Madhya Pradesh High Court
Sheela Wadnerkar vs The State Of Madhya Pradesh on 28 November, 2022
Author: Sujoy Paul
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRR No. 4405 of 2022
(SHEELA WADNERKAR Vs THE STATE OF MADHYA PRADESH)
Dated : 28-11-2022
Shri Sankalp Kochar, learned counsel for the applicant.
Shri Prasannajeet Chatterjee, learned P.L. for the respondent / State.
Record of the court below be requisitioned.
Heard on admission, IA No. 21813/2022 seeking exemption from
surrendering and IA No. 21812/2022 for suspension of sentence arising out of
judgment dated 12.09.2022 delivered in CRA. No. 176/2017 by Ist Additional
Sessions Judge, Khandwa, Distt. Khandwa affirming the order of conviction
and sentence passed by JMFC, Khandwa, Distt. Khandwa in Criminal Case No.
2826/2009 whereby the appellant was convicted and sentenced under section
420/34 of IPC to undergo R.I. for 3 years with fine of 1000/- with default
stipulation.
Learned counsel for the applicant submits that applicant is aged about 50
years. She is suffering from cancer which is evident from the certificate issued
by Office of Civil Surgeon, District Hospital, District Khandwa dated
10.11.2022 (Annexure A-3). The other medical documents filed along with the
application showing that applicant is suffering from cancer and is taking
Chemotherapy are also filed along with the application. By placing reliance on
the judgment of the Supreme Court reported in (2015) 12 SCC 86 (Vivek Rai
and Ors. Vs. High Court of Jharkhand), it is argued that in exceptional
circumstances like serious ailment etc. notwithstanding the High Court Rules,
this Court can exempt the applicant from surrendering.
The judgment of Vivek Rai (supra) was followed by this Court in CRR
Signature Not Verified
Signed by: NAVEEN KUMAR
SARATHE
Signing time: 11/28/2022
5:24:53 PM
No.37/2020 (Nirmal Sen Vs. State of M.P. ) decided on 09.01.2020. This
Court came to hold that relevant rules of Jharkhand High Court considered in
Vivek Rai (supra) is pari materia to relevant rules of M.P. High Court. In
Nirmal Sen (supra) also the applicant was permitted not to surrender. Same is
the order passed in CRA.5932/2022 (Nityanarayan Pandey Vs. The State
of M.P.) dated 26.07.2022.
Considering the aforesaid, since an exception situation and serious
ailment is there, applicant may be given the exemption from surrendering and in
addition, her remaining jail sentence may be suspended.
Shri Chatterjee, learned P.L. for the State raised objection.
The Apex Court in Vivek Rai (Supra) opined as under :-
"10. 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 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 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
Signature Not Verified
Signed by: NAVEEN KUMAR
SARATHE
Signing time: 11/28/2022
5:24:53 PM
in the impugned Rule."
[Emphasis Supplied]
A Coordinate Bench in Nirmal Sen (Supra) opined as under :-
"Hon’ble Apex Court in the case of Vivek
Rai and another Vs. High Court of Jharkhand,
(2015) 12 SCC 86, clearly explained that in
exceptional cases where the applicant is suffering from
some grievous diseases and admitted in the hospital,
revision can be entertained. Rule 48 of High Court of
Madhya Pradesh, 2008 is pari materia with Rule 159 of
the Jharkhand High Court Rules."
In these circumstances, considering the illness of the
applicant and as observed by the appellate Court, in the
order sheet, this Court finds exceptional case of the
applicant and without surrendering before the trial
Court entertain this criminal revision against the
impugned judgment.
[Emphasis Supplied]
Similarly in CRA. No. 5932 of 2022 applicant was exempted from
surrendering and suspension was granted.
In my opinion, considering the seriousness of ailment of applicant, it is a
fit case for granting exemption from surrendering. Accordingly, applicant is
granted exemption from surrendering. Accordingy, IA No. 21813/2022 is
allowed.
IA No. 21812/2022 for suspension of sentence is also allowed.
Subject to depositing the fine amount, if not already deposited, the
remaining jail sentence of the applicant is hereby suspended and it is directed
that the applicant- Sheela Wadnerkar be released on bail on her furnishing a
personal bond for the sum of Rs. 50,000/- (Rupees Fifty Thousand only)
with one solvent surety of the like amount to the satisfaction of concerned trial
Signature Not Verified
Signed by: NAVEEN KUMAR
SARATHE
Signing time: 11/28/2022
5:24:53 PM
court. The applicant shall appear before the Trial Court Khandwa, Distt.
Khandwa on 01.03.2023 and further dates may be fixed by the Court in this
regard during the pendency of this revision.
C.C. as per rules.
(SUJOY PAUL)
JUDGE
sarathe
Signature Not Verified
Signed by: NAVEEN KUMAR
SARATHE
Signing time: 11/28/2022
5:24:53 PM
