STATE OF GUJARAT Vs. KANUBHAI ASHABHAI PATEL

JUDGEMENT

(1.) Both these applications and appeals referred above have arisen from the same judgment and order delivered by the Presiding Officer, 3rd Fast Track Court, Kheda at Nadiad on 6th December, 2004. The present respondents were the accused of Special Atrocity Case No. 23/2002 which was tried by Presiding Officer, 3rd Fast Track Court, Kheda at Nadiad as aforesaid and ultimately, accused No.1-Kanubhai Ashabhai Patel came to be convicted for the offence punishable under Section 325 of the Indian Penal Code and was sentenced to undergo imprisonment of one year and to pay fine of Rs. 1,000/-, while accused No.2 - Mafatbhai Ashabhai Patel came to be acquitted by the Trial Court and both the accused were charged for the offences punishable under Sections 325, 323, 504 r/w. Section 114 of the Indian Penal Code as well as under Section 3(1) (10) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and under Section 135 of the Bombay Police Act. Criminal Appeal No. 1350/2006 is preferred by the State under Section 378 of this Code of Criminal Procedure against the abovesaid judgment and order for acquitting accused No.2 for the charges levelled against him, except under Section 325 of the Indian Penal Code and accused No.2 came to be acquitted for all charges levelled against him. This appeal is delayed by 443 days and hence Criminal Misc. Application No. 14022/2006 is preferred by the State against the accused No.1 - Kanubhai Ashabhai Patel under Section 377 of the sentence awarded to him by the Trial Court for the offence proved against him under Section 325 of the India Penal Code. This appeal is delayed by 473 days and, therefore, Criminal Misc. Application No. 14021/2006 is preferred by the State for condonation of delay. While Criminal Appeal No. 1349/2006 is preferred by the State against the accused No.1 - Kanubhai Ashabhai Patel under Section 377 of the Code of Criminal Procedure for enhancement of offence proved against him under Section 325 of the Indian Penal Code. This appeal is delayed by Application No. 14021/2006 is preferred by the State for condonation of delay.

(2.) At the outset, we have come across striking illegality committed by the Trial Court as it clearly appears from the record that after pronouncing the judgment and order of conviction and sentence, the learned Judge on application, preferred by accused No.1 at Ex. 55 passed an order for granting probation to accused No.l- Kanubhai Ashabhai Patel under Section 360 of the Code of Criminal Procedure. Firstly. it must be noted that the Probation of Offenders Act, 1958 is in force in the State of Gujarat and by virtue of Section 19 of this Act, Section 360 shall cease to apply. This is clearly established by the Supreme Court, in the matter of Gulzar v. State of M.P., as reported in (2007) 1 SCC (Cri.) : 395. It is noted seriously that before pronouncing the judgment of sentencing the accused No.1-Kanubhai Ashabhai Patel, learned Trial Judge did not consider the request made by accused No. 1, though such 30 request was made by the accused No.1. However, after pronouncing of judgment for sentencing the accused No. 1 which amounts to refusal to give benefit of probation to the accused No.1. learned Trial Judge passed order below application Ex. 55 preferred by the accused, giving benefit of probation to the accused No.l. when once a judgment pronouncing, the conviction and sentence is given, no application for benefit of probation would lie as it would amount to reviewing the judgment. Therefore, in our humble view, sheer illegality is committed by the Trial Court. It is established law that consideration of granting probation to the accused is a matter, post conviction and pre-sentencing procedure as mandated by Section 4 of the Probation of Offenders Act, 1958. However in committing sheer illegality, learned Trial Judge granted the probation to accused No.1 by passing order below application Ex. 55 and thereby modified the judgment of sentencing accused No.1 which was already pronounced. It is noteworthy again that vide order passed below application Ex.55 on 06.12.2004, at one hand it was directed that the said order shall come in force only after receiving the report from the probation officer and the report was directed that the said order shall come in force only after receiving the report from the probation officer and the report was directed to be called for. We may repeat here that all this is done by the Trial Court after pronouncing the judgment of conviction and sentencing the accused No.l. The fact come to our knowledge, when we looked at Record and Proceedings of the Trial Court as the certified copy of the judgment does not contain this fact. Even though, the law is settled in this respect that the judgment after pronouncing, cannot be altered, except as provided for in Code of Criminal Procedure.

(3.) Be that as it may, we have heard learned APP Mr. I.M. Pandya for the State and learned advocate Mr. Rohit Varma for the respondents in both the matters. For the grounds of delay in both the matters, it has been laboriously put up by the State that in Criminal Appeal No. 1349/2006, a proposal was forwarded by Public Prosecutor, Nadiad to the Legal Department on 28th January, 2005, which was received in the Registry of Legal Department on 15th February, 2005. The file was processed on 16th February, 2005 and on 17th February, 2005. The concerned Deputy Secretary took decision to file an appeal in the High Court of Gujarat on 16th February, 2005. On 23rd February, 2005, Secretary, Legal Department approved the proposal and on the same day, the file was returned back to the concerned branch of the Legal Department. On 23rd February, 2005 itself a resolution was prepared and was forwarded to Public Prosecutor, High Court of Gujarat at Ahmedabad on 23rd February, 2005 only with certified copy of the judgment and without the necessary papers. Learned Public Prosecutor through his office attempted to obtain the necessary papers. Learned Public Prosecutor through his office attempted to obtain the necessary papers and materials from the concerned authorities and during which vacation of the High Court of Gujarat intervened, ultimately, the appeal came to be filed on 19th June, 2006 causing delay of 473 days. While in Criminal Appeal No. 1350/2006. same grounds are reproduced and the said appeal also came to be filed on 19th June. 2006 causing delay of 443 days. It is submitted that the delay is not attributable to any carelessness of the Government machinery or any lapse on the part of the office of the Public Prosecutor, High Court of Gujarat. In both the matters, as further ground, it has been submitted that the work in the office of the Public Prosecutor is increasing day-by-day and on account of newly established Fast Track Courts in the State of Gujarat, the Public Prosecutor Office is heavily burdened with the work of filing criminal appeals. In the year 2005, at least 1484 resolution were prepared for filing the appeals by the State and about 1500 appeals were filed in that year. However, with the increase of work to cope up with such inflow of work, sufficient paraphernalia have not provided for and the strength of human capacity remains the same of medieval standards. This fact has played great role in causing delay in filing the appeals. On the abovestated grounds, it is mentioned that the delay caused in both the appeals be condoned as in the larger interest of justice, a meritorious matter cannot be thrown away at the initial stage when grounds are shown for condonation of delay in both the matters.