Gujarat High Court
Bhagwanji @ Bhalu Sarmanbhai Kodiyatar vs State Of Gujarat on 16 March, 2017
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.RA/119/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (AGAINST CONVICTION) NO. 119 of
2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE Z.K.SAIYED
================================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
================================================================
BHAGWANJI @ BHALU SARMANBHAI KODIYATAR....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
================================================================
Appearance:
MR JAYPRAKASH UMOT, ADVOCATE for the Applicant(s) No. 1
MR. N.J.SHAH, APP, for the Respondent(s) No. 1
================================================================
CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 16/03/2017
CAV JUDGMENT
[1] Present Criminal Revision Application has been filed by the applicant-original accused under Section 397 read with Section 401 read with Section 482 of the Code of Criminal Procedure, interalia challenging the judgment and order dated 23.12.2016 passed by the learned 4th additional Sessions Judge, Junagadh Page 1 of 7 HC-NIC Page 1 of 7 Created On Sun Aug 13 15:25:19 IST 2017 R/CR.RA/119/2017 CAV JUDGMENT in Criminal Appeal No.65 of 2008, whereby the conviction imposed upon the applicant by the learned Judicial Magistrate First Class, Mangrol in Criminal Case No.164 of 2007 vide order dated 07.09.2007 under Section 51(1)B of the Prisons Act for a period of two years is confirmed, whereby the applicant was sentenced to undergo rigorous imprisonment for a period of two years, with fine of Rs.200/- in default, further simple imprisonment for a period of two months.
[2] It is the case of the prosecution that the applicant was undergoing conviction in Central Jail, Ahmedabad in connection with the FIR being I-C.R. No. 05 of 2000 registered with Shil Police Station, Junagadh and the applicant was granted parole leave and he had to surrender before the jail authority on 15.02.2014 but the applicant could not surrender on time. Therefore, the Jailor of central jail, Ahmedabad had given complaint.
[3] Thereafter, investigation was carried out and statement of the witnesses were recorded and charge-sheet was filed, which was registered as Criminal Case No.164 of 2007. Then, the accused was arrested and sent to Ahmedabad Central Jail.
[4] On the basis of above allegations, charge was framed against the accused and read-over and explained to the accused for the alleged offences and plea was recorded at Exh.4, wherein, accused pleaded not guilty to the charge and claimed to be tried.
[5] In order to bring home the charges against the Page 2 of 7 HC-NIC Page 2 of 7 Created On Sun Aug 13 15:25:19 IST 2017 R/CR.RA/119/2017 CAV JUDGMENT accused person, prosecution has examined four witnesses and also produced documentary evidences.
[6] After examining the witnesses, further statement of the applicant-accused under Sec. 313 of Cr.PC was recorded, wherein the he stated that he was not arrested and his family members are in jail. He further submitted that he is totally innocent and he is wrongly charge-sheeted in the charge- sheet.
[7] After considering the oral as well as documentary evidence and after hearing the parties, learned Judicial Magistrate First Class, Mangrol, vide judgment and order dated 07.09.2007 convicted the applicant-accused for the aforesaid period.
[8] The aforesaid order was challenged by the applicant by way of Criminal Appeal No.65 of 2008 before the learned Sessions Judge, Junagadh, who vide order dated 23.12.2016 confirmed the order of learned Judicial Magistrate First Class, Mangrol dated 07.09.2007.
[9] Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the learned 4th Additional Sessions Judge, Junagadh, applicant-original complainant has preferred this revision application.
[10] Heard Mr.Jayprakash Umot, learned advocate for the applicant-original and Mr. N.J.Shah, learned Additional Public Prosecutor for respondent-State.
[11] Mr.Jayprakash Umot, learned advocate for the Page 3 of 7 HC-NIC Page 3 of 7 Created On Sun Aug 13 15:25:19 IST 2017 R/CR.RA/119/2017 CAV JUDGMENT applicant contended that the judgment and order passed by the learned Sessions Judge is illegal, invalid and improper. He has also contended that the learned Sessions Judge has not considered the case of the defence and material evidence produced on record and has passed absolutely wrong order. He has contended that the prosecution has miserably failed to prove its case beyond reasonable doubt, yet the learned Sessions Judge has not considered the probable defence and has wrongly convicted the applicant. Learned advocate for the applicant argued at length and contended that the judgment and order of the learned trial Judge is against the provisions of law and learned trial Judge has wrongly considered the evidence of the prosecution and wrongly convicted them for the alleged offences. He further contended that in present case, prosecution has failed to prove allegations levelled against the applicant. He then contended that there is material contradiction in the depositions of the witnesses. If the deposition of PW-1 Iqbalsha Adremansha is perused, he admitted in his cross-examination that he has signed the panchanama, but he is not supporting the contents of the panchnama. He contended that Investigating Officer has not recorded statement of any independent witnesses or family members of the applicant. He then contended that the Investigating Officer admits in his deposition that before filing of the charge-sheet, he has to obtain permission of the Court or superior officer, which he had not obtained. He therefore, urged that present application may be allowed and some leniency may be awarded to the applicant.
[12] Mr. N.J.Shah, learned Additional Public Prosecutor for respondent-State has contended that the defence raised by Page 4 of 7 HC-NIC Page 4 of 7 Created On Sun Aug 13 15:25:19 IST 2017 R/CR.RA/119/2017 CAV JUDGMENT the present applicant that due to financial difficulties faced by his family members, he could not surrender in time, cannot be considered in favour of the applicant. He further contended that though he was released on 02.01.2004 on parole leave, he surrendered after two years and six months i.e. in the month of July, 2016. Thus, he was absconding for the period of two years and six months. Mr. Shah further contended that now a days, the situation like the present one has become rampant. In the Court proceedings so many matters, the endorsement is always found in the board that the accused or the appellant or the applicant is not traceable. Due to non-availability of the convict-accused, even this Court or lower Court is unable to consider the appeals and revisions for final hearing. He further drew attention of the Court to the orders passed by Co- ordinate bench of this Court as well as Division Bench of this Court, in which this Court in the same set of affairs i.e. non- availability of the convict due to non-surrender of the accused upon completion of parole/furlough/temporary bail period. In result of that order, Home Department of the State has considered the said and Special Squad for parole jumpers/bail jumpers/furlough jumpers is appointed at every Districts of the State, which is still in force.
[13] So far as the contention of the applicant that the jail authority has no power to directly file the proceedings against the applicant on account of non-surrendering of the applicant upon completion of the parole leave period and the jail authority has to obtain sanction from the competent superior authority, it is submitted by learned APP that the jail authority is not duty bound in law to seek permission of the higher authorities to prosecute the convict for not obeying the Page 5 of 7 HC-NIC Page 5 of 7 Created On Sun Aug 13 15:25:19 IST 2017 R/CR.RA/119/2017 CAV JUDGMENT conditions imposed while he was granted parole leave and who absconded himself for a period about two years and six months. He further in this regard submitted that as per the Prisons Act, jail authority maintenance a register showing incoming and outgoing of the convicts and also the late entry of the accused after granted bail to him is also recorded in the said register, which is always supervised by the higher authorities from time to time. Mr. Shah, lastly contended that present revision application has no weight and therefore, the same may be required to be dismissed.
[14] I have gone through the impugned judgments and orders passed by both the Courts below and oral as well as documentary evidence produced on record of the case. I have read the oral evidence of prosecution witness and also perused the charge framed against the applicant-accused.
[15] The applicant herein remained absconder for a period of two years and six months. The cause which is disclosed by the applicant that to help the family members, who were facing financial problems, he could not surrender on time, cannot be considered, when he was released on condition on parole leave for a particular period. It is also disclosed before this Court that in so many matters, the convicts are not available for final hearing. The Courts are always issuing bailable and non-bailable warrants and Special Squad nominated by the State at every Districts and they are making full efforts to find out and search out the said absconding persons and due to that pendency of the criminal appeals are increasing in a huge numbers. In present case, I have minutely perused the provisions of Prisons Act. Learned APP has argued Page 6 of 7 HC-NIC Page 6 of 7 Created On Sun Aug 13 15:25:19 IST 2017 R/CR.RA/119/2017 CAV JUDGMENT that name of the absconders, time of the absconding period which is always mentioned in register and that is always in the knowledge of the higher authorities of the jail. In present case, I am of the view that defence taken by the learned advocate for the applicant cannot be entertained. Present applicant has committed the said offence and he was absconder for a period of two years and six months. In such case, no leniency can be awarded to the present applicant. From the overall discussion, I am of the opinion that no prima-facie case is found against the applicant and learned trial Judge has rightly convicted the applicant.
[16] I am, therefore of the opinion that the learned trial Judge has not committed any error in convicting the applicant- accuse. Therefore, no interference is required. The judgment and order of conviction dated 07.09.2007 passed in Criminal Case No.164 of 2007 by the learned Judicial Magistrate First Class, Mangrol and order 23.12.2016 rendered in Criminal Appeal No.65 of 2008, by the learned 4th additional Sessions Judge, Junagadh, are hereby confirmed. The present Criminal Revision Application deserves to be dismissed and is hereby dismissed. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.
(Z.K.SAIYED, J.) siddharth Page 7 of 7 HC-NIC Page 7 of 7 Created On Sun Aug 13 15:25:19 IST 2017