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Gujarat High Court · body

2024 DIGILAW 1539 (GUJ)

Mumtaz Hamid Shaikh v. State Of Gujarat

2024-07-09

GITA GOPI

body2024
ORDER : 1. It has been brought to the notice of this court that though the present applicant had gone for filing the Criminal Appeal challenging the judgment and order dated 05.08.2023 of conviction with an application for condonation of delay and an application under section 389 of Cr.P.C. for suspension of sentence before the appellate Court, Surat for filing the same it was not accepted by the registry and even non- bailable warrant was ordered to be issued on 30.01.2024 by the trial Court. 2. Mr. Vaibhav N.Sheth, learned advocate for the applicant stated that the delay condonation application was not accepted by the Registry on the ground of applicant was not surrendering to the jail. 3. The prayer is made to convert the non- bailable warrant into bailable warrant issued against the applicant by order dated 30.01.2024. 4. Advocate Mr. Sheth submitted that there was order dated 05.08.2023 suspending the sentence of the applicant, which was passed by Special Judge, N.I. court. During this period, the appeal was to be preferred. 4.1 Advocate Mr. Sheth further submitted that the applicant would have all the right to agitate before the appellate Court for extension of suspension of sentence but procedural inconvenience created by the registry has led to delay, which again was proposed to be prayed to condone by moving an application, but the registry has failed to make it convenient for the applicant to place the matter before the concerned appellate Court. Hence, at present, the warrant is at large which would affect the substantial right of the applicant to file an appeal. 5. Mr. Hardik Mehta, learned APP submitted that the applicant was having the knowledge of the proceeding and was required to present the appeal during the period granted by the trial Court, and when the applicant has failed to do so, no concession could be allowed to her, and has requested to observe the conduct of the applicant who failed to surrender submitting that the application be rejected. 6. The applicant lady has been convicted under section 138 of the N.I. Act by the Special Judge, N.I. Court, Surat for a period of one year simple imprisonment and to pay one and half time the amount of the cheque as compensation. 7. In the case of Lallan Singh and others Vs. 6. The applicant lady has been convicted under section 138 of the N.I. Act by the Special Judge, N.I. Court, Surat for a period of one year simple imprisonment and to pay one and half time the amount of the cheque as compensation. 7. In the case of Lallan Singh and others Vs. State of Uttar Pradesh, reported in (2015) 3 SCC 362, 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 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 (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. 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 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 two of the life convicts, held guilty of a double murder, had remained at large for considerably long period.” 8. As per the record, the conviction was suspended under section 389(3) of the Cr.P.C. by the Special Judge, N.I. Court, Surat on 05.08.2023, and the direction was given to receive the order of the appellate Court or else to remain present before the Court on 05.09.2023 to follow the order. 9. The submission was that prior to issuance of the warrant, the applicant had gone before the registry for filing the appeal with prayer for condoning the delay, but was not accepted. The Registry has insisted to accept the same only after surrendering before the authority. 9. The submission was that prior to issuance of the warrant, the applicant had gone before the registry for filing the appeal with prayer for condoning the delay, but was not accepted. The Registry has insisted to accept the same only after surrendering before the authority. A prayer was also made for the copy of the order of warrant, where the Advocate on 26.06.2024 had asked for certified copy showing the reason that they wanted to get the warrant cancelled. Mr. sheth has referred to the order passed by the Court below the application on 27.06.2024. The said order can be considered as to the satisfaction of the grounds raised that though the applicant wanted to file an appeal and wanted to move the Court for cancellation of the warrant, they were restrained, and therefore had to come before this Court. 10. Filing of an appeal is a substantial right of an individual and when the applicant is willing to move the Court for challenging the conviction judgment, and when an opportunity was granted by the trial Court, then it was necessary for the concerned court to observe the grounds for delay and could have permitted the applicant to file the appeal and delay condonation application. The case is of a personal hand loan of Rs.15,000/-, which she has taken from Surat Mahila Seva Nagrik Dhiran Sahakari Mandli. 11. Taking this fact into consideration, warrant issued against the present applicant vide order dated 30.01.2024 by the learned Special Sessions Judge, N.I. Court, Surat below application filed by respondent no.2 is stayed and the applicant is permitted to file an appeal with delay condonation application before the appellate Court impugning the conviction judgment and order. 12. In view of the above, the present application stands disposed of. Direct service is permitted.