STATE OF GUJARAT vs RAMNIKLAL RAIYABHAI KALAVADIA
- Court
- Gujarat High Court
R/CR.A/265/2010 (GJHC240465742010) JUDGMENT DATED: 02/09/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 265 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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Approved for Reporting Yes No
୰
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STATE OF GUJARAT
Versus
RAMNIKLAL RAIYABHAI KALAVADIA
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Appearance:
MS JIRGA JHAVERI ADDL. PUBLIC PROSECUTOR for the Appellant(s) No.
1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 1
MR P B KHANDHERIA(5228) for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 02/09/2026
JUDGMENT
1. The present appeal is filed by the appellant – State of
Gujarat under 378(4) of the Criminal Procedure Code, 1973
(hereinafter referred to as ‘Cr.PC’ for short) against the
judgment and order dated 29.09.2009 passed by the learned
Judicial Magistrate First Class, Upleta (hereinafter be
referred to as “the Trial Court).
2. The appellant had filed the complaint against the
respondent-accused under Sections 17, 18(a)(ii) r/w Section
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27 of the Drugs and Cosmetics Act, 1940. During the course
of investigation and after considering the documents, the
police found sufficient material and filed charge-sheet in the
trial Court. The trial Court recorded the plea and as the
accused pleaded not guilty to the offence, therefore, as the
offence was triable by the trial Court, the trial was proceeded
and the impugned judgment and order was delivered by the
trial Court on 29.09.2009 acquitting the respondent-accused
from the charges levelled against him.
3. Heard learned counsel appearing for the respective
parties.
4. This matter is required to be transferred in view of the
decision of the High Court of Chhattisgarh rendered in the
case of State of Chhattisgarh, Through Its Station House
Officer Vs. Mohanlal Bagde, reported in [2019] SCC OnLine
Chh 102 wherein, the Court has referred the earlier decision
of the Hon’ble Supreme Court rendered in case of of Subhash
Chand vs State (Delhi Administration), reported in (2013) 2
SCC 17, wherein, the Hon’ble Supreme Court has observed
and held in para-18 as under :
“18. If we analyse Section 378(1)(a) & (b), it is clear that
the State Government cannot direct the Public
Prosecutor to file an appeal against an order of acquittal
passed by a Magistrate in respect of a cognizable and
non- bailable offence because of the categorical bar
created by Section 378(1)(b). Such appeals, that is
appeals against orders of acquittal passed by a
Magistrate in respect of a cognizable and non-bailable
offence can only be filed in the Sessions Court at the
instance of the Public Prosecutor as directed by the
District Magistrate. Section 378(1)(b) uses the words "in
any case" but leaves out orders of acquittal passed by a
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Magistrate in respect of a cognizable and non-bailable
offence from the control of the State Government.
Therefore, in all other cases where orders of acquittal are
passed appeals can be filed by the Public Prosecutor as
directed by the State Government to the High Court."
5. It would also be appropriate to refer to the decision of
the High Court of Punjab & Haryana rendered in case of
Mohanlal Vs. Gaurav Kumar and Anr., reported in 2025 PHHC
162308, wherein the Court has observed and held in para-3 as
under :
“3. The Hon’ble Supreme Court in M/s. Celestium
Financial vs. A.Gnanasekaran Etc., 2025(3) RCR
(Criminal) 208, after considerable discussion and
comparative interpretation of Sections 372 and 378(4) of
Cr.P.C., concluded that the victim has a right to file an
appeal under Section 372 of Cr.P.C. before the Court of
Sessions.”
6. In the case of Celestium Financial Vs. A. Gyanasekaran
(supra), the Hon’ble Supreme Court has held and observed in
para – 7.12 as under:-
“7.12 The reasons for the above distinction are not
far to see and can be elaborated as follows:
Firstly, the victim of a crime must have an absolute right
to prefer an appeal which cannot be circumscribed by
any condition precedent. In the instant case, a victim
under Section 138 of the Act, i.e., a payee or the holder
of a cheque is a person who has suffered the impact of
the offence committed by a person who is charged of the
offence, namely, the accused, whose cheque has been
dishonoured.
Secondly, the right of a victim of a crime must be placed
on par with the right of an accused who has suffered a
conviction, who, as a matter of right can prefer an appeal
under Section 374 of the CrPC. A person convicted of a
crime has the right to prefer an appeal under Section 374
as a matter of right and not being subjected to any
conditions. Similarly, a victim of a crime, whatever be the
nature of the crime, unconditionally must have a right to
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prefer an appeal.
Thirdly, it is for this reason that the Parliament thought it
fit to insert the proviso to sub-section 372 without
mandating any condition precedent to be fulfilled by the
victim of an offence, which expression also includes the
legal representatives of a deceased victim who can prefer
an appeal. On the contrary, as against an order of
acquittal, the State, through the Public Prosecutor can
prefer an appeal even if the complainant does not prefer
such an appeal, though of course such an appeal is with
the leave of the court. However, it is not always
necessary for the State or a complainant to prefer an
appeal. But when it comes to a victim’s right to prefer an
appeal, the insistence on seeking special leave to appeal
from the High Court under Section 378(4) of the CrPC
would be contrary to what has been intended by the
Parliament by insertion of the proviso to Section 372 of
the CrPC.
Fourthly, the Parliament has not amended Section 378 to
circumscribe the victim’s right to prefer an appeal just as
it has with regard to a complainant or the State filing an
appeal. On the other hand, the Parliament has inserted
the proviso to Section 372 so as to envisage a superior
right for the victim of an offence to prefer an appeal on
the grounds mentioned therein as compared to a
complainant.
Fifthly, the involvement of the State in respect of an
offence under Section 138 of the Act is conspicuous by its
absence. This is because the complaint filed under that
provision is in the nature of a private complaint as per
Section 200 of the CrPC and Section 143 of the Act by an
express intention incorporates the provisions of the CrPC
in the matter of trial of such a deemed offence tried as a
criminal offence. Therefore, the complainant, who is the
victim of a dishonour of cheque must be construed to be
victim in terms of the proviso to Section 372 read with
the definition of victim under Section 2(wa) of the CrPC.”
7. In the decision in case of M/s. Everest Automobiles Vs.
M/s. Rajit Enterprises dated 12.02.2026 passed in Special
Leave to Appeal No.12350 of 2024 the Hon’ble Apex Court
observed as under:-
“Reliance is placed by the learned counsel for the
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petitioner on the recent judgment of this Court in
“Celestium Financial vs. A. Gnanasekaran1”. By way of
the said judgment, a co-ordinate Bench of this Court held
that a complainant in a case arising under Section 138 of
the Negotiable Instruments Act, 1881, is a ‘victim’ who
would be entitled to file an appeal under the proviso to
Section 372 of the Code of Criminal Procedure, 19732. It
was further held that such appeal could be filed against
an order of acquittal under the proviso to Section 372 of
the Code without seeking special leave to appeal under
Section 378(4) of the Code.
However, this judgment did not take into account the
earlier decisions of this Court in Satya Pal Singh vs. State
of M.P. and Subhash Chand vs. State (Delhi
Administration), which have a bearing on both the
aspects that were considered in the aforestated
judgment, as they held to the contrary.”
8. Learned Additional Public Prosecutor has pointed out
that the matter in the case of Celestium Financial Vs. A.
Gyanasekaran (supra) is now pending at large before the
Hon’ble Supreme Court in case of M/s. Everest Automobiles
Vs. M/s. Ranjit Enterprises in Special Leave to Appeal (Crl.)
No. 12350/2024 wherein the Hon’ble Supreme Court has
observed that it is desirable that a larger Bench gives an
authoritative pronouncement on this issue as it has far-
reaching consequences.
9. In view of the said submissions and the decisions of
different Courts as well as the Hon’ble Supreme Court as
aforesaid, this appeal is disposed of with a direction to the
Registry to transfer the appeal to the concerned Sessions
Court. After it is transferred to the concerned Sessions Court,
it has to be treated as an Appeal under the proviso under
Section 372 of the Code / Section 413 of BNSS and numbered
accordingly and issue notice to the parties. The Registry is
directed to transfer the entire record of the case, including
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the certified copies of the order impugned and record &
proceedings, if lying with this Court, to the concerned lower
Appellate Court, forthwith.
10. Considering that the matter has been pending for
considerable time, the learned lower Appellate Court is
required to make endeavour to dispose of the matter as
expeditiously as possible. It is clarified that this Court has not
gone into the merits of the matter at this stage.
Sd/-
(HEMANT M. PRACHCHHAK,J)
SURESH SOLANKI
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