Manubhai Haridas Rathod vs State Of Gujarat on 14 March, 2024

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Gujarat High Court

Manubhai Haridas Rathod vs State Of Gujarat on 14 March, 2024

Bench: A.S. Supehia

                                                                                             NEUTRAL CITATION




                              Modification of IA Order dtd.
      R/CR.A/1945/2021       11/03/2024 in R/CR.A/1945/2021IA ORDER DATED: 14/03/2024

                                                                                             undefined




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

[On note for speaking to minutes of order dated 11/03/2024
                   in R/CR.A/1945/2021 ]
    CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF
                 SENTENCE) NO. 2 of 2023
          In R/CRIMINAL APPEAL NO. 1945 of 2021
=============================================

MAHESHBHAI MANUBHAI RATHOD Versus STATE OF GUJARAT ============================================= Appearance:

MR PARTH S TOLIA(5617) for the PETITIONER(s) No. 1 SHIRISHCHANDRA B TOLIA(8163) for the PETITIONER(s) No. 1 MR DHAWAN JAYSWAL, APP for the RESPONDENT(s) No. 1 ============================================= CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA and HONOURABLE MR. JUSTICE VIMAL K. VYAS Date : 14/03/2024 IA ORDER (PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA) The present matter is placed by the Registry before this Court since it is noticed that there was an error crept in the order dated 11.03.2024 passed in the captioned application, wherein and whereby, the sentence recorded by the Trial Court has been suspended by this Court, however, after suspending the sentence, no order of releasing the applicant - convict - Maheshbhai Manubhai Rathod has been passed. It appears that the same is not transcribed in the order. Hence, the following order shall be read :-

"1. Present application is filed, seeking suspension of sentence imposed by the learned Sessions Judge, Bhavnagar, vide judgment and order dated 30.10.2021, passed in Sessions Case Page 1 of 7 Downloaded on : Thu Mar 14 21:59:25 IST 2024 NEUTRAL CITATION Modification of IA Order dtd.

R/CR.A/1945/2021 11/03/2024 in R/CR.A/1945/2021IA ORDER DATED: 14/03/2024 undefined No. 127 of 2019, whereby, the learned Judge convicted the applicant and the co-accused for the offences punishable under Section 302, read with Section 114, of the Indian Penal Code (in brief, 'IPC') and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.15,000/- and in case of default to undergo further simple imprisonment for one month.

2. At the outset, learned Advocate, Mr. Tolia, appearing for the applicant pointed out that the present applicant, who was arraigned as accused No.3, is convicted for the offence punishable under Section 302 of the IPC, though, he was not charged for the same. He invited the attention of this Court to the Charge, Exhibit- 9, which reflects that the accused are charged for the offence under Section 306, read with Section 114, of the IPC.

2.1 In support of his submissions, learned Advocate, Mr. Tolia, placed reliance on the judgment of the Hon'ble Apex Court, rendered in the case of (1) 'Wakil Yadav and Another Vs. State of Bihar', reported in (2000) 10 SCC 500, (2) 'Babu @ Balasubramaniam and Another Vs. State of Tamil Nadu', reported in (2013) 8 SCC 60 and (3) 'Shamnsaheb M. Multani Vs. State of Karnataka', reported in (2001) 2 SCC 577.

2.2 Thus, it was urged that, in fact, this matter is required to be remanded to the concerned trial Court so that proper charge can be framed and the accused can be afforded an appropriate opportunity to deal with the same.

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NEUTRAL CITATION Modification of IA Order dtd.

R/CR.A/1945/2021 11/03/2024 in R/CR.A/1945/2021IA ORDER DATED: 14/03/2024 undefined

3. Learned APP, Mr. Pandya, appearing for the Respondent- State was unable to controvert the contents of the impugned judgment, as to whether any charge was framed by the trial Court for the offence punishable under Section 302 of the IPC.

4. We have perused the judgment of the trial Court threadbare and the evidence on record. A bare perusal of the findings of the trial Court, recorded at Paragraph-29, Page-43, indicates that the trail Court has recorded a definite finding that the accused are guilty for the offence punishable under Section 302, read with Section 114, of the IPC and not for the offence punishable under Section 306, read with Section 114, of the IPC. However, the judgment of the trial Court does not reveal that the charge under Section 302 of the IPC was framed against the accused and as to whether, they were afforded an opportunity to deal with the same.

4.1 At this stage, it would be apposite to refer to the provisions of Sections 216 and 217 of the Code of Criminal Procedure ('the Code', in short), which read thus;

"216.Court may alter charge.(1) Any Court may alter or add to any charge at any time before judgment is pronounced. 912 (2) Every such alteration or addition shall be read and explained to the accused. (3)If the alteration or addition to a charge is such that proceeding immediately with the trial Page 3 of 7 Downloaded on : Thu Mar 14 21:59:25 IST 2024 NEUTRAL CITATION Modification of IA Order dtd.

R/CR.A/1945/2021 11/03/2024 in R/CR.A/1945/2021IA ORDER DATED: 14/03/2024 undefined is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.

(4)If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary. (5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.

217. Recall of witnesses when charge altered. Whenever a charge is altered Page 4 of 7 Downloaded on : Thu Mar 14 21:59:25 IST 2024 NEUTRAL CITATION Modification of IA Order dtd.

      R/CR.A/1945/2021        11/03/2024 in R/CR.A/1945/2021IA ORDER DATED: 14/03/2024

                                                                                              undefined




                     or    added     to     by        the    Court       after          the
                     commencement             of        the         trial,              the
                     prosecutor         and      the        accused        shall          be

allowed- (a) to recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of vexation or delay or for defeating the ends of justice ; (b) also to call any further witness whom the Court may think to be material. B.-Joinder of charges."

4.2 The provisions of sub-Section (4) of Section 216 of the Code mandates that, if, there is alteration or addition of the charge during the proceedings of the trial and such alteration or addition is prejudicial to the interest of the accused, the Court may either direct de novo / new trial or adjourn the trial for such time period, as may be necessary. It also mandates that the trial Court may alter or add a charge before the pronouncement of the judgment and such alternation or addition shall be read to the accused.

4.3 The provisions of Section 217 of the Code stipulates that whenever, a charge is altered or added, after the commencement Page 5 of 7 Downloaded on : Thu Mar 14 21:59:25 IST 2024 NEUTRAL CITATION Modification of IA Order dtd.

R/CR.A/1945/2021 11/03/2024 in R/CR.A/1945/2021IA ORDER DATED: 14/03/2024 undefined of the trial, the accused shall be allowed to recall and re-examine the witnesses qua such alteration or addition of charge.

4.4 We do not find from the record that the trial Court has invoked the provisions of Section 216 of the Code. Under the circumstances, in light of the aforesaid facts, since, the present applicant is convicted for the serious offence of murder, by invoking the provisions of Section 302 of the IPC, for which he was granted no opportunity, the applicant is entitled for suspension of sentence under Section 389 (2) of the Code.

4.5 Since, learned Advocate, Mr. Tolia, very fairly pointed out that the matter requires to be remanded and since the trial qua two other accused, against whom the charge-sheet came to be filed subsequently, is pending. The captioned appeal is ordered to be listed for hearing, along with Criminal Appeal No. 337 of 2022, on 14th March, 2024.

5. Resultantly, this application is ALLOWED and the sentence imposed by the Sessions Court vide order dated 30.10.2021, passed in Sessions Case No. 127 of 2019, are suspended, pending appeal.

5.1 It goes without saying that we have not examined the evidence, on merits. Rule is made absolute, accordingly.

Direct service is permitted."

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NEUTRAL CITATION Modification of IA Order dtd.

R/CR.A/1945/2021 11/03/2024 in R/CR.A/1945/2021IA ORDER DATED: 14/03/2024 undefined

6. In addition to above order, the following order be read with the order dated 11.03.2024 : -

The applicant shall be released on bail by executing a fresh bond of Rs.15,000/ (Rupees fifteen thousand only) with one surety of the like amount to the satisfaction of the trial Court, on the following conditions that:-

"(a) he shall not take undue advantage of liberty or misuse liberty;

(b) he shall not leave India without prior permission of this Court;

(c) he shall furnish the present address of his residence to the Court concerned at the time of execution of the bond and shall not change the residence without the prior permission of this Court.

(d) he shall proceed with the Criminal Appeal as and when it may be listed:

7. Note for speaking to minutes stands disposed of accordingly. Appeal be listed in seriatim.

8. Registry is directed to issue fresh writ accordingly.

(A. S. SUPEHIA, J) (VIMAL K. VYAS, J) MAHESH/01 Page 7 of 7 Downloaded on : Thu Mar 14 21:59:25 IST 2024 NEUTRAL CITATION Present IA Order is modified vide R/CR.A/1945/2021 IA Order dtd. 14/03/2024 in IA ORDER DATED: 11/03/2024 R/CR.A/1945/2021 undefined IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC. APPLICATION (FOR SUSPENSION OF SENTENCE) NO. 2 of 2023 In R/CRIMINAL APPEAL NO. 1945 of 2021 ========================================================== MAHESHBHAI MANUBHAI RATHOD Versus STATE OF GUJARAT ========================================================== Appearance:

MR PARTH S TOLIA(5617) for the PETITIONER(s) No. 1 SHIRISHCHANDRA B TOLIA(8163) for the PETITIONER(s) No. 1 MR TIRTHRAJ PANDYA, PUBLIC PROSECUTOR for the RESPONDENT(s) No. 1 ========================================================== CORAM: HONOURABLE MR. JUSTICE A.S. SUPEHIA and HONOURABLE MR. JUSTICE VIMAL K. VYAS Date : 11/03/2024 IA ORDER (PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)

1. Present application is filed, seeking suspension of sentence imposed by the learned Sessions Judge, Bhavnagar, vide judgment and order dated 30.10.2021, passed in Sessions Case No. 127 of 2019, whereby, the learned Judge convicted the applicant and the co-accused for the offences punishable under Section 302, read with Section 114, of the Indian Penal Code (in brief, 'IPC') and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.15,000/- and in case of default to undergo further simple imprisonment for one month.

2. At the outset, learned Advocate, Mr. Tolia, appearing for the applicant pointed out that the present applicant, who was arraigned as accused No.3, is convicted for the offence punishable under Section 302 of the IPC, though, he was not charged for the Page 1 of 6 Downloaded on : Thu Mar 14 21:59:25 IST 2024 NEUTRAL CITATION Present IA Order is modified vide R/CR.A/1945/2021 IA Order dtd. 14/03/2024 in IA ORDER DATED: 11/03/2024 R/CR.A/1945/2021 undefined same. He invited the attention of this Court to the Charge, Exhibit-

9, which reflects that the accused are charged for the offence under Section 306, read with Section 114, of the IPC.

4. We have perused the judgment of the trial Court threadbare and the evidence on record. A bare perusal of the findings of the trial Court, recorded at Paragraph-29, Page-43, indicates that the trail Court has recorded a definite finding that the accused are guilty for the offence punishable under Section 302, read with Section 114, of the IPC and not for the offence punishable under Page 2 of 6 Downloaded on : Thu Mar 14 21:59:25 IST 2024 NEUTRAL CITATION Present IA Order is modified vide R/CR.A/1945/2021 IA Order dtd. 14/03/2024 in IA ORDER DATED: 11/03/2024 R/CR.A/1945/2021 undefined Section 306, read with Section 114, of the IPC. However, the judgment of the trial Court does not reveal that the charge under Section 302 of the IPC was framed against the accused and as to whether, they were afforded an opportunity to deal with the same.

4.1 At this stage, it would be apposite to refer to the provisions of Sections 216 and 217 of the Code of Criminal Procedure ('the Code', in short), which read thus;

"216.Court may alter charge.(1) Any Court may alter or add to any charge at any time before judgment is pronounced. 912 (2) Every such alteration or addition shall be read and explained to the accused. (3)If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.

(4)If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of Page 3 of 6 Downloaded on : Thu Mar 14 21:59:25 IST 2024 NEUTRAL CITATION Present IA Order is modified vide R/CR.A/1945/2021 IA Order dtd. 14/03/2024 in IA ORDER DATED: 11/03/2024 R/CR.A/1945/2021 undefined the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary. (5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.

217. Recall of witnesses when charge altered. Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed- (a) to recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re-examine such Page 4 of 6 Downloaded on : Thu Mar 14 21:59:25 IST 2024 NEUTRAL CITATION Present IA Order is modified vide R/CR.A/1945/2021 IA Order dtd. 14/03/2024 in IA ORDER DATED: 11/03/2024 R/CR.A/1945/2021 undefined witness for the purpose of vexation or delay or for defeating the ends of justice ; (b) also to call any further witness whom the Court may think to be material. B.-Joinder of charges."

4.3 The provisions of Section 217 of the Code stipulates that whenever, a charge is altered or added, after the commencement of the trial, the accused shall be allowed to recall and re-examine the witnesses qua such alteration or addition of charge.

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NEUTRAL CITATION Present IA Order is modified vide R/CR.A/1945/2021 IA Order dtd. 14/03/2024 in IA ORDER DATED: 11/03/2024 R/CR.A/1945/2021 undefined 4.5 Since, learned Advocate, Mr. Tolia, very fairly pointed out that the matter requires to be remanded and since the trial qua two other accused, against whom the charge-sheet came to be filed subsequently, is pending. The captioned appeal is ordered to be listed for hearing, along with Criminal Appeal No. 337 of 2022, on 14th March, 2024.

5. Resultantly, this application is ALLOWED and the sentence imposed by the Sessions Court vide order dated 30.10.2021, passed in Sessions Case No. 127 of 2019, are suspended, pending appeal.

5.1 It goes without saying that we have not examined the evidence, on merits. Rule is made absolute, accordingly.

Direct service is permitted.

(A. S. SUPEHIA, J) (VIMAL K. VYAS, J) UMESH/-

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