(Ashok Bhushan and R. Subhash Reddy, JJ.)
Rasheshbhai Vithaldas Gujarathi _____________________ Appellant;
v.
State of Gujarat and Another _____________________ Respondent(s).
Criminal Appeal No. 376 of 2021 (Arising out of SLP (Criminal) No. 6669 of 2020), decided on April 5, 2021
The Order of the court was delivered by
Order
1. Leave granted.
2. Heard learned counsel for the appellant as well as learned counsel for the State of Gujarat.
3. This appeal has been filed against the order dated 21.10.2020 passed by the High Court of Gujarat at Ahmedabad in Criminal Appeal No. 713/2020. The appellant was accused in FIR No. I-119 of 2019 under Sections 376(2)(J)(N), 315, 114, 201, 120B, 465 and 471 of IPC as well as Sections 3(A), 4, 5(L), 6 and 17 of the Protection of Children from Sexual Offences Act and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
4. The application for grant of bail was rejected against which the appellant has filed an appeal before the High Court which appeal was withdrawn on 04.03.2020 to the following effect:
“Learned advocate for the appellant seeks permission to withdraw present appeal with a liberty to file a fresh appeal after passing of four months from today unless the charge is framed.
Permission, as sought for, is hereby granted. Present appeal stands disposed of as withdrawn. Notice is discharged.”
5. The charges were not framed within four months and then appeal was again filed being Criminal Appeal No. 713 of 2020 which was dismissed by the High Court. In paragraph 4 of the order following observations have been made by the High Court:
“4. Learned advocate Mr. Majumdar tried to submit the case of the appellant on merits. However, this Court is of the view that when the earlier appeal/bail application filed by the appellant-applicant was not entertained by this Court on merits and, therefore, the appellant had withdrawn the said appeal. Hence, in this appeal, learned advocate for the appellant has to point out the change of circumstance after the withdrawal of the earlier appeal. The appeal filed by the applicant was withdrawn by him on 04.03.2020. Thereafter, the Courts are closed since 25.03.2020. The charge is not framed in the present case because of peculiar situation prevailing as a result of COVID-19 pandemic. Thus, no fault can be found with the trial Court.”
6. After having heard learned counsel for the parties, we are of the view that when the earlier appeal was withdrawn the appeal could have been filed afresh after passing of four months from the date of order unless the charge is framed. When the charges were not framed, by virtue of the liberty granted, right of appeal accrue to the appellant again and availing that right appellant has filed Criminal Appeal No. 713/2020 which appeal could not have been dismissed in the manner as has been dismissed by the High Court. The High Court ought to have considered the appeal on merits and taken a decision.
7. We, thus, set aside the order dated 21.10.2020 and revive the Criminal Appeal No. 713/2020 on the file of the High Court which may be considered and decided in accordance with law at an early date.
8. The appeal is allowed.
SUPREME COURT OF INDIA
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No(s).6669/2020
(Arising out of impugned final judgment and order dated 21-10-2020 in CRLA No. 713/2020 passed by the High Court of Gujarat At Ahmedabad)
Rasheshbhai Vithaldas Gujarathi.….Petitioner(s)
v.
State of Gujarat & Anr.….Respondent(s)
Date: 05-04-2021 This petition was called on for hearing today.
(Before Ashok Bhushan and R. Subhash Reddy, JJ.)
For Petitioner(s) Mr. Nirav K. Majumdar, Adv.
Mr. Priank Adhyaru, Adv.
Mr. Rameshwar Prasad Goyal, AOR
For Respondent(s) Mr. Aniruddha P. Mayee, AOR
UPON hearing the counsel the Court made the following
ORDER
9. Leave granted.
10. The appeal is allowed in terms of the signed order.
11. Pending application(s), if any, stands disposed of.
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