IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION NO. 383 of 2012 With CRIMINAL MISC.APPLICATION NO. 11064 of 2012 In CRIMINAL REVISION APPLICATION NO. 383 of 2012 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH ===========================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
YES
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of NO the judgment ?
4 Whether this case involves a substantial question of NO law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? NO ================================================================ NAGJI JIVRAJ SOLANKI Applicant(s) Versus STATE OF GUJARAT & 1 Respondent(s) ================================================================ Appearance:
MR NITAL M DHRUVE, ADVOCATE for the Applicant MS CHETNA SHAH, ADDL.PUBLIC PROSECUTOR for the Respondent ================================================================ CORAM: HONOURABLE MR.JUSTICE M.R. SHAH Date : 14/12/2012 CAV JUDGEMNT 1.00. Present Criminal Revision Application, under section 397 read with section 401 of the Code of Criminal Procedure has been preferred by the petitioner herein – original accused to quash and set aside the impugned Judgement and Order dtd.6/10/2007 passed by the learned trial court - learned Chief Judicial Magistrate, Jamnagar in Criminal Case No. 3329 of 2004 convicting the petitioner - original accused for the offence under section 21(1) and (2) of the Air (Prevention and Control of Pollution) Act (hereinafter shall be referred to as “the Act” for convenience) and directing the petitioner - original accused to undergo sentence of simple imprisonment for a period of one year and six months with fine of Rs.1000/- and in default, to undergo further simple imprisonment for a period of three months as well as the impugned Judgement and Order dtd.17/7/2012 passed by the learned appellate court - learned 7th Additional Sessions Judge, Jamnagar in Criminal Appeal No.34 of 2007, by which the learned Judge has dismissed the said appeal preferred by the petitioner - original accused, confirming the judgement and order of conviction and sentence passed by the learned trial court.
2.00. That the respondent No.2 – original complainant lodged the complaint against the petitioner - original accused for the offence under section 21(1) and (2) read with section 31A of the Act, in the court of Chief Judicial Magistrate, Jamnagar which was numbered as Criminal Case No. 3329 of 2004. That the learned Chief Judicial Magistrate, Jamnagar, by the Judgement and Order dtd.6/10/2007 held the petitioner - original accused guilty for the offences punishable under section 21(1) and 21(2) and section 31(A) of the Act punishable under section 37 of the Act and convicting the appellant for the said offence and imposed punishment of one year and six months simple imprisonment with fine of Rs.1000/- and in default, to undergo further three months Simple Imprisonment.
2.01. Being aggrieved by and dissatisfied with the Judgement and Order of conviction passed by the learned Chief Judicial Magistrate Jamnagar in Criminal Case No. 3329 of 2004 dtd.6/10/2007, petitioner – original accused preferred Criminal Appeal No.34 of 2007 before the learned Sessions Court, Jamnagar and the learned appellate court - learned 7th Additional Sessions Court, Jamnagar by the impugned Judgement and Order dtd.17/7/2012 has dismissed the said appeal confirming the Judgement and Order of conviction and sentence passed by the learned trial court.
2.02. Being aggrieved by and dissatisfied with the impugned Judgement and Order passed by the learned appellate court confirming the Judgement and Order of conviction and sentence passed by the learned trial court convicting the petitioner - original accused for the offence under section 21(1) and 21(2) and section 31(A) of the Act, punishable under section 37 of the Act and directing the petitioner - original accused to undergo one year and six months Simple Imprisonment with fine of Rs.1000/-, and in default, to undergo further three months Simple Imprisonment, petitioner - original accused has preferred the present Criminal Revision Application.
3.00. Present Criminal Revision Application was heard by this Court at length and this Court heard Mr. Nital Thruve, learned advocate appearing on behalf of the petitioner herein – original accused and Ms.Chetna Shah, learned Additional Public Prosecutor appearing on behalf of the State at length.
4.00. After elaborate submissions, Mr.Nital Dhruve, learned Advocate appearing on behalf of the petitioner - original accused, under the instructions of the petitioner - original accused, has stated at the bar that the petitioner - original accused does not press the present present Criminal Revision Application in so far as challenging the impugned Judgement and Order passed by the learned appellate court confirming the Judgement and Order of conviction passed by the learned trial court convicting the accused for the offence under section 21(1) & 21(2) and section 31(A) of the Act, punishable under section 37 of the Act. However, has requested to consider the question of sentence and has requested to reduce the sentence from one year and six months Simple Imprisonment to one year Simple Imprisonment. It is submitted that fine is already deposited / paid by the accused.
4.01. Mr.Nital Dhruve, learned advocate appearing on behalf of the petitioner - accused has submitted that as such the petitioner is coming from very small village and as such was not aware about the position of law and strict compliance thereof.
4.02. Mr.Nital Dhruve, learned advocate appearing on behalf of the petitioner - original accused has further submitted that even as per the Notification extending time to comply with the provisions of the Act, more particularly to provide Chimney while preparing bricks, the petitioner was under bonafide impression that the bricks manufacturer is exempted permanently from the requirement of putting up Chimney.
4.03. Mr.Nital Dhruve, learned advocate appearing on behalf of the petitioner - original accused has further submitted that even otherwise, in the facts and circumstances of the case to impose sentence of one year and six months imprisonment would be too harsh. Therefore, it is requested to consider the request of the petitioner - original accused to reduce the sentence.
5.00. Ms.Chetna Shah, learned Additional Public Prosecutor appearing on behalf of the State has submitted that as such under section 37 of the Act, minimum punishment provided is one year and six months. Therefore, she has requested not to impose punishment less than minimum punishment / sentence.
6.00. Heard the learned advocates appearing on behalf of the respective parties at length.
7.01. As stated above, the petitioner - original accused is not challenging the Judgement and Order of conviction passed by the learned trial court confirmed by the learned appellate court in so far as convicting the petitioner - original accused for the offence under section 21(1) and 21(2) and section 31(A) of the Act and therefore, this Court is not considering the present Criminal Revision Application qua challenging the impugned Judgement and Order of conviction and present Criminal Revision Application is dismissed as not pressed / withdrawn in so far as challenging the impugned Judgement and Order of conviction passed by the learned trial court confirmed by the learned appellate court. However, the learned counsel appearing on behalf the petitioner - original accused has requested to reduce the sentence from one year and six months Simple Imprisonment to one year Simple Imprisonment.
7.02. Considering the fact that the courts below have imposed punishment of one year and six months, which is the minimum sentence for the offence for which the petitioner has been convicted, prayer of the petitioner to reduce the sentence from one year and six months S.I. to one year S.I. cannot be granted. Court cannot impose sentence less than the minimum sentence provided under the Act.
7.03. In view of the above and for the reasons stated above, present Criminal Revision Application deserves to be dismissed and is accordingly dismissed.
In view of dismissal of the main Criminal Revision Application, no order in the Criminal Misc.Application No. 11064 of 2012 and the same is accordingly disposed of.
rafik [M.R. SHAH, J.]