Research › Search › Judgment

Gujarat High Court · body

2020 DIGILAW 110 (GUJ)

Ghanshyambhai Madhavlal Patel v. State of Gujarat

2020-01-21

SONIA GOKANI

body2020
JUDGMENT : SONIA GOKANI, J. 1. Revisionist is Shri Ghanshyambhai Madhavlal Patel, father of Rahul Patel, victim in the incident of hit and run case, registered vide C.R. No. I-79 of 2013 with Vastrapur police station for the offences punishable under sections 279, 338, 427, 304A of the Indian Penal Code and under sections 177, 188 and 134(1)(B) of the Motor Vehicles Act against respondent No. 2, where subsequently, section 304 Part II is added, which was registered eventually as Sessions Case No. 41 of 2013 in the Court of learned Additional Sessions Judge, Ahmedabad (Rural). The Sessions Court convicted respondent No. 2 under section 304 Part II of Indian Penal Code and sentenced and ordered him to undergo rigorous imprisonment of 05 years and fine of Rs. 25000/- in default of fine 07 years of simple imprisonment. He is also convicted under section 279 of the Indian Penal Code for six months simple imprisonment and fine of Rs. 1000/- and in default, 01 month of simple imprisonment. He is convicted under section 427 of the Indian Penal Code and sentenced for 01 year of simple imprisonment and fine of Rs. 5000/- in default of simple imprisonment. Learned Sessions Judge has not passed order of any sentence under sections 134 (1)(b), 177 and 184 of the Motor Vehicles Act. 2. This Court at the time of admission of this Revision on 03.08.2015 passed the following order: “1. This revision application is preferred under Section 401 read with Section 397 of the Code of Criminal Procedure wherein the challenge is made to the order of conviction and sentence passed by the learned 2nd Additional Sessions Judge, Ahmedabad (Rural), Mirzapur, Ahmedabad in Sessions Case No. 41 of 2013 dated 13.07.2015. 2. Learned advocate Mr. Bharat K. Dave appearing with Mr. Jeet J. Bhatt, learned advocate for the applicant has submitted to this Court that the order of sentence under Section 304(II) of the Indian Penal Code is only for five years however as provided under the Statute, the period of 10 years ought to have been considered by the Court. It is also their say that only on the ground of young age of the respondent-convict, so also on the ground that this being the first offence of the respondent that the Court has reduced the sentence. It is also their say that only on the ground of young age of the respondent-convict, so also on the ground that this being the first offence of the respondent that the Court has reduced the sentence. However, the record already produced before the trial Court clearly indicates that this was the second offence of the respondent No. 2. He had already been convicted in Criminal Case No. 2898 of 2011 which is proceeded before the learned Additional Sessions Judge, First Class, Ahmedabad (Rural), Mirzapur, Ahmedabad and concluded on 20.03.2011 where the respondent No. 2 had admitted his guilt under Section 185 of the Motor Vehicles Act and the Court had punished him with fine of Rs.500/or in default, to undergo 3 days of simple imprisonment. No revision nor challenge was made before the Higher Forum. He was driving the vehicle in a drunken condition. 3. It is further urged that the appeal preferred by the respondent-convict challenging the judgment and order of conviction is already admitted therefore, this revision application also requires consideration. It is also urged that the challenge under Section 372 of the Code of Criminal Procedure is not feasible considering the scope of appeal by the victim on complainant. Having thus heard learned advocates for respective parties and bearing in mind all the issues which have been raised particularly in relation to the reasoning given for lesser punishment under the law, this appeal is admitted. Hence, Rule. Learned Additional Public Prosecutor waives service of notice of rule on behalf of the respondent-State. 4. Let notice of Rule be issued to the respondent No. 2 making it returnable on 10.08.2015, as the Criminal Appeal No. 864 of 2015 is to appear on the Board of 10.08.2015. 5. Since both the matters arise from the very judgment, Registry to place this matter for obtaining the order of Hon’ble the Acting Chief Justice for placing the same before the appropriate bench.” 3. Matter, thereafter, has been sent to this Court to be proceeded along with Criminal Appeal No. 864 of 2015 preferred against the judgment and order of conviction by the respondent No. 2 and Criminal Appeal No. 1016 of 2015, preferred by the State seeking enhancement of the sentence as also the amount of compensation for victims. 4. Matter, thereafter, has been sent to this Court to be proceeded along with Criminal Appeal No. 864 of 2015 preferred against the judgment and order of conviction by the respondent No. 2 and Criminal Appeal No. 1016 of 2015, preferred by the State seeking enhancement of the sentence as also the amount of compensation for victims. 4. During the proceedings of these appeals and revision, an affidavit came to be filed by the revisionist Shri Premshankar Motilal Dave, wherein he has stated that the parties have sat together and amicably settled their disputes and have decided to have peaceful and amicable relationship and therefore, urged to permit withdrawal on not pressing this revision application. 4.1. Relevant paragraphs of this affidavit are reproduced hereunder in the words of this revisionist: “2. It is stated that all the parties sat together in presence of elderly persons of the family. The parties have amicable settled the dispute and had decided to have peaceful and amicable relations between each other. It is also stated that me and my family are sufficiently compensated by the family of Vismay Amit Shah and I also believe that family members of Vismay Amit Shah have also suffered. 3. In view of the above facts, being the father of victim, I do not have any grievance against Vismay Amit Shah and therefore, appropriate order may be passed in proceedings pending before the Hon'ble High Court of Gujarat, at Ahmedabad which would sub-serve the ends of justice as that will maintain peace and harmony as well as ensure cordial relations between the parties. 4. It is also stated that I also undertake to cooperate in the proceedings before the court of law and confirm such facts and circumstances as mentioned hereinabove in person as and when necessary. 5. In view of the above, I undertake to cooperate the present appellant in Criminal Appeal No. 1016 of 2015 filed by the State of Gujarat in getting that also appropriately disposed of. What is stated hereinabove is true to the best of my own knowledge, information and belief; and I believe the same to be true and the present affidavit is done without coercion or influence.” 5. Request is also made by Mr. Yogesh Lakhani, learned Senior Advocate appearing with learned advocate Mr. Maunish Pathak to accede to the request of learned advocate Mr. Bharat Dave appearing with Mr. Request is also made by Mr. Yogesh Lakhani, learned Senior Advocate appearing with learned advocate Mr. Maunish Pathak to accede to the request of learned advocate Mr. Bharat Dave appearing with Mr. Jeet Bhatt, learned advocate for the Revisionist who have not pressed the revision and sought to withdraw this revision. 6. This Court had ascertained from the revisionist in person and enquired with regard to the element of coercion or pressure and, in no unclear terms, it has conveyed that without any outside influence or coercion as stated in affidavit, the family members of both the victims had sat with the family members of the respondent No. 2 and have chosen to settle their disputes. The compensation given by the respondent's family is also sufficient for the family of victims to sustain themselves, as their young sons have passed away and this has been done as the same is permissible under the law. 6.1. This has been objected to by the State on the ground that the appeal of the State for enhancement and that of the respondent convict are pending and withdrawal of this revision should not have any bearing on such Appeal. 7. This Court notices that the revisional jurisdiction can be exercised by the High Court at the instance of the private complainant. 7.1. Apt would be to reproduce profitably, at this stage, the said provision as under: Section 401 in the Code of Criminal Procedure, 1973 “401. High Court’s Powers of revisions. (1) In the case of any proceeding the record of which has been called for by itself or Which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392. (2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. (2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. (4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. (5) Where under this Code tan appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice.” 8. Against the order of acquittal, the private complainant can move for revisional jurisdiction before the High Court, where the trial Court has not regarded admissible evidence adduced by the prosecution or where it has wrongly denied the evidence, which prosecution was desirous of producing or where the trial court had no jurisdiction and acquitted the accused or where by considering irrelevant material, the trial Court/the first appellate Court has decided the matter as held by the Apex Court in the case of Sheetala Prasad and Others vs. Sri Kant and Others, AIR 2010 SC 1140 : (2010) 2 SCC 190 . 9. It is a trite law that the revisional jurisdiction, when is to be exercised involving the private complainant, it should not be done lightly, particularly against the order of acquittal and only in exceptional cases, in the interest of public justice for correction of manifest illegality or prevention of course of miscarriage of justice, the Court needs to interfere, as held by the Apex Court in the case of Kaptan Singh and Others vs. State of Madhya Pradesh and Another, (1997) 4 SCC 185. 10. Revisional jurisdiction since is not required to be exercised by this Court on account of request made by the learned counsel for the Revisionist, ambit and scope of revision deserves no further dilation. 11. 10. Revisional jurisdiction since is not required to be exercised by this Court on account of request made by the learned counsel for the Revisionist, ambit and scope of revision deserves no further dilation. 11. Considering the submission of both the sides, on the strength of the affidavit and submission made by the learned advocates appearing for the revisionist and noticing that the revisionist is not inclined to proceed further with the revision, which is meant for enhancement of sentence, no private party can be forced to continue its litigation, without, in any manner, affecting the pending appeals of the respondent convict and that of the State, Revision Application is permitted to be withdrawn, since the same is not pressed. 11.1. While so noting, it is also being clarified that the request made by Mr. Lakhani, learned Senior Advocate to firstly decide the aspect of compoundability, in wake of compromise between the families of victim and respondent No. 2, without entering into the merits, is not being acceded to. His request to give detailed reasons for such denial to decide the said issue on a preliminary basis along with the judgment of appeal is, however, acceded to. 12. Resultantly, present revision application is permitted to be withdrawn and stands disposed of as not pressed in wake of the subsequent development mentioned hereinabove with no order as to costs.