R/SCR.A/497/2025 ORDER DATED: 12/06/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 497 of 2025 ========================================================== HANSABEN KIRITSINH JADEJA Versus STATE OF GUJARAT & ORS. ========================================================== Appearance: MR VISHWAS S DAVE(5861) for the Applicant(s) No. 1 MS JIRGA JHAVERI, APP for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Date : 12/06/2025 ORAL ORDER [1.0] Present petition under Articles 226 and 227 of the Constitution of India is filed by the petitioner seeking appropriate writ, order or direction by enhancing the sentence of opponent Nos.2 to 10 / accused by modifying the sentence imposed in Criminal Revision Application No.54/2024 by the learned Principal Sessions Judge, Bhavnagar and in Criminal Case No.2588/2013 by the learned Chief Judicial Magistrate, Bhavnagar and to convict all the opponent Nos.2 to 10 / accused separately under Section 324, 323 and 114 of the Indian Penal Code, 1860 (for short “IPC”) and also to impose maximum imprisonment of 1 year for the offence under Section 323 of IPC and imprisonment of 3 years for the offence under Section 324 read with Section 114 of the IPC to opponent Nos.2 to 10 herein – original accused. [2.0] The brief facts as culled out from the petition are as follows: [2.1] The petitioner herein – original complainant filed FIR being II- CR No.16/2013 with ‘B’ Division Police Station, Bhavnagar R/SCR.A/497/2025 ORDER DATED: 12/06/2025 against opponent Nos.2 to 10 – original accused for the offence punishable under Sections 323, 504, 506(2) and 114 of the IPC and after conclusion of investigation, charge-sheet came to be filed which culminated into Criminal Case No.2588/2013. That, the learned 5th Additional Chief Judicial Magistrate, Bhavnagar vide judgment and order dated 25.10.2024 convicted the opponent Nos.2 to 8 for the offence punishable under Section 323 read with section 114 of the IPC and sentenced to undergo simple imprisonment for a period of one year with fine of Rs.1000/- and default sentence of one month’s simple imprisonment was imposed whereas opponent No.9 herein was convicted for the offence punishable under Sections 323, 324 and 114 of the IPC and sentenced to undergo 3 months’ simple imprisonment with fine of Rs.5000/- and default sentence of 2 months was imposed. [2.2] Being aggrieved and dissatisfied with the conviction and sentence, accused persons filed Criminal Appeal No.69/2024 and present petitioner – original complainant filed Criminal Revision Application No.54/2024 before the learned Sessions Judge. Criminal Appeal No.69/2024 and Criminal Revision Application No.54/2024 were decided by common judgment dated 25.10.2024. Hence, present petition is filed. [3.0] Learned advocate for the petitioner – original complainant has submitted that both the Courts below have committed error. Learned appellate Court came to conclusion that error has crept in awarding of sentence which was corrected / rectified whereby opponent Nos.2 to 8 and opponent No.10 were convicted for the offence under Section 323 of the IPC and R/SCR.A/497/2025 ORDER DATED: 12/06/2025 ordered to undergo sentence of one month’s simple imprisonment with fine of Rs.1000/- while opponent No.9 was convicted for the offence under Sections 323, 324 and 114 of the IPC. Therefore, the said order is assailed mainly on the ground that though learned Sessions Judge has come to conclusion that abetment was there and in aid of section 114 of the IPC Court has to convict all the accused under Section 324 of the IPC also and hence, requested to modify the sentence in Criminal Revision Application No.54/2024 and Criminal Case No.2588/2013 and requested to issued appropriate directions to the convicts – accused separately under Sections 324, 323 and 114 of the IPC and to impose maximum punishment of one year for the offence under Section 323 of the IPC and three years for the offence under Section 324 of the IPC. [4.0] Learned APP has vehemently opposed the present petition and submitted that both the Courts below have not committed any error in law and no interference of this Court is required in exercise of powers under Article 226/227 of the Constitution of India read with provisions of the BNSS and therefore, has requested to dismiss the present petition. [5.0] Heard learned advocates for respective parties. [6.0] Herein, petitioner – original complainant has not preferred Criminal Misc. Application but has not sought the relief to invoke jurisdiction under Articles 226 and 227 of the Constitution of India. After giving opportunity to accused persons, sentence was altered and conviction was recorded. It is needless to say that to hold guilty and convict the accused is R/SCR.A/497/2025 ORDER DATED: 12/06/2025 different and to pass order of sentence after availing an opportunity of being heard on the point of sentence. Considering the principle of penology accused being convicted and appropriate sentence being passed by the Courts. Herein, no case wherein minimum sentence is prescribed and both the Courts below have committed an error to pass the sentence less than the prescribed punishment. Hence, question of interfering with the finding of sentence recorded by the appellate / revisional Court. [6.1] Now, coming back to the fact that in aid of section 114 of the IPC all accused are required to be convicted is concerned, fact remains that even in aid of section 114 of the IPC, all accused are convicted under Section 323 of the IPC and sentenced to undergo one year’s simple imprisonment or fine of Rs.1000/- and under Section 324 of the IPC for three years’ simple imprisonment or fine or both. Section 323 of the IPC is non- cognizable offence and section 324 of the IPC is a cognizable offence. It goes without saying that separate machinery is provided for enhancement of sentence under Sections 377, 386 of the CrPC and revisional power of this Court under Section 401 of the CrPC. Both these powers are different than the powers under Articles 226 and 227 of the Constitution of India. Even, in the revisional jurisdiction under Section 401 of the CrPC, the High Court is having no power to enhance the sentence without availing opportunity of being heard to the accused. The Hon’ble Supreme Court in the case of Sachin vs. State of Maharashtra reported in 2025 INSC 716 has elaborately discussed the scope of enhancement of sentence. In view of the said decision, no case is made out to enhance the R/SCR.A/497/2025 ORDER DATED: 12/06/2025 sentence. Hence, question does not arise to entertain present petition in exercise of powers under Articles 226 and 227 of the Constitution of India. [7.0] Further, this is not a case wherein either the learned Chief Judicial Magistrate or the appellate Court has not properly exercised the discretion and without considering the circumstances have awarded the sentence. The object of penology is to protect the society against criminals by inflicting punishment upon them under the existing criminal law. Undue sympathy to impose inadequate sentence harms the society and judicial system which undermines the public confidence. Therefore, it is the duty of every Court to award appropriate sentence having regard to the nature of offence and manner in which it was executed or committed. Imposition of sentence without considering its effect on the social order in many cases would be futile exercise. While awarding the sentence, the Court has to consider if the offence is committed against the society and causes larger adverse impact to the societal interest like dacoity, murder, kidnapping, siphoning public money or offence against women and offence of moral turpitude which have great impact on the social order and public interest and in such circumstances Court cannot lost sight or foresee to impose exemplary treatment and appropriate sentence. At the same time, while awarding the sentence, Court has to consider relevant consideration to determine the quantum of sentence like nature and gravity of offence, penalty provided for the offence, manner in which the offence was committed more particularly Court has to consider the proportionality between the crime and punishment, age, R/SCR.A/497/2025 ORDER DATED: 12/06/2025 sex and character of offenders including past criminal antecedents. One of prime consideration under the penology is reformative approach. The Court has to also consider the possibility of rehabilitation and reformation of offender and therefore, the discretion given to the Court while awarding the sentence under Section 360(1)(iii) of the CrPC and to consider the provision of Probation of Offenders Act. Considering the aforesaid fact, in order to permit rehabilitation of offender, without finding their communal conscience and to secure the societal interest and justice, Court should prefer the reformative approach instead of inflicting higher or harsher punishment. Herein, the case on hand is not a case where the Court has passed disproportionate punishment. The punishment is provided for sections 323 and 324 of the IPC each upto one year and upto 3 years or fine upto Rs.1000/- or with both. Both the Courts have have used its discretion properly and this is not a case wherein excessive or disproportionate sentence is awarded and even this is not a case though minimum sentence is provided Court has inflicted less then prescribed minimum sentence. Scanning the findings recorded by both the Courts below, this Court is satisfied that this is not a fit case to exercise jurisdiction under Articles 226 and 227 of the Constitution of India. [8.0] Further, in the case of Mohit Singh vs. Reena Bagga & Ors. rendered in Criminal Appeal No.843 of 2024, the Hon’ble Supreme Court has observed and held that extraordinary and inherent powers of the Court do not confer any arbitrary jurisdiction on the Court to act according to its whims and caprice. Even, the powers under Articles 226 and 227 of the R/SCR.A/497/2025 ORDER DATED: 12/06/2025 Constitution are very much limited as per the law laid down by the Hon’ble Supreme Court in the case of Radhe Shyam vs. Chhabi Nath reported in (2015) 5 SCC 423. [8.1] Herein, no any relief sought or urged for to invoke the jurisdiction under Article 226 and under Article 227 of the Constitution and no any ground is found to interfere either order passed by the learned Chief Judicial Magistrate Court or learned appellate Court as both have not committed any error apparent on the face of the record or nothing emerges from the reasons assigned by the learned Magistrate any palpable, manifest or substantial error in interpretation of law is noticed in the order. Even, the powers under Article 227 of the Constitution are very much limited and as per the law laid down by the Hon’ble Supreme Court in the case of Radhe Shyam (Supra), wherein in paragraphs 18 and 23, it has been observed as under: “18. Thus, it has been clearly laid down by this Court that an Order of civil court could be challenged under Article 227 and not under Article 226.” “23. Thus, we are of the view that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226. We are also in agreement with the view of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article 226.” Considering the aforesaid fact, the order of the learned trial Courts could be challenged under Article 227 but not under Article 226 of the Constitution of India. Herein, the petitioners have sought the prayer to quash and set aside the orders passed by the learned Metropolitan R/SCR.A/497/2025 ORDER DATED: 12/06/2025 Magistrate Court and Revisional Court, both fall under the supervisory jurisdiction of Article 227 of the Constitution of India. At this stage it is apposite to refer to the decision of the Hon’ble Supreme Court in the case of M/s. Garment Craft vs. Prakash Chand Goel reported in (2020) 4 SCC 181, wherein in paragraph 77 it is held that High Court does not act as a Court of first appeal while exercising jurisdiction under Article 227 and to re-appreciate, re-weight evidence or fact except error apparent face on the record or perversity in findings. [9.0] In wake of aforesaid discussion, no any ground is found or case is made out to interfere with the impugned orders or to exercise writ jurisdiction at admission stage. Hence, present petition being devoid of any merit is hereby dismissed. (HASMUKH D. SUTHAR, J.) Ajay Original copy of this order has been signed by the Hon'ble Judge. Digitally signed by: AJAY CHANDRAN MENON(HC00939), PRINCIPAL PRIVATE SECRETARY, at High Court of Gujarat on 13/06/2025 17:53:14