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Gujarat High Court · body

2024 DIGILAW 1818 (GUJ)

Bhavesh Nandkishor Rathod v. State Of Gujarat

2024-09-06

GITA GOPI

body2024
ORDER : 1. Learned advocate Mr. Vedant D.Gaikwad for the applicant submits that the challenge has been given to the order dated 29.07.2024 passed by 3rd Additional District and Sessions Judge, Vadodara below Exh.1 in Criminal Appeal No.84 of 2024 dismissing the appeal, as dismissed for default. 2. The revision has been filed under section 438 and 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as ‘BNSS’ for short). The order, which has been passed is as under: “On perusal of record, it transpires that the applicant has remained absent since last may adjournments. The applicant has not fulfilled the condition as per order below Ex.4 and not paid the entire 20% amount of Rs.3,10,000/- till today. Today also, this Court has repeatedly called out the applicant, but, neither the applicant nor his learned advocate is present before this Court. So, this Court believes that the applicant and/or his Learned Advocate are not vigilant and not interested in the matter. Therefore, there is no need to list this matter on further date and no fruitful purpose would be served. Hence, the matter is dismissed for default. The order passed below stay application Exh.4 in this matter, is vacated.” 3. Learned advocate Mr. Gaikwad referring to the judgment of Dhananjay Rai @ Guddu Rai Vs. State of Bihar, reported in 2022 (14) SCC 95 , and the judgment of K. Muruganandam & Ors. Vs. State Res. By the Deputy Superintendent of Police & Anr., rendered in Criminal Appeal No.809 of 2021 on 12.08.2021, submitted that the appeal cannot be dismissed for default on any of the ground after its admission. 3.1 Referring to the judgment of Dhananjay Rai @ Guddu Rai (supra), Advocate Mr. Gaikwad submitted that even if the accused is absconding, the same also could not be made a ground in dismissing the appeal. 3.2 Advocate Mr. Gaikwad stated that the order of deposit of 20% cannot be made in section 138 proceedings, as laid down in the case of Jamboo Bhandari Vs. Madhya Predesh State Industrial Development Corporation Ltd. And Ors., reported in (2023) 10 SCC 446 , unless the order is made giving reasons, where the Court has to consider and to decide about the merits of the matter and having found the exceptional case, no such order ought to have been made. 3.3 Mr. Madhya Predesh State Industrial Development Corporation Ltd. And Ors., reported in (2023) 10 SCC 446 , unless the order is made giving reasons, where the Court has to consider and to decide about the merits of the matter and having found the exceptional case, no such order ought to have been made. 3.3 Mr. Gaikwad, learned advocate submitted that the condition for depositing compensation/fine amount of Rs.3,10,000/- would amount to denial of valuable right of the revisionist to continue with his appeal, as he would not be in a position to pay the amount. Such condition would be onerous leading to denial of statutory right of appeal. 4. Since the matter requires immediate recourse, this Court does not feel necessary to hear the other side, which option can be exercised by the Court under section 444 of the BNSS. 4.1 In Dhananjay Rai @ Guddu Rai (supra), the Hon’ble Supreme Court in paragraph no.8 had observed as under: “8. The anguish expressed by the Division Bench about the brazen action of the appellant of absconding and defeating the administration of justice can be well understood. However, that is no ground to dismiss an appeal against conviction, which was already admitted for final hearing, for non- prosecution without adverting to merits. Therefore, the impugned judgment will have to be set aside and the appeal will have to be remanded to the High Court for consideration on merits.” 4.2 In K. Muruganandam & Ors. (supra), while noting that if the accused does not appear through counsel appointed by him/her, the Court is obliged to proceed with the hearing of the case even after appointing an amicus curiae, but cannot dismiss the appeal merely because of non- representation or default of the advocate for the accused. The Hon’ble Apex Court has relied upon the judgment of Kabira Vs. State of Uttar Pradesh, reported in 1981 (Supp.) SCC 76 and Mohd. Sukur Ali Vs. State of Assam, reported in (2011) 4 SCC 729 . 5. Here, in the present matter, the learned Judge has noted that the applicant has remained absent since long, nor the Advocate was present. The learned Judge has also noted that the applicant has not fulfill the condition as per order below Exh.4, where he was ordered to pay 20% amount of Rs.3,10,000/-. 5. Here, in the present matter, the learned Judge has noted that the applicant has remained absent since long, nor the Advocate was present. The learned Judge has also noted that the applicant has not fulfill the condition as per order below Exh.4, where he was ordered to pay 20% amount of Rs.3,10,000/-. When the matter was called out, neither the Advocate nor the applicant appeared and on that ground the matter was dismissed for default. 6. In Jamboo Bhandari (supra), the Hon’ble Apex Court has observed that deposit of minimum 20% amount as laid down in Surinder Singh Deswal Vs. Virender Gandhi, reported in (2019) 11 SCC 341 , is not an absolute rule. It was further held that it is not mandatory for accused to specifically plead that the case falls in exception to the 20% minimum deposit rule, since when accused applies under section 389 Cr.P.C. for suspension of sentence, he normally applies for grant of relief of suspension of sentence without any condition. 6.1 The Hon’ble Supreme Court further held that, in Surinder Singh Deswal (supra), it was held that a purposive interpretation should be made of section 148 of N.I. Act, and, hence, normally appellate court will be justified in imposing condition of deposit as provided in section 148 of N.I. Act; however, in a case where appellate court is satisfied that condition of deposit of 20% will be unjust or imposing such a condition will amount to deprivation of right of appeal of appellant, exception can be made for reasons specifically recorded. It was, therefore, held that when appellate Court considers prayer under section 389 Cr.P.C. of an accused who has been convicted for offence under section 138 N.I. Act, it is always open to appellate court to consider whether it is an exceptional case which warrants grant of suspension of sentence without imposing condition of deposit of 20% of fine/compensation amount. 7. Non-deposit of the compensation or fine amount cannot be made a ground for dismissal of the appeal, since under section 389 of Cr.P.C., when the sentence is suspended and appeal is admitted, where as provided under section 357(2), and if the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or if an appeal be presented before the decision of appeal. 8. 8. Here, in this case, when the appeal has been admitted, the learned appellate Court cannot insist for order to pay compensation amount, when the order has been made by the trial Court to pay the compensation in accordance to section 357 of Cr.P.C., the appellate Court ought not to have passed any such order, as hearing of the appeal with insistence for deposit of fine amount under section 357 of Cr.P.C., would obstruct the valuable right of the revisionist, where in the present BNSS, such corresponding provision is made under section 395(2) of BNSS, which is reproduced hereunder: “Section 395(2) - If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal.” 9. In view of the provision of law, insistence for payment of compensation/fine amount before the decision in the appeal as contemplated under section 357 Cr.P.C. (395 of BNSS) is an order suffering from illegality, further dismissal of appeal for default without hearing on merits is also bad in law. 10. In the result, the order impugned dated 29.07.2024 passed by 3rd Additional District and Sessions Judge, Vadodara below Exh.1 in Criminal Appeal No.84 of 2024. It is ordered that Criminal Appeal No.84 of 2024 be restored on the file of the learned 3rd Additional District and Sessions Judge, Vadodara with direction to the concerned Judge that a notice be issued to the appellant and his Advocate to remain present before the Court for hearing. 11. Advocate Mr. Gaikwad, at this stage, submitted that the applicant is in jail. 11.1 In view of the same, the applicant- accused is ordered to be released forthwith. 12. In view of the above observations and directions, the present application stands disposed of. Direct service today is permitted.