Mullu Prajapati vs The State Of Madhya Pradesh
2022 Latest Caselaw 812 MP

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                             THE HIGH COURT OF MADHYA PRADESH
                                  Criminal Revision No.3174/2021
                                  Mullu Prajapati Vs. State of M.P.

                                    Through Video Conferencing
                   Gwalior, Dated: 18/01/2022

                         Shri Pratip Visoriya, Counsel for applicant.

                         Shri Avadhesh Parashar, Counsel for State.

                         This Criminal Revision under Sections 397, 401 of Cr.P.C. has

                   been filed against the judgment dated 13/8/2021 passed by First

                   Additional Sessions Judge, Datia in Criminal Appeal No.113/2018,

                   thereby affirming the judgment dated 7/9/2018 passed by the JMFC,

                   Bhander, District Datia in Criminal Case No.334/2015, by which the

                   applicant has been convicted under Section 379 of IPC and has been

                   awarded the jail sentence of one year rigorous imprisonment and a

                   fine of Rs.1,000/-, in default to undergo further R.I. of two months.

                   2.    It is fairly conceded by the counsel for the applicant that

                   although the appeal filed by the applicant was dismissed by judgment

                   dated 13/8/2021, but he has not surrendered so far. However, it is

                   submitted that it is incorrect to say that this Court cannot entertain

                   the Criminal Revision in absence of surrender certificate and the

                   Supreme Court in the case of Vivek Rai and another Vs. High

                   Court of Jharkhand Through Registrar General and others

                   reported in (2015) 12 SCC 86 has held that the discretion lies with

                   the Court. It is further submitted that it is a fit case where the

                   discretion may be exercised and the applicant may be granted some

                   time to surrender before the Trial Court.

                   3.    Heard learned counsel for the parties.

ARUN KUMAR
MISHRA
21.01.2022

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THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.3174/2021 Mullu Prajapati Vs. State of M.P.

4. The Supreme Court in the case of Vivek Rai (supra) has held

that even if the High Court Rules require surrender of an accused,

still the Revision Petition under Section 397/401 of Cr.P.C. can be

registered. The High Court Rules do not regulate the procedure of the

Court and do not in any manner conflict with the substantive

provisions of Section 397/401 of Cr.P.C. and, therefore, it has been

held as under:-

11. 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 applies even to a situation where on an application of the petitioner, on a case being made out, the Court, in exercise of its inherent power, considers it appropriate to grant exemption from surrender having regard to the nature and circumstances of a case. Thus, the exception as found in the 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 of the Court's exercise of such jurisdiction, has to be assumed in the impugned Rule.

5. Thus, it is clear that in spite of the relevant Rules in the High

Court Rules, the High Court can exempt the applicant in exceptional

situations.

6. The question as to whether the Revision is maintainable

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THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.3174/2021 Mullu Prajapati Vs. State of M.P.

without surrender by the accused or not, has also been put to rest by a

coordinate Bench of this Court in the case of Deepak Sahu and

others Vs. State of M.P. reported in 2012 (3) MPLJ 534.

7. Now the only question which requires consideration is "as to

whether the applicant has made out an exceptional situation

warranting exercise of inherent powers of exempting the applicant

from the requirement of surrender or not?"

8. IA No.32509/2021, an application for exemption from

surrender has been filed, in which it is merely mentioned that there is

no mandate of surrender under Cr.P.C. and during the course of

appeal as well as trial the applicant was on bail. Why this Court

should exercise its extraordinary power to exempt the applicant from

surrendering, has not been mentioned at all. Furthermore, the

impugned judgment was passed by the appellate Court on 13/8/2021

and thereafter, this Revision was filed on 26/11/2021, i.e. after 90

days. Thereafter, the case was listed on 30/11/2021 and on the said

date, the counsel for the applicant withdrew IA No.32507/2021,

which was filed for exemption to surrender. Thereafter, on 8/12/2021

time was granted to the counsel to file the surrender certificate. On

20/12/2021 again the case was adjourned. On 3/1/2022 again the case

was adjourned at the request of the counsel for the applicant. Today

also it is fairly conceded by Shri Pratip Visoriya that the applicant has

not surrendered.

9. Under these circumstances, no case is made out warranting ARUN KUMAR MISHRA 21.01.2022 11:04

THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.3174/2021 Mullu Prajapati Vs. State of M.P.

exercise of extraordinary powers for exempting the applicant from

surrender.

10. Accordingly, this Criminal Revision is dismissed as not

maintainable.

(G.S. Ahluwalia) Judge Arun*

ARUN KUMAR MISHRA 21.01.2022 11:04