Abdul Samad vs The State Of Madhya Pradesh
2023 Latest Caselaw 474 MP

                                     1
           IN THE HIGH COURT OF MADHYA PRADESH
                               AT INDORE

                         CRR No. 4722 of 2022
                 (ABDUL SAMAD Vs THE STATE OF MADHYA PRADESH)



Dated : 09-01-2023

      Shri Vivek Singh, learned counsel for the petitoiner .
      Shri Kapil Mahant, PL for the respondent/State.

____________________________________________________________ Heard on admission.

Revision is admitted for final hearing.

Also heard on I.A. no. 16060/2022, which is an application for exemption from surrender of the petitioner before the trial Court.

Leaned counsel for the petitioner contended that the trial Court has convicted the petitioner for the offence punishable under section 409 and 477 of IPC and sentenced to undergo two years R.I with fine of Rs. 2000/- and one year R.I with fine of Rs. 1000/- with default stipulation. The appellant is 84 years old person and suffering from various diseases, hence the petitioner be exempted from surrendering before the trial Court.

Learned counsel for the respondent/State opposed the application and prays for its rejection.

The petitioner has filed various photographs and medical certificates also placed reliance upon the judgments in respect of his contention.

The Supreme Court in the case of Bihari Prasad Singh Vs. State of Bihar reported in (2000) 10 SCC 346 has held as under :

"3 Under the provisions of Criminal

Procedure Code, there is no such requirement though many High Courts in this Court have made such provision in the respective rules of the High Court. But is it is stated to us that there is no such rule in the Patna High Court Rules. In that view of the matter, the Court was not justified in rejecting the application for revision solely on the ground that the accused has not surrendered "

(emphasis supplied ) 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 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".

Thus, it is clear 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 and in spite of relevant Rules in the High Court Rules, the High Court can exempt the applicant in exceptional situations. Therefore, 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?"

In the present case, appeal of the petitioner was dismissed vide judgment dated 01/12/2022 passed by the Additional Sessions Judge, Mandleshwar in Criminal Appeal no. 21/2017. Now, the petitioner is 84 years old person and suffering from various diseases, therefore it is exceptional situation warranting exercise of power of this Court by exempting the petitioner from surrender before the trial Court.

Accordingly, I.A. no. 16060/2022 is allowed and the petitioner is exempted from surrendering himself before the trial Court.

Also heard on I.A. no. 15961/2022, which is an application filed under section 397 of Cr.P.C for grant of bail and suspension of remaining jail sentence of the petitioner.

Taking into consideration all the facts and circumstances of the case as also taking note of the fact that the appellant is 84 years old person and suffering from various diseases; he is facing trial for last 38 years and final hearing of the revision will take considerable long time, I deem it proper to suspend the remaining jail sentence of appellant

Accordingly, IA No.15961/2022 is allowed and the execution of remaining jail sentence of the petitioner is hereby suspended till the final disposal of this revision and it is ordered that the petitioner be released on bail upon his depositing the fine amount, if not already deposited, and upon furnishing a personal bond in the sum of Rs.75,000/- with one solvent surety of the like amount to the satisfaction of the trial Court, with a further direction to appear before the Registry of this Court on 16/03/2023 and on such other dates, as may be fixed by the Registry of this Court in this regard during the pendency of this appeal.

Let the matter for final hearing in due course.

C.C. as per rules.

(ANIL VERMA) JUDGE amol

Digitally signed by AMOL N MAHANAG Date: 2023.01.09 18:13:54 +05'30'