not executed, and as referred Page 16 of 19 Downloaded on : Wed Jun 12 20:51:26 IST 2024 NEUTRAL CITATION R/CR.RA/771/2024 ORDER DATED: 10/06/2024 undefined hereinabove noted in the case of Jain Babu (supra), that when the presence of the accused is exempted under Section 205 Cr.P.C. and when the accused is on bail, then under the scope of section 389(3) Cr.P.C., the sentence can be suspended.
14.2 In the referred judgment of Jain Babu (supra), the expressions "being on bail" and "is on bail" appearing in Section 389(3) (i) and (ii) Cr.P.C. is said to be read and understood reasonably to include an accused from whom bail has not been demanded at all and who enjoys his freedom. Further observations leads to the judicial functionary unable to find space to extend the benefit of Section 389(3) Cr.P.C to an accused who enjoys his freedom, who is not in custody, who has not been directed even to offer bail and who has been exempted from personal appearance under Section 205 Cr.P.C. It has been noted that the sentence imposed on an exempted Page 17 of 19 Downloaded on : Wed Jun 12 20:51:26 IST 2024 NEUTRAL CITATION R/CR.RA/771/2024 ORDER DATED: 10/06/2024 undefined accused, in whose absence judgment is pronounced need not be executed till the next date of posting, and on such next date he must be directed to appear in person or produce order of suspension, if any, from the appellate court. Further it has been noted that an exempted person who has been directed only to appear to receive judgment must be held to be a person to whom the benefit of Section 389(3) Cr.P.C is available.
15. In view of the observation made in the case of Ishwarbhai Hirabhai Chunara (supra), this Court also deems fit to grant an opportunity to the applicant-accused to appear before the learned 10th Additional Judicial Magistrate, First Class, Ahmedabad (Rural), and on the date of appearance, it would be open for the applicant to file an application under section 389(3) Cr.P.C. making a prayer for provisional bail to enable him to prefer Criminal Appeal before the Sessions Court against the conviction and sentence. The Page 18 of 19 Downloaded on : Wed Jun 12 20:51:26 IST 2024 NEUTRAL CITATION R/CR.RA/771/2024 ORDER DATED: 10/06/2024 undefined delay condonation application, if necessary, may again be preferred and reheard on merits.
16. In view of the same, the non-bailable warrant, which has been issued in view of the conviction to face the sentence is converted into bailable warrant of Rs.10,000/-. Further, the applicant is also directed, and as ordered by the trial Court, to deposit the compensation amount of Rs.2,11,662/-, on or before the date of appearance before the concerned trial Court.
17. The application stands disposed of. Direct service is permitted.
(GITA GOPI,J) Pankaj Page 19 of 19 Downloaded on : Wed Jun 12 20:51:26 IST 2024