Partly allowed

Jigneshkumar Veljibhai Tank v. State of Gujarat

Gujarat HC16 Oct 2018CR.MA/30585/2017

Case brief

AI extract

What is this about?

This oral order grants special leave to appeal to the complainant to challenge the acquittal under Section 506(2) IPC in the Sessions Court and claim inadequate compensation, as the original order invoking these grounds was appealable but not taken. Leave is denied for challenging the acquittal under Section 294(A) IPC or the grant of probation, as those were not challenged before the appellate co

What did the court decide?

Special leave to appeal is granted to challenge acquittal under Section 506(2) IPC and inadequate compensation; challenged regarding acquittal under Section 294(A) IPC and probation. Application dispo

Jigneshkumar Veljibhai Tank Vs State of Gujarat — Gujarat HC (2018) — LawSathi Research

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R/CR.MA/30585/2017 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/CRIMINAL MISC.APPLICATION NO. 30585 of 2017

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JIGNESHKUMAR VELJIBHAI TANK

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Versus STATE OF GUJARAT

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Appearance:

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MR VIJAY H NANGESH(3981) for the PETITIONER(s) No. 1 MR PRATIK B BAROT(3711) for the RESPONDENT(s) No. 2,3 MR H K PATEL, ADDL. PUBLIC PROSECUTOR(2) for the RESPONDENT(s) No. 1

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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI

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Date : 16/10/2018

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ORAL ORDER

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This application under Section 372 r/w Section 378 (4) of the Code of Criminal Procedure against the judgment and order of acquittal dated 10.10.2017 passed by the

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learned Sessions Judge, Narmada at Rajpipla
in Criminal Appeal NO.05 of 2016. It emerges

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from the record that the Court of learned
Chief Judicial Magistrate First Class in
Criminal Case No.2295 of 2009 was conducting
the trial for the offences punishable under
Sections 294 (A), 504, 506(1) and 114 of the

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Page 1 of 13

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R/CR.MA/30585/2017 ORDER

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Indian Penal Code. The Court after detailed
recording of the evidence and also after
recording of further statement under Section
313 of the Code of Criminal Procedure, on
hearing both the sides, held that the
complainant failed to prove the offence
punishable under Section 294 (A) of the
Indian Penal Code, whereas the offences under
Sections 504, 506(2) r/w 114 of the Indian
Penal Code and Section 135 of the Bombay
Police Act have been proved. The Court also
convicted both the accused under Sections 504
and 506(2) of the Indian Penal Code and also
under Section 135(1) of the Bombay Police Act

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for one year, four years and six months
respectively with fine, with a further
direction that all the sentences were run
concurrently.

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This acquittal under Section 294(A) given by the Trial Court was not challenged before the Appellate Court, whereas the accused, who had

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Page 2 of 13

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R/CR.MA/30585/2017 ORDER

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been convicted under Section 504 and 506(2)
of the Indian Penal Code as well as Section
135 Bombay Police Act challenged the judgment
and order of conviction and punishment. The
Appellate Court also confirmed conviction
under Section 504 of the Indian Penal Code,
however, acquitted the respondent-accused
under Section 506(2) of the Indian Penal Code
and Section 135 of the Bombay Police Act. It
also returned the fine amount and under
Section 504 of the Indian Penal Code, the
Court exercised the powers under Section 360
of the Code of Criminal Procedure and availed
the benefit of probation. In the Criminal
Appeal No.05 of 2016 on 10.10.2017, this has
aggrieved the original complainant, who is
before this Court seeking Special Leave to
the Appeal to prefer the acquittal Appeal
under Section 372 r/w Section 378 (4) of the
Code of Criminal Procedure against the
judgment and order of the learned Appellate
Court at Rajpipla in Criminal Appeal No.05 of

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Page 3 of 13

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R/CR.MA/30585/2017 ORDER

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2016.

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According to the appellant-original

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complainant, the judgment and order of the
Appellate Court is totally unjust and illegal

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and is against the settled principles of law.
The Court has disregarded the evidence of the
witnesses which otherwise is very clear and
specific. The Court has also not given the
proper reason nor it appreciated the
statements of the witnesses, only considering
six witnesses out of 13, the Court has
delivered the judgment. No findings have been
given under Section 114 as the accused
persons are the abetter of the crime, who
were present at the place of offence.
Moreover, the Court ought not to have granted

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the benefit under Section 360 of the Code of
Criminal Procedure. Therefore, the request is
made for allowing the Special Leave to Appeal

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to prefer an acquittal appeal under Section

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372 r/w Section 378(4) of the Code of

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Page 4 of 13

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R/CR.MA/30585/2017 ORDER

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Criminal Procedure.

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4.This Court has heard learned advocate,

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Mr.Vijay Nagesh appearing for the applicant
and learned advocate, Mr.Pratik Barot
appearing for respondent Nos.2 and 3 and
Mr.H.K.Patel, learned Additional Public
Prosecutor for respondent-State.

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5.Learned advocate, Mr.Vijay Nagesh appearing
for the applicant along the line of the memo
of the petition has urged that the acquittal
of accused under Section 506(2) r/w Section
114 of the Indian Penal Code is against the
settled principles of law, grant of release

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under Section 360 of the Code of Criminal
Procedure under the Probation of Offenders

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Act is also impermissible. Moreover, the
acquittal under Section 294 (A) can also be
permitted to be challenged although the
challenge to acquittal under Section 294 of

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the Indian Penal Code was not made before the
Appellate Court.

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Page 5 of 13

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R/CR.MA/30585/2017 ORDER

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6.Learned advocate, Mr.Pratik Barot appearing

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for the respondents has urged that no
challenge is made by the State and this is
challenged by the original complainant, who
though can be permitted to question the
judgment of Appellate Court after the
amendment in the Code of Criminal Procedure,
the victim has been given unlimited rights to
prefer an appeal against the order passed by

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the Court of acquitting the accused or
convicting for lesser offence or for imposing
inadequate compensation. At the best, he can
challenge under Section 506(2) r/w Section
114 because of the acquittal given by the
Appellate Forum, however, under Section
294(A) he cannot approach this Court as
before the Appellate Court, no challenge was
made at all.

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7.Learned advocates on both the sides have

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tendered the judgments in support of their
respective versions which are as follow:

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Page 6 of 13

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R/CR.MA/30585/2017 ORDER

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(i) Dhurukumar s/o Radhakishan Pitti and
Anr. vs. State of Maharashtra, reported in
(2017) 9 SCC 441

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(ii) State of Gujarat vs. Ayub Ganibhai
Odiya, reported in 2017(1)G.L.H. 809,

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(iii) Dalbir Singh vs. State of Haryana and
others, reported in AIR 2000 SC 1677,

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(iv) Lavjibhai Amarsibhai Bhalodiya vs.
Mehmoodaben sic rajabsha @ Rajubhai Abdulsha
Rathod and others passed in Special Criminal
Application No.10076 of 2017.

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8.Learned Additional Public Prosecutor has also
supported the version of learned advocate,
Mr.Pratik Barot. As is quite visible from the
application seeking Leave to Appeal under
Section 372 r/w Section 378 (4) of the Code
of Criminal Procedure questioning the
legality and validity of the judgment and
order of the learned Sessions Court, Narmada

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Page 7 of 13

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R/CR.MA/30585/2017 ORDER

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rendered in Criminal Appeal No.05 of 2016.
The facts which have given a rise to the
present application can be summarized as
under:

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8.1The applicant herein lodged an FIR being
II-C.R.No.142 of 2008 with Rajpipla Police
Station for an incident dated 28.07.2009. The
complainant and his mother, who are also
witnesses in the case of prosecution and his
father Veljibhai and elder sister Sarojben
were at home and mother had gone at 10
O'clock to dry the cloths on the terrace.
When the accused had abused Jatinbhai, the
son of the complainant, and they also abused
complainant's sister, Sarojben that she was

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into the bad occupation and breaking her
matrimonial home, was residing at father's
place and also abused his mother also. When
they were prevented, the accused No.1-Kiran
Morar Bhai with the wooden stick and accused

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No.2 with the firearms rushed to beat them

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Page 8 of 13

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R/CR.MA/30585/2017 ORDER

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when they closed the door, they had
threatened his father that they would be
wanting to do away with him death. They were
too scared to move out and eventually lodged
the complaint.

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9.In this background, the Trial Court as
mentioned herein before being the learned
Chief Judicial Magistrate, District Narmada
on 05.05.2016 convicted not under section 294

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(A), but only under Sections 504 and 506(2)
r/w. Section 114 of the Indian Penal Code and

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Section 135 of the Bombay Police Act. This
acquittal of Section 294 (A) was never
challenged by the present applicant and the
judgment and order of conviction was
challenged before the Court of learned
Sessions Judge, Narmada in Criminal Appeal
No.05 of 2016. There the Court upheld
conviction under Section 504 of the Indian

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Penal Code, however gave acquittal under
Section 506(2) r/w Section 114 of the Indian

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Page 9 of 13

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R/CR.MA/30585/2017 ORDER

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Penal Code and Section 135 of the Bombay
Police Act. While punishing under Section 504
of the Indian Penal Code, the Court had given

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the benefit under Section 360 of the

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Probation of Offender's Act to the

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respondents.

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10.The question, therefore, arises is as to

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whether the complainant who has not
challenged any order of acquittal before the
Appellate Court can challenge the order of
grant of probation to the respondent and
whether he is also entitled to challenge the
acquittal under Section 294 (A) in this
application under Section 372 r/w Section 378
(4) being dissatisfied with the judgment and
order of the learned Sessions Judge invoking
the provisions of Section 372 r/w Section 378
of the Code of Criminal Procedure. Section
372 of the Code of Criminal Procedure shall

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need to be reproduced at this stage.

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“372. No appeal to lie unless otherwise
provided.

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Page 10 of 13

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R/CR.MA/30585/2017 ORDER

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No appeal shall lie from any judgment or
order of a Criminal Court except as
provided for by this Code or by any
other law for the time being in force.
[Provided that the victim shall have a
right to prefer an appeal against any
order passed by the Court acquitting the
accused or convicting for a lesser
offenceorimposinginadequate
compensation, and such appeal shall lie
to the Court to which an appeal
ordinarily lies against the order of
conviction of such Court.]”

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The proviso has been inserted by the Code of Criminal Procedure (Amendment) Act (5 of 2009) w.e.f. 31.12.2009, where the victim has been given a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for

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lesser offence or for giving inadequate
compensation. Such appeal is to lie to the
Court where appeal ordinarily lies against
the order of conviction of such Court. It is

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not in dispute that when the Court of

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learned Chief Judicial Magistrate, Narmada

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Page 11 of 13

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R/CR.MA/30585/2017 ORDER

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convicted the accused under Section 504 and

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506 (2) of the Indian Penal Code, the
acquittal had been given under Section 294
(A) of the Indian Penal Code and that was not
challenged before the District Court.
Thereafter, when the District Court upheld
the conviction of Section 504 of the Indian
Penal Code and acquitted the person under
Section 506(2) r/w Section 114 of the Indian

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Penal Code, the complainant has not
challenged the judgment and order of
acquittal of learned Chief Judicial
Magistrate till the Sessions Court decided
Criminal Appeal No.05 of 2016. Undoubtedly,
challenge to giving of benefit of provisions
of the Probation of Offender's Act or for
that matter, underSection 360 ofthe Code of
Criminal Procedure is not permitted so far
as acquittal under Section 506(2) of the
Indian Penal Code, is concerned, such a
challenge only is permissible.

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Page 12 of 13

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R/CR.MA/30585/2017 ORDER

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challenge is made under Section 294(A) after
the appeal has been concluded before the
Sessions Court, without raising such a
challenge before the learned Sessions Judge,
the only challenge that can lie in the present
matter is only for acquitting under Section
506(2) of the Indian Penal Code and for
inadequate compensation.

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13.Accordingly, the application seeking Leave

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to Appeal is partly allowed, whereby the
victim-applicant can challenge the judgment
and order of acquittal given under Section
506(2) of the Indian Penal Code and also on
the ground of inadequate compensation.

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Present application stands disposed of
accordingly.

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(MS SONIA GOKANI, J)

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M.M.MIRZA

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Page 13 of 13

Jigneshkumar Veljibhai Tank v. State of Gujarat

Case brief

What is this about?

What did the court decide?

Jigneshkumar Veljibhai Tank v. State of Gujarat

Case brief

What is this about?

What did the court decide?

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