JIGNESH BHUPATBHAI NANAVATI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present appeal has been filed by the appellant Jignesh Bhupatbhai Nanavati original accused No.4 under Section 374(2) of Cr.P.C., challenging the judgement and order dated 23.11.2016 passed by the 15th Adhoc Additional Sessions Judge, Surat (hereinafter referred to as the "Appellate Court") in Criminal Appeal No.20/2008. The said Appeal was filed by the State of Gujarat challenging the judgement and order dated 5.11.2007 passed by the Chief Judicial Magistrate, Surat, acquitting all the six accused from the charges levelled against them under Sections 406, 409, 420, 465, 467, 468, and 120B of IPC, in Criminal Case Nos.4656 of 2003, No.7 of 2004 and No.2054 of 2004. The Appellate Court dismissed the said appeal qua the accused Dipal Bhupatbhai Nanavati, however, allowed the appeal qua the other 5 accused, including the present appellant, and convicted and sentenced them for the offence punishable under Section 409 and 120B of IPC.

(2.) The four accused have preferred the Criminal Revision Application No.994 of 2016 under Section 397 of Cr. P.C., against the impugned judgement and order, whereas the present appellant has filed this appeal under Section 374(2) of Cr.P.C.. When both the matters i.e. the present Criminal Appeal No.32 of 2017 and the Criminal Revision Application No.994 of 2016 filed by the other accused were listed for hearing, the Court had raised a query as regards the maintainability of this appeal under Section 374(2) of Cr.P.C.. The learned APP at this juncture, placed on record the jail remarks from which it appeared that the appellant Jignesh B. Nanavati of the present Appeal was already granted remission of the sentence by the Government on his completing 75% of the sentence imposed by the appellate Court.

(3.) The learned Advocate Ms.Kruti Shah appearing for the appellant submitted that though the appellant is set free on the remission of his sentence, she would like to argue the matter on merits. Of course, she fairly conceded that the appeal under Section 374(2) of Cr.P.C., as such was not maintainable against the judgement and order of conviction passed by the appellate Court, however, she requested the Court to permit her to convert the appeal into Revision Application under Section 397 of Cr.P.C.. In this regard she has placed heavy reliance on Rule 10 of Gujarat High Court Rules, which reads as under:-