Laxmandas vs The State Of Madhya Pradesh
2022 Latest Caselaw 8389 MP

IN THE HIGH COURT OF MADHYA PRADESH AT INDORE CRR No. 3052 of 2021 (LAXMANDAS Vs THE STATE OF MADHYA PRADESH)

Dated : 24-06-2022 Shri Pratap Chandra Mehta, learned counsel for the Petitioner.

Shri Vikas Jaiswal Pl appearing on behalf of Advocate General. Heard IA No.38734/2021 (An application for exemption from surrender) and I.A. No.38736/2021 an application for suspension of jail sentence of the petitioner.

The petitioner is convicted under Section 409 of IPC vide judgement

dated 25.05.2017 by JMFC, Jhabua, District Jhabua in Crime No.280/1997 affirmed by learned Sessions Judge, Jhabua in Criminal Appeal No.103/2017 passed vide order dated 30.10.2021 whereby the the petitioner was convicted for two years R.I. with fine of Rs.7000/- with default stipulations.

Being aggrieved the judgment, the present revision petition has been filed by the petitioner before this Court.

As per Rule 48 Chapter X of High Court of M.P. Rules,2008, the revision memo should contain the declaration that the applicant has surrendered before the Court below before consideration of application for suspension of

jail sentence.

Learned counsel for the petitioner relying on the judgment passed by Apex Court in the matter of Vivek Rai and another vs. High Court of Jharkhand (2015) 12 SCC 86 as well as relying on the order dated 23.07.2019, passed by this court in CRR No.3467/2019 [Smt. Lata W/o Nitin Signature Not VerifiedDigitally signed by SAN AMIT KUMAR Date: 2022.06.27 Khandelwal vs. Manjul S/o Satyaprakash Saxena] and submits that petitioner 18:45:38 IST

may be exempted from surrendering before the trial Court and revision is

maintainable.

In light of the aforesaid judgment, he further submits that Rule 48 of the High Court of M.P. Rules, 2008 is pari materia with the Rule 159 of Jharkhand High Court. In this Rule also the applicant is required to be surrendered before the trial Court and declaration to that effect should be filed alongwith revision memo while interpretating the said Rule.

The Apex Court in the case of Vivek Rai (Supra) has held that this rule does not affect the inherent powers of the High Court to exempt the applicant from surrendering in exceptional cases.

In light of the aforesaid, she prayed that the petitioner may be exempted

from surrendering before the trial Court. It is also prayed that the petitioner be exempted from surrendering before the Court below, as the applicant is aged about 80 years and suffering from heart stroke twice and due to financial hardships, he is unable to perform necessary surgery. The petitioner is also suffering from neurological disorder Left Trigeminal Neuralgia, eye related ailment and cervical problem. It is further submitted that all the medical documents related to the aforesaid disease have already been filed before the Courtm therefore, looking to his health condition, his case may be treated as an exceptional case and he may be exempted from surrendering before the Court below and prays for grant of suspension of jail sentence.

Heard learned counsel for the petitioner and perused the record. A question in the present case is arose whether sentence can be suspended despite the fact that petitioner has not surrendered before the Court below. Chapter X of Section 48 of High Court of M.P. Rules, 2008 read thus :-

Signature Not VerifiedDigitally signed by
  SAN                 AMIT KUMAR
                      Date: 2022.06.27
                      18:45:38 IST

œ48. A memorandum of appeal or revision petition against conviction, except in cases where the sentence has been suspended by the Court below,

shall contain a declaration to the effect that the convicted person is in custody or has surrendered after the conviction. Where the sentence has been so suspended, the factum of such suspension and its period shall be stated in the memorandum of appeal or revision petition, as also in the application under Section 389 of Code of Criminal Procedure, 1973."

An application under Section 397 of Cr.P.C. shall, as far as possible, be in Format No.11 and shall be accompanied by an affidavit of the appellant/applicant or some other person acquainted with the facts of the case.

As per the rules which are framed by Jharkhand High Court Rule 159, are also requires surrender of the accused before the Court below.

Considering the aforesaid Rules, the Hon'ble Supreme Court in Vivek Rai (Supra) in para 10 and 11 has held as under :-

œ10. Only further submission put forward is that inherent power of the Court to direct listing of the case by exempting the requirement of surrender has been taken away. It is pointed out that even in Supreme Court Rules prohibition against listing without surrender is not applicable if the Court otherwise directs. Such exception is not to be found in the impugned Rule.

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

Signature Not VerifiedDigitally signed by SAN AMIT KUMAR on an application of the petitioner, on a case being made out, the Date: 2022.06.27 18:45:38 IST

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 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.Â​ As per the judgment passed by Hon'ble Apex Court in exercise of inherent powers of High Court, the High Court can consider it appropriate to exempt the accused from surrendering before the Court below having regard to the nature and circumstances of the case.

The present case is related to the Offence under Section 409 of IPC and the petitioner is old aged about 80 years and already suffering from several diseases, therefore, it can be treated as an exceptional case, therefore, treating the case of the petitioner as exceptional, petitioner is exempted from surrendering before the trial Court by allowing the application I.A. No.28734/2021.

Thus, in the facts and circumstances of the case, without expressing any opinion on the merits of the case, the application (IA No.28736/2021) for suspension of jail sentence is allowed subject to depositing fine amount It is directed that on furnishing personal bond of Rs.50,000/- (Rupees Fifty Thousand Only) with one solvent surety in the like amount to the satisfaction of the trial Court for his appearance before this Court/Registry on 12.09.2022 and on all other subsequent dates, as may be fixed by the Registry in this behalf, the execution of substantial jail sentence imposed on the petitioner Signature Not VerifiedDigitally signed by SAN AMIT KUMAR Date: 2022.06.27 18:45:38 IST shall remain suspended, till the final disposal of this revision, subject to complying the condition mentioned above.

Also heard on the question of admission.

The revision seems to be arguable, therefore, this revision is admitted for final hearing.

A copy of this order be sent to Court concerned for it's compliance. C.C. as per rules.

(RAJENDRA KUMAR (VERMA)) JUDGE

Signature Not Verified VerifiedDigitally Digitally signed by SAN AMIT KUMAR Date: 2022.06.27 18:45:38 IST