IMPORTANT POINT
The court reinforced the importance of procedural fairness in the context of appeals and the execution of warrants under the Cr.P.C.

ORDER :

1. It has been brought to the notice of this court that though the present applicant had gone for filing the Criminal Appeal challenging the judgment and order dated 05.08.2023 of conviction with an application for condonation of delay and an application under section 389 of Cr.P.C. for suspension of sentence before the appellate Court, Surat for filing the same it was not accepted by the registry and even non- bailable warrant was ordered to be issued on 30.01.2024 by the trial Court.

2. Mr. Vaibhav N.Sheth, learned advocate for the applicant stated that the delay condonation application was not accepted by the Registry on the ground of applicant was not surrendering to the jail.

3. The prayer is made to convert the non- bailable warrant into bailable warrant issued against the applicant by order dated 30.01.2024.

4. Advocate Mr. Sheth submitted that there was order dated 05.08.2023 suspending the sentence of the applicant, which was passed by Special Judge, N.I. court. During this period, the appeal was to be preferred.

4.1 Advocate Mr. Sheth further submitted that the applicant would have all the right to agitate before the appellate Court for extension of suspension of sentence but procedural inconvenience created by the registry has led to delay, which again was proposed to be prayed to condone by moving an application, but the registry has failed to make it convenient for the applicant to place the matter before the concerned appellate Court. Hence, at present, the warrant is at large which would affect the substantial right of the applicant to file an appeal.

5. Mr. Hardik Mehta, learned APP submitted that the applicant was having the knowledge of the proceeding and was required to present the appeal during the period granted by the trial Court, and when the applicant has failed to do so, no concession could be allowed to her, and has requested to observe the conduct of the applicant who failed to surrender submitting that the application be rejected.

6. The applicant lady has been convicted under section 138 of the N.I. Act by the Special Judge, N.I. Court, Surat for a period of one year simple imprisonment and to pay one and half time the amount of the cheque as compensation.

7. In the case of Lallan Singh and others Vs. State of Uttar Pradesh, reported in (2015) 3 SCC 362, the Hon’ble Supreme Court made the observations in paras 10, 10.1, 10.2 and 10.3, which are elicited as under:

“10. The legal position as to the process that should follow an order or conviction is much too clear to require any special emphasis. We say so because Chapter XXXII of the Code of Criminal Procedure, 1973, prescribes the process and the procedure to be followed for execution of sentence of death and/or other sentences awarded to convicts. We may in particular refer to Sections 417, 418, 472 and 420 CrPC which deal with the power to appoint place of imprisonment of the convict, the execution of sentence of imprisonment and the direction of warrant for execution as also the persons with whom the same has to be lodged:

10.1 Section 418 of the Code in particular deals with execution of sentence imprisonment and inter alia empowers and obliges the court passing the sentence to forthwith forward a warrant to the jail or other place in which he is, or is to be, confined, and, unless the accused is otherwise confined in such jail or other place to forward him to such jail or other place with a warrant. In terms of sub-section (2) of Section 418, where the accused is not present in the court when sentence of imprisonment as is mentioned in subsection (1) is pronounced, the court is required to issue a warrant for his arrest for the purpose of forwarding him to jail or other place in which he is to be confined and in such cases the sentence shall commence on the date of his arrest. There is thus no gainsaying that upon conviction of an accused and sentence of imprisonment awarded to him, the court concerned is expected to commit him to jail in terms