Bombay High Court

Ikbal Chandulal Shaikh And ... vs The State Of Maharashtra And ... on 3 May, 2023

Bench: S. G. Mehare

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

         CRIMINAL REVISION APPLICATION NO. 301 OF 2022
                            WITH
     CRIMINAL APPLICATION NO.3373 OF 2022 IN REVN/301/2022


1.     Ikbal Chandulal Shaikh,
2.     Lahu Tulshiram Gaware,
       Both R/o. Shirasgaon, Tq. Shrirampur,
       Dist. Ahmednagar                  ..       Petitioners
                 VERSUS
1.     The State of Maharashtra,
2.     Krushna Bhikaji Pawar,
3.     Shital W/o Krushna Pawar,
4.     Sanjay Bhikaji Pawar,
       Respondent Nos. 2 to 4 resident of
       Manori, Tq. Rahru Dist. Ahmednagar ..      Respondents

Mr. S. S. Panale, Advocate for the petitioners;
Mr. S. B. Narwade, A.G.P. for respondent No.1;
Mr. P. N. Muley, Advocate for respondents No.2 to 4

                              AND
         CRIMINAL REVISION APPLICATION NO. 320 OF 2022
                            WITH
     CRIMINAL APPLICATION NO. 3644 OF 2022 IN REVN/320/2022

Bajrang S/o Vitthal Hake,
Age : 59 Years, Occ. Agriculture,
R/o. Prashant Nagar, Ambajogai,
Taluka Ambajogai, District Beed                   ..       Petitioner

       VERSUS

The State of Maharashtra,
Through Police Inspector,
Ambajogai, District Beed                   ..     Respondent




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                             AND
         CRIMINAL REVISION APPLICATION NO. 318 OF 2022
                            WITH
     CRIMINAL APPLICATION NO. 3633 OF 2022 IN REVN/318/2022

       Sambhaji S/o Digambar Kachgunde,
       Age : 45 Years, Occ. Agriculture,
       R/o. Prashant Nagar, Tal. Ambajogai,
       Dist. Beed.                                      ..    Applicant

                VERSUS

       The State of Maharashtra,
       Through Police Inspector,
       Ambajogai Police Station,
       Tal. Ambajogai, Dist. Beed.                           .. Respondent

                                 ...
Mr. K. N. Shermale, Advocate for the applicant;
Mr. S. B. Narwade, A.P.P for Respondent/State
                                .....

                               CORAM         : S. G. MEHARE, J.

                               Reserved on         : 05.12.2023
                               Pronounced on       : 03.05.2023
ORDER

1. The applicants are seeking suspension of sentence under Section

397 of the Code of Criminal Procedure (Cr.P.C. for short) passed by the

learned Judicial Magistrate First Class and confirmed by the learned

Additional Sessions Judge (subordinate Appellate Court, for short).

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2. The subordinate appellate Court cancelled the bail bonds of the

accused and directed them to surrender before the trial Court for the

execution of the sentence. Admittedly, soon after the decision of the

appeal, the present applicants were not sent to jail under a conviction

warrant, nor did the applicant surrender.

3. The learned counsel Mr. S. S. Panale and Mr. K. N. Shermale for

the applicants have vehemently argued that Section 397 of the Code of

Criminal Procedure thus provides for suspension of sentence, and for

suspension of sentence, the accused need not surrender. In other

words, they have vehemently argued that for the suspension of the

sentence before the High Court, surrender of the applicant is not sine

qua non. The tone of their argument is once the Revision under

section 397 Cr.P.C. is preferred, the High Court shall suspend the

sentence unless the High Court Rules prescribe the Procedure directing

the accused to surrender before the sentence is suspended. To bolster

their arguments, they relied on the judgments and orders of this Court

passed in Criminal Application No.1238 of 2020 in Criminal Revision

Application No. 89 of 2020 [Popat Dattatraya Ajabe and other Vs. The

State of Maharashtra] dated 3rd August, 2020 and Criminal Application

No. 2743 of 2019 in Criminal Revision Application No. 232 of 2019

dated 12th June 2020. Relying strongly on these Judgments, they

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claimed that the applicant deserves suspension of sentence and bail till

the conclusion of the revision petition.

4. The learned A.P.P has strongly opposed the applications and

raised the following points;

(i) Soon after the conviction, the subordinate appellate Court

confirming the conviction shall take the convict into custody

and send him to jail under a conviction warrant.

(ii) The Subordinate appellate Court has no jurisdiction to suspend

the sentence and continue the bail.

(iii) The subordinate appellate Court has no power to direct the

accused to surrender before the trial Court for the execution of

the sentence.

(iv) The subordinate appellate Court shall not deliver the Judgment

of conviction unless the presence of the accused has been

secured before the Judgement is pronounced, except the

personal attendance was exempted in an exceptional case.

(v) There was no uniformity in the judgments of subordinate

appellate Courts as regards taking the convict into custody for

the execution of the sentence soon after confirming the

Judgment of conviction.

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(vi)    The subordinate appellate Courts do not cancel the bail bonds

of the accused and discharge the surety after the conclusion of

the appeal.

(vii) The convict in each case cannot claim the suspension of

sentence under section 397 Cr.P.C. as a matter of course subject

to exceptional circumstances.

(viii) The Revisional Court cannot grant bail to the petitioner unless

he is behind bars either in the custody of the Magistrate or

suffering the sentence.

5. He further argued that in the case at hand, the accused were

present in the Court at the time of pronouncing the Judgment and

exemption was not granted to them from appearance during the trial.

Therefore, the learned subordinate appellate Court was to send them

to jail for the execution of the sentence. There is no uniformity in the

judgments and orders as regards sending the convict for the execution

of the sentence, and different practises are followed throught the State,

and that is a disparity. There must be uniformity in the application of

the law. Everyone is equal before the law. Not applying the law

uniformly is discrimination. Such an illegal practice shall be corrected.

Some of the accused who appear honestly before the subordinate

appellate Court at the time of pronouncement of Judgment are sent to

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jail, and the shrewd avoiding the execution of the sentence approach

this Court for suspension of the sentence as a matter of right. That is

not good practice. It has created a mess and spread the feeling of

inequality in society. Therefore, the earlier view taken by this Court

suspending the sentence without surrender and granting bail as a

matter of course needs to be re-viewed afresh from the legal

perspective.

6. The law is well settled that there shall be uniformity in the

application of the law. The reason is obvious everyone is equal before

the law. The uniformity gives certainty. Certainty and practicability are

inherent parts of the Rule of law. Considering the principle of

applicability of law equally and maintaining uniformity to assure

certainty and practicability, the issues raised by the learned APP have

great magnitude.

7. Considering the objection raised by the learned A.P.P, and

learned counsel for the applicants, the following points arise for

consideration;

(i) Can the trial Court or the subordinate appellate Court deliver the Judgment of conviction without securing the presence of the accused?

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     (ii)       Can the subordinate appellate Court suspend the sentence

on confirming the Judgment of conviction of the trial Court?

(iii) Can the subordinate appellate Court direct the accused to surrender before the trial Court for the execution of the sentence?

8. Section 387 of the Code of Criminal Procedure deals with

judgments of the subordinate appellate Court. It has been provided

therein that the rules contained in chapter XXVII of the Code of

Criminal Procedure as to Judgment of a criminal Court of original

jurisdiction shall apply, so far as may be practicable, to the Judgment

in appeal of a Court of Session or Chief Judicial Magistrate. It has

been expressly provided that unless the appellate Court otherwise

directs, the accused shall not be brought up, or required to attend, to

hear Judgment delivered. The various sections in the said chapter

speak of what shall be the language and contents of the Judgment, the

order to pay compensation, and passing an order under Section 360 to

or not to release the accused on probation of good conduct or after

admonition.

9. Section 353 under Chapter XXVII of the Code of Criminal

Procedure deals with delivering the Judgment. It is a provision that the

Court shall deliver the Judgment in open Court. Sub-Section 5 of the

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said Section states, "If the accused is in custody, he shall be brought up

to hear the judgment pronounced". Sub-section (6) of the said Section

provides that if the accused is not in custody, he shall be required by

the Court to attend to hear the Judgment pronounced, except his

personal attendance during the trial has been dispensed with, and the

sentence is one of fine only, or he is acquitted. Provided that, where

there are more accused than one, and one or more of them do not

attend the Court on the date on which the Judgment is to be

pronounced, the Presiding Officer may, to avoid undue delay in the

disposal of the case, pronounce the Judgment notwithstanding their

absence. The proviso to sub-section 6 is that in case of absence of one

or more accused, to avoid undue delay in the pronouncement of

Judgment, the Court may pronounce the Judgment in the absence of

the accused who were not present. The purport of sub-section 6 is

unless personal attendance is exempted during the trial, the Judgment

shall not be pronounced in the absence of the accused. Reading the

Section, one can find that unless the presence of the accused is

secured, the trial Court or the Court of Sessions cannot deliver the

Judgment, subject to certain exceptions mentioned in the proviso to

sub-section 6.

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10. The Bombay High Court has dealt with the issue as regards the

procedure to be followed while delivering the Judgment in the case of

Moinoddin S/o Khodboddin Versus The State of Maharashtra, 2003

Volume II Labour Law Journal 216. Paragraph 14 of the said Judgment

is relevant to the issue raised before the Court, which reads thus;

"14. Reading proviso to Section 387 of the Criminal Procedure Code, it may be argued that, it is not mandatory upon the appellate Court to direct the accused to be brought up or required to attend, to hear the Judgment delivered because of the words "shall not" incorporated in the proviso. However, this proviso is required to be read in the light of Section 387 read with Section 353(5) and 353(6). Provisions regarding the Judgment as contained in Chapter XXVII of the Criminal Procedure Code are applicable to the Judgment of Subordinate appellate Court and in Section 387 also the words used are "shall apply". The proviso to Section 387, therefore, shall stand controlled by the provisions contained in Sections 353(5) and 353(6) and, therefore, the subordinate appellate Court will be obliged to secure the presence of accused/appellant before it for pronouncement of Judgment except in the cases wherein the Judgment is of acquittal or one of fine only. Once the presence of appellant-accused is secured or the purpose of pronouncement of Judgment confirming the conviction with substantive sentence, as observed in the matter of Dilip v. State of Maharashtra (supra), the

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Subordinate Appellate Court would become functus officio and cannot suspend the sentence or grant bail in order to enable the accused to prefer Revision before the High Court. The only course available, therefore, would be to execute the order of conviction confirmed by it, leaving the accused to obtain suspension of sentence and bail from the High Court by preferring appropriate Revision.

15. On reference to criminal manual of instructions issued by the High Court of Judicature, Appellate Side, Bombay, for the guidance of criminal Courts and officers subordinate to it, the same contains Form XV regarding "warrant of Jailor, in the case of a prisoner at first released on bail pending the disposal of appeal to the Appellate Court, but dismissal of the appeal or reduction or undergo the remaining portion of the sentence". The contents of the warrant clearly indicate that the warrant is to be issued by the Court confirming the conviction and accused appellant cannot be directed to surrender to the trial Court for issuance of conviction warrant."

11. The law laid down in the case of Mohinuddin Khtubuddin, still a

good law. It has been candidly observed that the subordinate appellate

Court is obliged to secure the presence of the accused before the

Judgment is pronounced except for the judgments of acquittal or fine

only or attendance is exempted during the trial. In the said Judgment

11 CrRn-3373-22-J.odt

in paragraph No. 16, the Sessions Courts were directed to follow the

correct procedure in future. However, it appears that the subordinate

appellate Courts did not follow the pronouncement of the High Court

and adopted distinct practises, did not maintain uniformity in the

application of law and spread uncertainty.

12. Section 389 of the Code of Criminal Procedure (for short,

"Cr.P.C".) deals with the suspension of the sentence. The Section opens

with the word "pending an appeal by the convicted person" That

indicates that the appellate Court may, for reasons to be recorded in

writing, suspend the sentence pending the appeal preferred by the

convict. The Section, in specific words, clarified that the appellate

Court may suspend the sentence pending the appeal only. The

suspension remains during the pendency of the appeal. As soon as the

appeal is disposed of, the suspension order merges in the final

Judgment and order.

13. As far as the suspension of the sentence, Sub-Section 3 of

Section 389 of the Code of Criminal Procedure deals with the

suspension of the sentence. The said Section provides that the trial

court may suspend the sentence after conviction where the accused

was on bail and sentenced to suffer imprisonment not more than three

12 CrRn-3373-22-J.odt

years or the offence is bailable. To suspend the sentence, the accused

has to satisfy the Court that he intends to prefer the appeal against the

Judgment of conviction. The trial court in such a situation may

suspend the sentence for such period as he will afford sufficient time to

present the appeal and obtain the orders of the appellate Courts.

Section 389 of Cr.P.C. does not confer power upon the subordinate

appellate Court to suspend the sentence on confirming the Judgment

of conviction of the trial Court.

14. The Hon'ble Bombay High Court Nagpur Bench in the case of

Dilip S/O Ramchandra Umare Vs. State of Maharashtra 1996 Cri. L. J.

721 has observed in paragraph No.2 that;

"in large number of cases, it has been found that the Sessions Judge, Additional Sessions Judge, the Joint Sessions Judge, or lower appellate Court as the case may be, suspends the sentence for some time even after disposal of appeal against the conviction and sentence to enable the accused to prefer revision application before the High Court and obtain appropriate orders. The Court of criminal Procedure does not confer any inherent jurisdiction on the lower appellate Court to directly or indirectly suspend the sentence after decision of the appeal. Nor there any specific power conferred on the lower appellate Court under Code of Criminal Procedure to suspend the sentence on decision of appeal against the Judgment of conviction and sentence.

13 CrRn-3373-22-J.odt

Obviously, the power of suspension of sentence can only be exercised if the Code of Criminal Procedure so permits not otherwise. There is neither any power of suspension of sentence nor grant of bail implicit the lower appellate Court after decision of the appeal against the Judgment of the conviction and sentence nor such power is inherent. Once the lower appellate Court hears and decide the appeal against the conviction and sentence passed by the trial Court, it becomes functus officio and ceases to have any power in the matter to suspend the sentence, or grant bail even temporarily to enable the accused to approach High Court by filing revision application and to obtain appropriate orders from High Court".

15. Chapter XXXII of the Code of Criminal Procedure deals with

execution, suspension, remission and commutation of the sentence.

Section 418 of the Code of Criminal Procedure 1973 pertains to the

execution of a sentence of imprisonment that reads thus;

"(1) Where the accused is sentenced to imprisonment for life or to imprisonment for a term in cases other than those provided for by section 413, the Court passing the sentence shall forthwith forward a warrant to the jail or other place in which he is, or is to be, confined, and, unless the accused is already confined in such jail or other place, shall forward him to such jail or other place, with the warrant: Provided that where the accused is sentenced to imprisonment till the rising of the Court, it shall not be necessary to prepare or

14 CrRn-3373-22-J.odt

forward a warrant to a jail, and the accused may be confined in such place as the Court may direct.

(2) Where the accused is not present in Court when he is sentenced to such imprisonment as is mentioned in sub- Section (1), the Court shall issue a warrant for his arrest for the purpose of forwarding him to the jail or other place in which he is to be confined; and in such case, the sentence shall commence on the date of his arrest."

16. The above Section provides that soon after the accused has been

sentenced to suffer imprisonment, the Court passing sentence shall

forthwith send the convict to jail with a conviction warrant for the

execution of the sentence. Sub Section (2) is specific that where the

accused is absent, the Court shall issue a warrant of his arrest to

forward him to the jail, and the sentence shall commence on the date

of his arrest. Section 418 of the Code of Criminal Procedure did not

contemplate the postponement of the surrender of the accused for the

execution of the sentence. Reading the Section between the line, it is

clear that the Court convicting the accused cannot defer the execution

of the sentence where the accused is present before the Court.

17. The Punjab and Haryana High Court in Krishna Kumar Jain

Versus State of Punjab in CRMM34325-2015 in CRR-3960-2015

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(O&M), relying on the case of Moinoddin S/o Khodboddin Versus State

of Maharashtra, of Bombay High Court (supra) has observed that;

"The only course available, therefore, would be to execute the order of conviction confirmed by it, leaving the accused to obtain suspension of sentence and bail from the High Court by preferring appropriate revision."

18. The Rajasthan High Court in the case of Ramesh Kumar Sharma

Vs. Subhash Chand Gupta Criminal Revision Petition No. 1096 of

2011 has taken the view that

"After passing of the Judgment in appeal, for filing revision petition before the High Court under Section 397 read with Section 401 of the Cr.P.C., the appellate Court has given discretion to exercise the power as provided under Section 389(3) of the Cr.P.C., therefore, the appellate Court has no option expect to take the accused in custody and send him to jail to serve the sentence."

19. The Rajasthan High Court again in the case of Mohammad Yusuf

Vs. State of Rajasthan through P.P. Criminal Revision Petition No.

1148/2010, followed the principles laid down in the case of Ramesh

Kumar Sharma Vs. Subhash Chand Gupta (supra) and vide its order

dated 12.09.2011 has held that in the absence of surrender of the

accused before the appellate Court the revision petition is not

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maintainable and subordinate appellate Court has no option but to

take the accused in custody and send him to jail to serve the sentence.

20. The Delhi High Court in Pritika Fashions Pvt. Ltd and others Vs.

State and others Cri. Rev. Petition 629/2014 has observed that;

"Appellate Court ought to have passed necessary order after the dismissal of the appeal regarding the custody of the appellant. However, after the passing of the Judgment on 29.08.2014 neither petitioner No.2 was taken into custody by the Appellate Court nor he surrendered nor was protected by the order of any Court from his arrest and was roaming free despite having been convicted by two concurrent judgments of the conviction. The Court cannot be helpless in such a situation and allow the convict to make a mockery of the criminal system."

21. Reading Section 353 and Section 418 of the Cr. P. C. together

and above case laws it is explicit that the trial Court or subordinate

appellate Court cannot not pronounce the Judgments without securing

the presence of accused excepting his presence was exempted during

trial in exceptional circumstances and the subordinate appellate Court

cannot direct the accused to surrender before the trial Court. In no

case, the subordinate appellate Court shall suspend the sentence or

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grant bail directly or indirectly. Accordingly, points nos. (i) to (ii) have

been answered in negative.

22. It has been experienced that the subordinate appellate Courts

erroneously suspend the sentence and continue the surety bond

without the consent of the surety. In view of such an erroneous

practice, the following questions need discussion as it is relevant to the

various questions raised in this case.

a) Whether cancellation of bail after the termination of the trial obligatory?

b) Can the Court, after terminating the trial into conviction, without the consent of the surety, continue the surety bond?

c) What is the life of a surety bond?

23. Section 441 of the Code of Criminal Procedure pertains to bond

of accused and sureties that provides before any person is released on

bail or released on his own bond, for such amount determined by the

Court that shall be executed by such person. When he is released on

bail, the Court may ask for one or more sufficient sureties. Such surety

shall continue so to attend until otherwise directed by the police officer

or the Court, as the case may be.

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24. Bail is a mechanism used to ensure that the accused is present

before the Court and available for trial. Sometimes Court may release

the accused to secure his presence for the trial on his own bond, and

sometimes may ask for the furnishing surety. Usually, a third person

ensures the Court by executing his surety bond to keep the accused

present during the trial. The surety has to submit the declaration as

per Section 441-A of the Code of Criminal Procedure for whom he has

stood surety by giving all the relevant particulars. A Surety bond

executed by the surety under Section 441 of the Code of Criminal

Procedure is an undertaking to keep the accused present during the

trial. The undertaking is binding upon the surety. Where the accused

remain absent, in that circumstance, the Court may forfeit the surety

bond. Where the bond has been forfeited for breach of condition to

appear by the accused, the Court may impose the penalty, and if the

penalty is not paid, Court may proceed to recover the same as such

penalty or fine imposed by which under this code. It has been further

provided in sub-section (2) of 446 of the Code of Criminal Procedure

that where such penalty is not paid by the accused and cannot be

recovered in the manner aforesaid, a surety shall be liable to

imprisonment in the civil jail for a term which may extend to six

months. The surety is bound by the terms of the bond. Therefore, it has

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to be construed strictly. In other words, it may be stated that liability

incurred by the surety under the bond on account of the non-

appearance of the accused must be imposed against the surety.

25. The Hon'ble Supreme Court in the case of State of Maharashtra

Vs. Dadamiya Babumiya Sheikh A.I.R. 1971 S.C. 1722. It has been

observed in paragraphs No. 7 and 8 as under;

"7. A surety bond is a contract and it is a question as to how far its terms can be considered to have been varied by any unilateral act. Each bond, it may be pointed out, has to be construed on its own terms. But in construing the terms of a surety bond for the production of an accused person, the purpose and object of executing it must be kept in view. Such a bond is executed for the purpose of ensuring the presence of the accused concerned in Court in which he is standing his trial for a criminal offence at the hearing of the case. But for the execution of such a bond, the accused would have to remain in custody so that the trial may proceed smoothly.

8. Looked at from this point of view, surety bonds in criminal cases must be held to be designed to an extent to serve a public purpose. In some cases, it is of course said that surety bonds call for a strict construction but the construction must not be so unduly strained as to result in defeating its essential purpose. Each bond has of course to

20 CrRn-3373-22-J.odt

be construed on its own terms, subject to what has just been stated."

26. Schedule II of the Code of Criminal Procedure relates to bond

and bail bond after arrest under warrant, and the second part of that

form is the declaration by the surety. The said form binds a surety to

keep the accused present before the Court to answer the charge on

which he has been arrested and shall continue to attend until

otherwise directed by the Court. As soon as the accused is convicted,

he has to surrender his bond, and the Court has to send the accused

under warrant to jail for the execution of the sentence subject to the

order of suspension of the sentence as provided in Section 389 of the

Code of Criminal Procedure.

27. It is explicit from the above that normally, the sureties are

furnished to ensure the presence of the accused for trial. Therefore,

Court is of the view that as soon as the trial culminates into the

conviction, the contract of the surety stands impliedly cancelled, and it

is obligatory upon the Court to pass an order cancelling the bail and

surety bond.

28. No person can be forced to stand surety for the accused. It is a

voluntary act and a contract. Section 444 of the Code of Criminal

21 CrRn-3373-22-J.odt

Procedure speaks of the discharge of surety. The surety has the

discretion to apply to the Magistrate to discharge the bond either

wholly or so far as to relate to the accused. On such application being

made, the Magistrate shall issue his warrant of arrest directing that the

person so released be brought before him. On the appearance of such a

person pursuant to the warrant or voluntary surrender, the Magistrate

shall direct the bond to be discharged either wholly or so far as relates

to the applicant and shall call upon such accused to find other

sufficient sureties, and, if he fails to do so, may commit him to jail.

Section 444 of the Code of Criminal Procedure gives discretion to the

surety to withdraw his surety bond. Soon after the surety applies for

discharge, the Court issue the arrest warrant to the accused and on his

production, the surety stands discharged.

29. Surety bond is just like a surety under Section 135 of the Indian

Contract Act where the purpose is served; impliedly the surety stands

discharged. Reading section 441 with 444 of Cr.P.C., it can safely be

said that the life of a surety bond is either till the trial terminates or

the Court discharges the surety. The Court is of the view that on

culminating the trial into conviction, the Court shall invariably

discharge the surety. The reason is obvious if the surety furnishes the

surety, it is a charge over his immovable property, and the charge is

22 CrRn-3373-22-J.odt

never for indefinate period. The Court convicting the accused is legally

bound to send the accused, immediately after conviction under a

conviction warrant, to jail for the execution of the sentence. Then,

continuing the bail and surety after conviction would be illogical. Since

standing surety for the accused is voluntary, the Court, after the period

of the surety bond, cannot on its own continue the surety on

terminating the trial.

30. Now turn towards the main question, whether in every case,

the Revisional Court shall suspend the sentence without his/her

surrender or be taken into custody for sending him to jail for the

execution of sentence as a matter of right.

31. The learned counsel for the applicant has heavily relied upon the

view taken by this Court in the case of Ramesh Murlidhar Sharma Vs.

State of Maharashtra and another (Criminal Revision Application No.

42 of 2019), and in Popat Dattatraya Ajabe and others Vs. The State of

Maharashtra, (Criminal Application No. 1238 of 2020 in Criminal

Revision Application No. 89 of 2020, dated 03.08.2020) and Fazal

Khalil Ahemad Shaikh Vs. Nandkishor Ramnivasji Agrawal and another

Criminal Appplication No. 2743 of 2019 in Criminal Revision

Application No. 323 of 2019 dated 12 th June 2020 in which Popat's

23 CrRn-3373-22-J.odt

case is follow and claimed that the revisional Court shall suspend the

sentence and grant the bail to the applicant not surrender for the

execution of sentence or confined under Section 397 of the Cr.P.C.

32. In reply, the learned A.P.P argued that the correct preposition of

law was not brought to the notice of this Court while considering the

issue of suspension of sentence in the above case laws.

33. The learned counsel for the applicant has vehemently argued

that in the above cases, this Court has correctly followed the ratio laid

down in the case of P. Ibrhaim Vs. State of Kerala (1979 KNT 856).

34. The relevant paragraphs from the case of Popat (supra) are

reproduced to describe the view expressed by the learned single Judge.

That reads thus:-

"5. In the identical facts of the case, though the applicant accused have not surrendered themselves in terms of the judgment and order of conviction as modified by the appellate Court, by relying upon the judgments of Madras High Court and the Supreme Court, this Court ( Coram V.K. Jadhav, J.) in para No.5 of the order dated 25.2.2019 passed in Criminal Appeal No. 711 of 2019 in Criminal Revision Application No. 58 of 2019, has made the following observations :-

5. In the case of Easwaramurthy Vs. N.

Krishnawamy, reported in 2006 Cri.L.J. 4105,

24 CrRn-3373-22-J.odt

wherein the Madras High Court in paragraph No.4, has referred the case of Bihari Prasad Singh Vs. State of Bihar [(2000) SCC (Cri) 1380] and also referred the observations made by the Supreme Court therein. The Madras High Court has further referred the decision in the case of Ibrahim Vs. State of Kerala [1979 KLT 857] in paragraph No.5 of the judgment. The observations made by the Madras High Court in paragraph Nos. 4 to 6 of the judgment are reproduced herein below.

4. In respect of the above said contentions raised by the learned counsel for the petitioner, it is relevant to note the settled pirnciples of law laid down by the Hon'ble Supreme Court of India reported in Bihari Prasad Singh Vs. State of Bihar 2000 SCC (Cri) 1380: 1999 AIR SCW 4926. In the above said decision. Their Lordships have held as follows (paras 2 and 3):

The only question that requires consideration in the present case is whether the High Court while exercising its revisional Jurisdiction can refuse to hear or entertain the matter on the ground that the accused has not surrendered. Under the provisions of the Criminal Procedure there is no such requirement though many High Courts in this country have made such provision in the respective rules of the High Courts. But it is stated to us that there is no such rule in the

25 CrRn-3373-22-J.odt

Patna High Rules. In that view of the matter, the High Court was not justified in rejecting the application for revision solely on the ground that the accused has not surrendered.

5. In respect of the same question of law viz., whether the accused concerned in the revision against conviction, has to surrender and thereafter only seek the relief of suspension of sentence, the Hon'ble Mr. Justice Khalid (as he then was) ha held in the decision reported in Ibrahim Vs. State of Kerala 1979 KLT 857 as follows :

2. Section 397, 399 and 401 of the Code dealt with the powers of revision. Under Section 397, revisions can be filed both before the High Court and the Sessions Judge. The jurisdiction of the revisional Court to pass interim orders under Section 397(1) is as follows:

(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court and may, when calling for such record, direct that the execution of any

26 CrRn-3373-22-J.odt

sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

The words "direct that the execution of any sentence or order be suspended" have to be read disconjuctively from the words and if the accused is in confinement that he be released on bail or on his bond pending the examination of the record. Suspension of the execution of any sentence or order postulates that the petitioner is not in confinement. This Section gives jurisdiction to the revisional Court to suspend sentence even though the petitioner is not in confinement. The question of releasing Him on bail arises only when he is in confinement. Therefore, when the accused in confinement makes an application for suspension of sentence on order, the Court should not, only order suspension of the sentence or order but order his release on bail also. Not so, when he is not in confinement. This Section clearly recognizes the difference between a case where an accused is in confinement and when not in confinement. Thus, it will not be proper for the revisional Court to insist upon an accused to be remanded to confinement before his sentence

27 CrRn-3373-22-J.odt

can be suspended, for that will be acting against the dear and express provisions contained in Section 397(1) of the code, quoted above, enabling the revisional Court to exercise the twin jurisdiction vested in it in cases where the accused is in confinement and not in confinement. The matter becomes clear when the other sections of the Code are also considered....''

"8.... The revisional Court need not insist upon the confinement of the accused before ordering suspension of sentence or order passed against him. If the accused is in confinement, the revisional Court will have to direct his release on bail; if he is not in confinement, the revisional Court need only suspend the execution of the sentence or order, either on the bond already executed or as directed by the revisional Court. Since the relevant provisions of the Code have clearly delineated the situation where the accused presence is necessary, and since Section 397 is silent about the custody or confinement of the accused, the revisional Court need not insist upon bringing the accused to confinement before exercising the powers Under Section 397(1) of the Code".

28 CrRn-3373-22-J.odt

"6. In view of the above said decision of the Hon'ble Supreme Court as well as the decision rendered by his Lordship Justice Khalid (as he then was), it is well settled that in respect of the revision against conviction and sentence, for granting the relief of suspension of sentence, the accused need not surrender and undergo confinement and filing revision without surrendering and confinement is well within the power contemplated Under Section 397(1) of Cr.P.C as Section 397(1) Cr.P.C itself is very clear that there is absolutely no ambiguity as the reading of the words "direct that execution of any sentence or order be suspended."

"6. In view of the above, there is no impediment as such to release the applicants on bail. .. .. .. "

35. In the case of P.Ibrhaim (supra), the Kerala High Court has

discussed Sections 397, 399 and 401 of the Code of Criminal

Procedure and interpreted the words from Section 397 of Cr.P.C., i.e.

"direct that the execution of any sentence or order be suspended" and

held that it will not be proper for the revisional Court to insist upon an

accused to be remanded to confinement before his sentence can be

suspended, that will be acting against the clear and express provisions

contained in Section 397(1) of the code, (quoted above), enabling the

29 CrRn-3373-22-J.odt

revisional Court to exercise the twin jurisdiction vested in it in cases

where the accused is in confinement and not in confinement. It has

also been observed that the revisional Court cannot insist upon the

confinement of the accused before ordering the suspension of sentence

or order passed against him.

36. In paragraph No. 6 of P. Ibrahim's case, the Kerala High Court

has observed thus;

"6. I should not be understood to hold that under no circumstances can a Revisional Court insist upon the attendance of an accused or his surrender to his bail before sentence is suspended. In cases where the Appellate Court after pronouncing Judgment directs that the accused's bail bonds are cancelled, the accused has necessarily to surrender to his bail before he can obtain an order of suspension of his sentence, from the Revisional Court. And in so doing, the Revisional Court has necessarily to release the petitioner on bail in addition to suspending the sentence passed against him, which means that if there is no direction by the Appellate Court for cancellation of the bail bonds, there is no necessity to release the accused on bail, because there is no need for him to surrender to his bail. Since Section 397 visualizes exercise of dual powers by the Revisional Court, to suspend the sentence and to release the accused on bail, it presupposes the fact that in one case, the

30 CrRn-3373-22-J.odt

accused is not in confinement while in the other he is confinement."

37. The observations are explicit that if the appellate Court cancel

the bail bonds, the accused, seeking suspension of the sentence before

the Revisional Court, has to surrender his bail bonds. The

interpretation of section 397 of Cr.P.C. does not indicate that the

sentence should be suspended where the accused is not confined in

each case.

38. In the above case, the case of Bihari Prasad Singh Vs. State of

Bihar (2000)SCC (Cri) 1380 has been referred. In the case of Bihari

Prasad Singh, the Patna High court had refused to hear or entertain the

matter on the ground that the accused had not surrendered.

Considering the facts, the Hon'ble Supreme Court held that under the

provisions of the Criminal Procedure Code, there is no such

requirement though many High Courts in this country have made such

provisions in the respective rules of the High Court. There were no

rules as such in the Patna High Rules. In that view of the matter, the

High Court was not justified in rejecting the application for Revision

solely on the ground that the accused has not surrendered.

31 CrRn-3373-22-J.odt

39. The observations of the Hon'ble Supreme Court in the case of

Bihari Prasad, were that in the absence of any Rules framed by the

High Court, the High Court cannot reject the revision petition solely on

the ground that the accused did not surrender after the confirmation of

the sentence of conviction by subordinate appellate Court.

40. The learned APP relying on the case of Vivek Rai and another v

High Court of Jharkhand through Registrar General and others 2015

AIR (SC) 1088, has vehemently argued that in the absence of Rule, as

such, the sentence cannot be suspended as a matter of course in every

case. Suspension of the sentence is a matter of discretion. The Rule

framed by the Jharkhand High Court regulating the procedure held not

against the provisions under Cr.P.C. dealing with the question of

suspension of sentence.

41. Rule 159, framed by the Jharkhand High Court, was regarding

non-posting the Revision for admission unless the petitioner has

surrendered to the custody in the concerned Court. The said Rule 159

read as under;

"In the case of Revision under Sections 397 and 401 of the Code of Criminal Procedure, 1973 arising out of conviction and sentence of imprisonment, the petitioner shall state whether the petitioner shall be accompanied

32 CrRn-3373-22-J.odt

by a certified copy of the relevant order. If he has not surrendered the petition shall be accompanied by an application seeking leave to surrender within specified period. On sufficient cause shown, the Bench may grant such time and on such conditions as it thinks and proper. No such revision shall be posted for admission, unless the petitioner has surrendered the custody in the concerned court."

42. Paragraph no. 9 of the above pronouncement appears relevant

that reads thus;

"9. It has not been disputed even by the learned counsel for the High Court that the Rule does not affect the inherent power of the High Court to exempt the requirement of surrender in exceptional situations. It cannot thus be argued that prohibition against posting of a revision petition for admission apples even to a situation where on an application of the petitioner, on a case being made out, the Court, in exercise its inherent power, consider it appropriate to grant exemption as found in corresponding Supreme Court Rules that if the Court grants exemption from surrender and directs listing of a case, the Rule cannot stand in the way the Courts exercise of such jurisdiction, has to be assumed in the impugned Rule."

33 CrRn-3373-22-J.odt

43. In paragraph no.19 of the said Judgment it has been observed

thus;

"19. The provisions of Section 389 Cr.P.C., and that of the Supreme Court Rules 1966 are independent provisions and will have to be considered on their own standing."

44. In the above case it has been held that the object of the Rule is to

ensure that a person who has been convicted by two courts obeys the

law and does not abscond. Similar is the object of Sections Section 387

r/w section 353(3) and (6) and 418 of Cr.P.C. It has also been held that

the Rule framed by the Jharkhand High Court thus cannot be held

arbitrary in any manner. The said Rule was framed to regulate the

Procedure of the Court and does not, in any manner, conflict with the

substantive provisions of the Cr.P.C.

45. The Bombay High Court has no rule like Jharkhand High Court.

However, this is not a case where the registry did not list the Revision

application under Section 397 r/w 401 of Cr.P.C., for admission nor

refused to register the Revision.

46. In view of the matter, it should be examined whether suspension

of sentence under section 397 Cr.P.C. without his arrest for sending him

for executing the sentence is obligatory.

34 CrRn-3373-22-J.odt

47. Section 401 of the Code of Criminal Procedure speaks of the

High Court's powers of Revision.

48. The words in section 397 Cr.P.C., as regards the suspension of

the sentence, the words used are "and may" when calling for such

record, direct that the execution of any sentence or order be

suspended, The words "may" gives the answer Whether suspension of

sentence under section 397 of Cr.P.C is mandatory.

49. The interpretation of the word 'may' mean it can never mean

must. In Rangaswami Textile Commissioner v Sagar Textile Mills (p)

Ltd AIR 1977 SC 1516, the Hon'ble Supreme Court held that when the

context shows that the power is coupled with an obligation, the word

"may" which denotes discretion should be construed to mean a

command. It is also the well-known Rule of interpretation that 'may'

will not be construed as mandatory if such a construction would defeat

the purpose of the Act or would lead to unjust results.

50. Under the revisional jurisdiction under Section 401 of the Code

of Criminal Procedure, the High Court may, at its discretion, exercise

any powers under sections 386, 389, 390 and 391 or on a Court of

Session by section 307 of the Cr.P.C. Therefore, the Court thinks that

Section 401 is in aid to Section 397 of Cr.P.C.

35 CrRn-3373-22-J.odt

51. The Hon'ble Supreme Court, in the case of Vivek Rai and

Another (supra) has discussed the ratio laid down in the case of

Mayuram Subramanian Srinivasan, AIR 2006 SC 2449, in paragraph

No. 18 of the said Judgment; it has been observed thus;

"The basic fallacy of Ms. Jaiswal's submission is that it overlooks the question that grant of bail in the appeal presupposes surrender by the convicted person."

52. In the case of Vivek Rai and another (supra) in paragraph No.9,

it has been observed that;

"it was not disputed that even by the learned counsel for the High Court that the Rule does not affect the inherent power of the High Court to exempt the requirement of surrender in exceptional situations."

53. In paragraph No.4 of Vivek Rai (supra), it has been further

observed that;

"It is well known practice that generally a revision against conviction and sentence is filed after an appeal is dismissed and the convicted person is taken into custody in Court itself."

54. Reading the ratio laid down in Vivek Rai, (in the absence of a

Rule like the Jharkhand High Court) and Sections 389, 397 and 401 of

36 CrRn-3373-22-J.odt

Cr.P.C. together, the Court is of the view that Section 389 Cr.P.C.

regulate the procedure for suspending the sentence. Provision of

suspension in Section 397 cannot destroy the purpose of Sections 384

and 418 of Cr.P.C. therefore, the word 'may' has been used in section

397 Cr.P.C. It is clear that in each case court is not supposed to suspend

the sentence under Section 397 Cr.P.C. It should be exercised in

exceptional circumstances. The different sections of the same Act

cannot be interpreted in conflict with each other. The rule of

interpretation of statute is the statute must be read as a whole and one

provision of the Act should be contrued with reference to other

provision in the same Act so as to make a consistent enactment of the

whole statute. [extracted from the box "Principles of Statutory

interpretation. By Justice G.P. Singh 3 rd Edition 2012 published by

Lexis Nexis Page No. 144 clause(6)]. Therefore, Sections 353, 418,

397, 389 of the Cr.P.C shall be read harmoniously.

55. In the earlier three orders placed on record the accused

succeeded in securing the suspension of the sentence as a matter of

course. This Court came across that in some cases, after the

confirmation of conviction, the accused is sent to jail for the execution

of sentence under a conviction warrant and in some cases, the

Subordinate appellate Courts have either granted time to appear

37 CrRn-3373-22-J.odt

before the trial court or directed the trial court to take necessary

action. In some of the cases the subordinate appellate Courts are

suspending the sentence. This inequality before the law created a mess,

and no uniformity in applying the law has been maintained. In such

situations treating the accused differently by different Court of same

rank needed to be addressed.

56. In view of the above discussion, the Court is of the opinion that

the in the absence of Rules as framed by the Jharkhand High Court

regarding posting of the Revision without surrender of the accused,

Sections 418 and 389 of Cr.P.C. regulate the procedure for dealing with

the Revision applications preferred under Section 397 of Cr.P.C. and the

accused without surrender or taken in to custody for the execution of

sentence cannot claim suspension of sentence under Section 397 of

Cr.P.C as matter of right.

57. With respect, I differ with a view taken by the learned

Coordinate Bench of this Court in the cases relied upon by the

applicants. However, the judicial discipline shall be maintained as

regards differing with the earlier view of the coordinate Bench. In this

regard, the Hon'ble Supreme Court in Valliamma Champaka Pillai Vs.

Sivathanu Pillai And Others 1979 AIR 1980 SCR (1) 354 h eld that it is

well settled that the decision of one High Court is not binding

38 CrRn-3373-22-J.odt

precedents upon another High Court and, at the most, can only have

persuasive value. However, at the cost of repetition, it must be

emphasized that the decision of another High Court rendered in the

context of the All India Act would have persuasive value, and normally

it would maintain uniformity and certainty. However, the Courts prefer

the law laid down by their own Court and adopt the view of the High

Court.

58. It is explicit from the above observations that where one High

Court renders the decision in the context of the All India Act, normally,

to maintain uniformity and certainty, the other Court adopt the view of

the High Court. In view of the preposition of law discussed above, it

would not be appropriate to pass the different orders in these matters.

The issue raise can be more advantageously heard by the Division

Bench for decision to resolve the issue. Thus, the following question is

formulated for reference to the Hon'ble Division bench.

Question : Whether in the absence of a Rule regulating the procedure framed by the High Court for admission or listing the Revision without surrender, the High Court under revisional jurisdiction under Section 397 of Cr.P.C. shall suspend the sentence without the surrender or arrest of the accused for sending him to jail for the execution of the sentence, as a matter of course?

59. The Registrar (Judicial) Aurangabad is requested to place the

matter before the Hon'ble the Chief Justice of Bombay High Court in

39 CrRn-3373-22-J.odt

accordance with Rule 7 Chapter I of the Bombay High Court Appellate

Side Rules, 1960.

60. The Court has observed the disparity about suspension of

sentence, delivering the judgments without securing the presence of

accused before pronouncing the judmgnet etc. in the first part of this

judgment. Hence, to avoid the disparity henceforth, the learned

Registrar (Judicial), High Court Bombay, Bench at Aurangabad, is

requested to circulate this order to all Judicial Officers throughout the

State through the learned Principal District and Sessions Judges.