Babubhai Bokhiria Conviction Stayed HC Judgment

8/11/2019 Babubhai Bokhiria Conviction Stayed HC Judgment

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R/CR.RA/490/2013 CAV JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL REVISION APPLICATION (AGAINST CONVICTION) NO.490 of 2013

With

CRIMINAL REVISION APPLICATION NO. 613 of 2013With

CRIMINAL REVISION APPLICATION NO. 614 of 2013

With

CRIMINAL REVISION APPLICATION NO. 616 of 2013

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE S.G.SHAH

================================================================

1 Whether Reporters of Local Papers may be allowed to seethe judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the

judgment ?

Whether this case in!ol!es a substantial "uestion of law asto the interpretation of the #onstitution of $ndia% 1&'( or anyorder made thereunder ?

' Whether it is to be circulated to the ci!il judge ?

================================================================

DILIPBHAI JIVABHAI KATARIYA....Applicant(s)

VersusSTATE OF GUJARAT & 1....Respondent(s)

================================================================

Appearance:

MR ND NANAVATI, SR.ADVOCATE with MR BM MANGUKIYA, ADVOCATE

for the Applicant(s) No. 1

MS BELA A PRAJAPATI, ADVOCATE for the Applicant(s) No. 1

MR HL JANI, PUBLIC PROSECUTOR for the Respondent(s) No. 1

================================================================

#)R*+, HONOURABLE MR.JUSTICE S.G.SHAH

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$ection 45 of $ection of the 6epresentation of the Peoples Act, hen

conviction of respondent No.2 does not dis


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they ant to emphasi?e on the practice folloed by the $essions -ourt

and the $tate as prosecuting agency through their prosecutors, they ould

have preferred appropriate litigation, may be P;", if la and rule so

permit. %herefore, ; do not see any reason to interfere in the impugned

order in any manner. !oever, for coming to such conclusion and to

anser the issues raised by the petitioners, there is no option but to verify

certain details and to determine the relevant issues.

. @nfortunately, on factual aspect also, the basic facts are certainly

against the petitioners, ho are not only re


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survey. %herefore, he has lodged a complaint against such persons for

stealing limestone from the land, hich as leased to them. !oever, so

far as & acres land is concerned, it is his case that it as obtained by his

company from one "a+manbhai Aagat. %hough the statement is not clear

and vague, as it transpires that initially the lease as in the name of

"a+manbhai Aagat, and in (00, probably, it as sub3leased to

$aurashtra -hemicals "td. %he bare perusal and reading of complaint

ma8es it very much clear that complaint is basically u/s.)'0 regarding

e+traction and theft of limestone from the property hich is leased in

favour of $aurashtra -hemicals "td. and, therefore, it is a private

complaint by a private person for his property ith allegation that it has

been stolen and that too ith such a vague statement in the complaint that

such e+traction or8 as continued or carried out for last five years. >ne

more surprising statement is to the effect that complainant as aare

about the fact that such allegedly stolen limestone as going to %A%A

factory, then, practically, it is a dispute beteen to business houses,

namely, $aurashtra -hemicals "td. And %ata :actory in surrounding areaand more particularly even after getting the lease, if $aurashtra -hemicals

"td. has never bothered either to secure the boundaries of lease property

or to e+tract the re


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of public property, is being supported by the -ourt and the $tate

machinery. Needless to say that if respondent No.2 has committed even a

small offence or even a theft of small amount, if there is sufficient

evidence against him, he ould certainly be convicted and to that e+tent,

the la ill ta8e its on course.

(&. !oever, in vie of such bac8ground, the real


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therefore relevant to recollect the averments in pleading of such revision

applications herein though all the petitioners are practically same in

verbatim, barring personal details, in paragraph 2) of the applications all

the petitioners have stated that since the respondent No.2 is a poerful

person having political patronage, it is possible that respondent No.2 may

harass Dilipbhai #ivabhait Batariya to stop pursuing the case against the

respondent No.2 and that Mr.Dilipbhai #ivabhai Batariya may also meet

ith the same fate of Mr.hagubhai Devani and that Mr.Dilipbhai

#ivabhai Batariya may also be forced to bac8 out and stop pursuing the

case against respondent No.2 and, therefore, petitioner has filed the

present -riminal 6evision Application. !oever, unfortunately, none of

these applications have clarified and disclosed that ho they are

concerned ith Dilipbhai #ivabhai Batariya, ho is residing at Amreli

and rest of the petitioners are residing in Ahmedabad.

(2. %herefore, it is certain that in fact present revision applications are

not against the $tate, Public Prosecutor as ell as the concerned $essions

-ourt only, but it is mainly to help Dilipbhai #ivabhai Batariya. ;f at all,

there is some disturbance beteen Dilipbhai #ivabhai Batariya and

respondent No.2, it can be ta8en care of in appropriate proceedings

against respondent No.2 including proper complaint, but in any case, such

litigations are not arranted and it certainly re


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there is no lo#$s standito the petitioners in filing such a petition. ut, so

far as present petitions are concerned, it becomes clear and obvious that

petitioners do not have lo#$s standi, more particularly, hen complaint is

a private complaint u/s.)'0 of the ;P- for hich complainant is very

much there to agitate and initiate any such issue. *ven at the cost of

repetition, it is to be recollected that by filing such petitions, practically,

petitioners are trying to get political mileage hen such issue is

repeatedly being raised that particular 9overnment is continuing the

M.".A as a Minister though he is convicted by the -ourt. Needless to say

that irrespective the present legal position after the judgment in "ily

%homas 4supra5 hen present respondent is not affected by such

judgment, there is no reason to find fault ith the impugned order only

because of the position of respondent No.2.

(). Petitioners have relied upon folloing decisionsC3

(. 42&&051 $-- '' 3 $anjay Dutt s. $tate of Maharashtra

through -; ombay.

2. 4(052 $-- 1&& 3 A.6. Antulay s. 6.$.. Naya8.

). 4(0'5 ( $-- 2 3 $heonandan Pasan v. $tate of. ihar E

>rs.

. -riminal Appeal No.(1(1 of 2&( 4Arising out of $.".P.

4-riminal5 No.11 of 2&( -6"MP No.(0( of 2&(5 F

$hyam Narain Pandey s. $tate of @.P.

(. As against that respondents are relying upon folloing decisionsC3

(. A;6 (0 $- 0(( F %ha8ur 6am s. $tate of ihar.

2. A;6 (0 $- 022 F @smanbhai Daoodbhai Memon s.

$tate of 9ujarat.

). 42&(&5(2 $-- 100 F National -ommission of Women s.

$tate of Delhi.

. 42&&5) $-- )0 F Asho8 Bumar Pandey s. $tate of W..

1. 4(005' $-- ('' F Panchhi and >rs. s. $tate of @.P.

. 4(0025 $-- 1) F $imranjit $ingh Mann s. @nion of

;ndia E Anr.

'. 4(0025 $-- F Baramjeet $ingh s. @nion of ;ndia.

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. 4(00(5) $-- '1 F #anata Dal s. !.$.-hodhary E >rs.

0. 42&()5' $-- '0 F Mohit Alias $onu E Anr. s. $tate of

@ttar Pradesh E Anr.

(&. 4(0''5 $-- ()' F Amar Nath E >rs. s. $tate of !aryana

E Anr.((. 42&&5 $-- () F 6ajiv 6anjan $ingh G"alan7 4;;;5 s.

@nion of ;ndia E >rs.

(2. 42&&&5( $-- 2'2 F #ogendra Naha8 E >rs. s. $tate of

>rissa E >rs.

(). 42&()52 $-- )0 F Bishore $amrite s. $tate of @.P. E

>rs.

(. A;6 (0 $- 022 F @smanbhai Daoodbhai Memon E >rs.

s. $tate of 9ujarat.

(1. "earned Public Prosecutor has relied upon folloing citationsC3

(. 42&(&5(2 $-- 100 F National -ommission for Women s.

$tate of Delhi.

2. A;6 (00) $- 2& 3 $imranjit $ingh Mann v. @nion of ;ndia.

). A;6 2&&( $- (')0 3 inoy Bumar v. $tate of @.P.

. A;6 2&(( $- (1 3 Milind $hripad -handur8ar v. Balim

M. Bhan and Anr.

1. #udgment in the case of -riminal Misc.ApplicationNo.(&12 of 2&( ith -riminal Appeal No.0(& of 2&() of

9ujarat !igh -ourt dated (.(&.2&().

(. !oever, as aforesaid, those citations on the issue of lo#$s standi

are not re


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entire set of allegations by the petitioners regarding Public Prosecutor

before the $essions -ourt is unsustainable. :or the purpose, it ould be

appropriate to recollect the provision of $ub3$ection 4(5 of $ection )0,

hich reads as underC3

389. Suspension of sentence pending the appeal; release of appellant on

bail.

4(5 Pending any appeal by a convicted person, the Appellate -ourt may, for

reasons to be recorded by it in riting, order that the e+ecution of the sentence

or order appealed against be suspended and, also, if he is in confinement, that he

be released on bail, or on his on bond.

Provided that the Appellate -ourt shall, before releasing on bail or on his

on bond a convicted person ho is convicted of an offence punishable ith

death or imprisonment for life or imprisonment for a term of not less than ten

years, shall give opportunity to the Public Prosecutor for shoing cause in

riting against such releaseC

Provided further that in cases here a convicted person is released on bail it

shall be open to the Public Prosecutor to file an application for the

cancellation of the bail.

(. %he bare reading of the proviso to $ub3section 4(5, hich is

inserted .e.f. 2)..2&&, ma8es it clear that no it is mandatory to give

opportunity to the Public Prosecutor for shoing cause before releasing

on bail a convict person, ho is convicted of offence punishable ith

death or imprisonment for life or imprisonment for a term not less than (&

years. When such proviso is added, there is reason to believe that it is not

compulsory for the -ourt to call upon the Public Prosecutor hile

releasing the person on bail if sentence is for less than (& years, moreparticularly, hen the second proviso confirms that in case hen a

convict person is released on bail, it shall be open for the Public

Prosecutor to file an application for the cancellation of bail. ;t is obvious

that $ection )0 is dealing ith the suspension of sentence as ell as

releasing the appellant on bail and, therefore, such condition ould be

applicable in both the cases. $uch observation is necessary at this stage

only because of the repeated arguments by the petitioners, referring the

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impugned judgment that Public Prosecutor has not argued anything

before the trial -ourt to oppose such an application. $urprisingly, hen

petitioners have already admitted that even otherise application at *+h.

is not necessary and that respondent No.2 is otherise getting benefit of

suspension of his sentence because of provision of $ub3section 45 of

$ection of 6epresentation of Peoples Act, there is no reason for the

prosecutor before the trial -ourt to oppose such an application. !oever,

it cannot be ignored that the trial -ourt has recorded in one sentence that

he has heard learned D.9.P for the respondent F $tate and perused the

record of the loer -ourt. %herefore, it cannot be said that District

9overnment Pleader has not opposed the application, hich otherise

cannot be opposed as recorded herein above. %herefore, such an argument

and attempt to loer don the morale of the $essions -ourt is seems to

be nothing but an attempt to commit the contempt of -ourt, more

particularly coupled ith such arguments hen petitioners have alleged

against the attitude of the concerned #udicial >fficer ith concerned

District 9overnment Pleader and also tried to get the -riminal Appealtransferred from the -ourt of concerned #udicial >fficer.

(0. ; have perused the impugned order and ; do not find any illegality,

irregularity, arbitrariness or perverseness in such an order, though learned

senior counsel Mr.N.D.Nanavati tried to emphasi?e that $essions #udge

has ta8en @3turn after e+plaining the provision of la in paragraph , but

alloed the application. @nfortunately, this is nothing but an attempt to

ta8e advantage of approbate and reprobate both i.e. on one hand, hen it

is categorically and fairly admitted that irrespective of application and

order at *+h. and impugned order, the respondent No.2 certainly gets the

benefit of $ub3section of $ection of 6epresentation of Peoples Act

and thereby his position ould not change even in absence of such

application and on the other hand, petitioners find fault ith the

impugned order and more particularly language of such order hen

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submission by learned D.9.P are not reproduced. $uch practice is

certainly re


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that application is filed against the concerned #udge before the !igh

-ourt ma8ing allegation against him, but ith direction that applicants

shall produce relevant evidence as alleged by them in their application

before the -ourt ithin ) days and arned the applicants to remain in

their limit hile ma8ing such submissions. Practically, perusal of the

record calls for scrutiny of all these applications and criminal appeal

pending before the $essions -ourt, Porbandar so as to verify that hether

contempt proceedings can be initiated against the petitioners or not.

2(. ;n any case, perusal of entire record certainly ma8es it clear that

these applications are nothing but an abuse of judicial process.

22. ;n vie of above facts and circumstances, ; do not see any

substance in these revision applications and, hence, same deserve to be

dismissed.

2). :or the foregoing reasons, all -riminal 6evision Applications are

dismissed.

(S.G.SHAH, J.)binoy

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