Jharkhand High Court
Fatik Chandra Gope vs The State Of Jharkhand on 30 September, 2024
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 884 of 2022
1. Fatik Chandra Gope, aged about 48 years, son of Karan Gope
2. Makra Gope @ Dev Charan Gope @ Dev Kumar Gope, aged about 42
years, son of Karan Gope
Both resident of village Lupungdih, P.O. Nimdih, P.S. Nimdih, District-
Seraikella Kharsawan ... Appellants
-Versus-
The State of Jharkhand ... Respondent
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Appellants : Mr. Vikash Kumar, Advocate
For the State : Mr. Pankaj Kumar, P.P.
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11/30.09.2024 This appeal has been preferred against the judgment of conviction
and order of sentence dated 22.09.2022 passed by the learned Additional
Sessions Judge, Chandil in Sessions Trial Case No.92 of 2018, arising out of
Nimdih P.S. Case No.32/2017, corresponding to G.R. Case No.1040/2017,
whereby, the appellants have been sentenced to undergo R.I. for one
month under Section 341 of the Indian Penal Code, R.I. for one month
under Section 447 of the Indian Penal Code, R.I. for one year under Section
324 of the Indian Penal Code and R.I. for 3 years and fine of Rs.5,000/-
each under Section 325 of the Indian Penal Code and in default of payment
of fine, the appellants have been directed to undergo S.I. for one month
and all the sentences have been directed to run concurrently.
2. There are several defects in this matter. So far as defect no.2 is
concerned, that is with regard to surrender certificate of the appellants and
with regard to limitation. Office has pointed out that in the certified copy of
the impugned judgment, cage column is not there and in view of that,
limitation has not been noted.
3. In view of that, office shall send back the certified copy of the
impugned judgment to the learned trial court with regard to rectify the said
mistake. This exercise shall be completed within four weeks.
4. So far as surrender certificate is concerned, learned counsel for the
appellants submits that provisional bail was already granted to the
appellants for 30 days, however, the appellants who happened to be poor
persons, have not been able to understand the legal point with regard to
confirmation of the said provisional bail before the High Court and,
therefore, they have not taken steps in time and in view of that, for
confirmation of provisional bail, I.A. No.11765 of 2022 has been filed. He
further submits that the appellants have not been able to file it within time
and they were not knowing about the procedure and in view of that, the
said mistake of the appellants may kindly be ignored and provisional bail
may kindly be confirmed.
5. Learned counsel appearing for the State submits that the requirement
is there to produce surrender certificate if the provisional bail is not
confirmed.
6. 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.
7. Section 418 of the Code in particular deals with execution of sentence
of 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.
8. In light of Section 418 of the Cr.P.C., the process of issuing warrant
to apprehend the convict is required to be followed diligently. The
difficulty arises when the warrants so issued by the court concerned remain
unexecuted. This happens not only in cases where the accused has
been convicted and sentenced by the trial court but also where an appeal or
revision preferred against the conviction is eventually dismissed by the
High Court. There is no manner of doubt that even in such cases the
court is under an obligation after receipt of an intimation about the
dismissal of the appeal or revision preferred by the convicts, to follow
the procedure under Section 418 Cr.P.C. for apprehension of the accused, in
case he has not surrendered voluntarily, and to commit him to jail
to undergo the sentence awarded to him. Experience, however, shows
that when warrants are forwarded to the police for execution the
same remain unexecuted for years. In the case in hand, the appeal
has already been filed, however, the provisional bail has not been
confirmed.
9. A reference may be made to the judgment passed by the Hon'ble
Supreme Court in the case of M/s Bhaskar Industries Ltd. v. M/s
Bhiwani Denim and Apparels Ltd. & others , reported in
MANU/SC/0489/2001 : AIR 2001 SC 3625 .
10. In view of the above well settled provisions of law and
considering that even in many cases after pronouncement of judgment
accused are not being apprehended in spite of the best efforts. In the
case in hand, the appellants have already moved before this Court by way
of filing an appeal, however, provisional bail was not confirmed within time,
as such, I.A. No.11765 of 2022 is being disposed of with following
directions:
(i) The appellants/accused shall appear in person before the learned
Court, who has passed the judgment along with his Advocate and it
will be open for them to file fresh application for extension of the
provisional bail order to enable him to file another application with
regard to confirmation of the said provisional bail. If any such
application is filed by the appellants/accused, the learned Court shall
pass an appropriate order on the said application in accordance with
law on the very same day.
(ii) The appellants/accused shall appear before the learned Court
within a period of 15 days from today. If the appellants fail to appear,
then non-bailable warrant shall be executed and the appellants/
accused be arrested and sent to jail for serving the sentence.
(iii) After completing the legal formalities explained here-in-above,
it is open to the appellants to file another application before the
learned Court for confirmation, if provisional bail order is extended by
the learned trial court and also pray for confirmation of the said
provisional bail.
11. Accordingly, I.A. No.11765 of 2022 is disposed of.
12.. Learned counsel for the appellants submits that so far as surviving
defects are concerned, it will be removed within two weeks.
(Sanjay Kumar Dwivedi, J.)
Ajay/
