Mahendrabhai Babubhai Patel vs State Of Gujarat

Vipul M. Pancholi, J

Heard learned advocate Mr. Vishal Patel for the petitioner and learned APP Mr. Hardik Soni for the respondent â€" State.

It is submitted by learned advocate for the petitioner that the concerned trial Court, vide order dated 26.06.2019, convicted the petitioner for the

offence punishable under Section 323 of IPC and Section 135 of the Gujarat Police Act and sentenced to undergo simple imprisonment for the term of

8 months and fine of Rs.1000/- for the offence under Section 323 of IPC and under Section 135 of the Gujarat Police Act was imposed. It is

submitted that petitioner preferred an appeal below Exh.80 for bail before the concerned trial Court. The said application was allowed by the trial

Court and petitioner was granted bail for a period of 30 days. It is further submitted that thereafter the petitioner filed an appeal along with an

application for condonation of delay before the concerned Sessions Court. The Sessions Court passed an order on 31.01.2020 by which direction was

given to the petitioner to surrender within a period of 7 days. However, the petitioner did not surrender before the concerned Jail Authority and

thereafter the petitioner filed Special Criminal Application No.2020 of 2020 before this Court. This Court disposed of the said petition vide order dated

26.06.2020 by which the petitioner was asked to surrender and file an appropriate application before the concerned Court and direction was also given

to the concerned Court that the application filed by the petitioner be decided on its own merits. It is fairly submitted that thereafter also petitioner did

not surrender.

At this stage, learned advocate Mr. Patel appearing for the petitioner submitted that now the petitioner has surrendered and also paid fine.

At this stage, it is pointed out that, vide impugned order dated 03.04.2021, the concerned Sessions Court has rejected the application filed by the

petitioner on the ground that petitioner did not surrender within a period of 7 days as per the earlier order and therefore the application for delay which

was conditionally allowed has become infructuous and thereby the Sessions Court has not registered the appeal filed by the petitioner.

Learned advocate for the petitioner, therefore, urged that appropriate direction be issued to the concerned Sessions Court to decide the application

filed by the petitioner for condonation of delay along with an appeal on its own merits as the petitioner has surrendered before the concerned Court.

On the other hand, learned APP has submitted that no error is committed by the Sessions Court while rejecting the application filed by the petitioner

as the petitioner did not comply with the earlier order passed by the Sessions Court by which the application for condonation was allowed on condition

that the petitioner has to surrender within a period of 7 days. It is, therefore, urged that this Court may not interfere with the said order.

I have considered the submissions canvassed by learned advocates appearing for the parties. I have also gone through the material placed on

record. It has emerged from the record that against the order of conviction, petitioner has filed an appeal along with an application for condonation of

delay of 27 days before the Sessions Court. The said application of condonation of delay was allowed by the Sessions Court on condition that the

petitioner has to surrender within a period of 7 days. It is not in dispute that the petitioner did not surrender before the concerned Court in view of the

grounds mentioned in the memo of the petition. It has also emerged that thereafter the petitioner has filed petition being Special Criminal Application

No.2020 of 2020 before this Court and this Court has directed the petitioner to surrender before the concerned Court and thereafter filed an

appropriate application before the concerned Court. The concerned Court was also directed to decide the said application on its own merits on the

same day. It transpires that the petitioner has now surrendered before the concerned Court on 01.04.2021 and submitted an application that his appeal

be decided. However, by the impugned order, the Sessions Court has rejected the said application only on the ground that the conditional order passed

by the Sessions Court by which delay in filing the appeal came to be condoned, was not complied with by the petitioner. Thus, it appears that the

Sessions Court has not decided the said application on its own merits though this Court has specifically directed.

In the facts and circumstances of the present case, I am inclined to consider the case of the petitioner. The impugned order dated 03.04.2021

passed by the Sessions Court, Navsari is hereby quashed and set aside and the Sessions Court, Navsari is directed to register Criminal Appeal filed by

the petitioner and thereafter decide the said appeal on its own merits. The Sessions Court shall also consider the application filed by the petitioner for

suspension of sentence on its own merits.

With the aforesaid observations and directions, petition stands allowed to the aforesaid extent.