Rajesh vs The State Of Madhya Pradesh
2024 Latest Caselaw 5234 MP

Madhya Pradesh High Court

Rajesh vs The State Of Madhya Pradesh on 21 February, 2024

Author: Dinesh Kumar Paliwal

Bench: Dinesh Kumar Paliwal

                                                           1
                                     IN THE HIGH COURT OF MADHYA PRADESH
                                                  AT JABALPUR
                                                    CRA No. 7410 of 2023
                                             (KISHORE Vs THE STATE OF MADHYA PRADESH)

                                        CRA/07414/2023, CRA/07502/2023, CRA/07505/2023
                         Dated : 21-02-2024
                               Shri Amalpushp Shroti-Advocate for the appellants.

                               Shri B.D. Singh-Deputy Advocate General for the respondent/State.

Heard on I.A.No.14713/2023, I.A.No.14720/2023, I.A.No.14710/2023 and I.A.No.14718/2023, applications for exemption from certified copy of judgment dated 28.04.2023.

2. These appeals under Section 374(2) of the Code of Criminal Procedure have been filed assailing the judgment of conviction and order of

sentence dated 28.04.2023 delivered by Ist ASJ, Burhanpur (M.P.) in S.T.No.200074/2014 (State of M.P. vs. Deepak and others) whereby appellant-Kishore has been convicted for commission of offence under Sections 409/120B, 420/120B of IPC and Section 6 of M.P. Madhya Pradesh Nikshepakon Ke Hiton Ka Sanrakshan Adhiniyam, 2000 and has been sentenced to undergo R.I. for 10 years and fine of Rs.5000/- (78 counts), R.I. for 3 years and fine of Rs.2000/- (78 counts) and R.I. for 3 years and fine of

Rs.1000/-(78 counts) with default stipulations, appellant-Divya has been convicted for commission of offence under Sections 409/120B, 420/120B of IPC and Section 6 of M.P. Madhya Pradesh Nikshepakon Ke Hiton Ka Sanrakshan Adhiniyam, 2000 and has been sentenced to undergo R.I. for 10 years and fine of Rs.5000/- (78 counts), R.I. for 3 years and fine of Rs.2000/- (78 counts) and R.I. for 3 years and fine of Rs.1000/-(78 counts), appellant-Rajesh has been convicted for commission of offence under

Sections 409/120B, 420/120B of IPC and Section 6 of M.P. Madhya Pradesh Nikshepakon Ke Hiton Ka Sanrakshan Adhiniyam, 2000 and has been sentenced to undergo R.I. for 5 years and fine of Rs.5000/- (78 counts), R.I. for 3 years and fine of Rs.2000/- (78 counts) and R.I. for 3 years and fine of Rs.1000/-(78 counts) with default stipulations and appellant-Kedu has been convicted for commission of offence under Sections 409/120B, 420/120B of IPC and Section 6 of M.P. Madhya Pradesh Nikshepakon Ke Hiton Ka Sanrakshan Adhiniyam, 2000 and has been sentenced to undergo R.I. for 10 years and fine of Rs.5000/- (78 counts), R.I. for 3 years and fine of Rs.2000/- (78 counts) and R.I. for 3 years and fine of Rs.1000/-(78 counts) with default

stipulations.

3. Rules 43, 44 & 45 of Chapter X of High Court of Madhya Pradesh Rules, 2008 reads as under:-

43.The cause title of every memorandum of appeal, petition or application shall contain -

(1) the name, description and address with police station of each appellant, petitioner or applicant;

(2) the name, description and address with police station of each person who is proposed to be made the opposite party;

(3) the status (whether prosecution, complainant, applicant, accused or non-applicant etc.) of the parties in the Court of first instance.

44. Every memorandum of appeal or revision petition shall have endorsed, immediately below the provision under which such memorandum or petition is filed, the provision of law under which the conviction is recorded and the details of the sentence imposed, including fine, if any.

45. (1) Every memorandum, petition or application to initiate a main case shall state clearly -

(a) (i) the name of the Judge and designation of the Court;

(ii) date of the impugned judgment/order; and

(iii) case number in which such judgment / order was passed

-by the original and/or appellate Court,

(b) facts of the case in brief;

(c) grounds, numbered serially; and

(d) relief prayed for.

(2) Every such memorandum, petition or application, shall be accompanied by a certified copy of the impugned judgment or order 1 [ and if any annexure filed shall be certified as true copy by the filing advocate or by the party] 2[ and that of the judgment or order of the Court of first instance where the impugned judgment or order was passed in an appeal or a revision.

Provided that the Court may dispense with the requirement of filing certified copy of the order of the Court of first instance at the stage of admission if a true copy thereof is filed on affidavit or a copy thereof is certified as true by the Counsel.] (3) Where the Court has ordered notice to be issued, the appellant, petitioner or applicant shall supply as many legible typed/printed copies or photocopies of memorandum of appeal, petition for revision, application for grant of bail or application for grant of any urgent relief pending appeal or revision, or affidavit, certified to be correct by the party supplying them or his advocate, as there be parties to be served:

No notice shall be issued from the office until the required number of

such copies have been supplied.

4. On perusal of the aforesaid rules, it is apparent that every appeal memorandum, petition or application shall be accompanied by a certified copy of the impugned judgment or order. In these appeals, appellants have not filed certified of the impugned judgment but only photocopies have been filed. The

reason stated for not filing of certified copy is that local counsel had informed that tickets are not available therefore, certified copy of the judgment could not be arranged. No affidavits have been filed in support of the applications.

Therefore, reason shown for non-filing of certified copy of impugned judgment does not appear worth acceptance. Hence, no plausible and sufficient reason is visible to exempt above appellants from filing the certified copy of the impugned judgment.

5. Therefore, in view of above, I.A.No.14713/2023, I.A.No.14720/2023, I.A.No.14710/2023 and I.A.No.14718/2023 are dismissed and appellants are directed to file certified copy of the impugned judgment.

6. Heard on I.A.No.19590/2023, I.A.No.19588/2023, I.A.No.19599/2023 and I.A.No.19589/2023, applications for exemption from surrender.

7. Appellants on the date of delivery of judgment dated 28.04.2023 had not appeared before the trial Court and an application for exemption under Section 317 of Cr.P.C.was filed which was dismissed by the trial Court. They have been convicted and sentenced as aforesaid.

8. Exemption from surrender has been sought on the ground that learned trial Court has overlooked vital facts. There is nothing on record to suggest that there was no absolute promise on the part of the appellants to return the said money. In absence of such vital evidence, the benefit of doubt should have been given to the appellants as learned trial Court has not considered the aforesaid aspects. Therefore they cannot be held guilty for dishonest intention and criminal breach of trust. The basic ingredients of Section 409 of IPC are also not established. Therefore, appellants are not in a position to surrender before the trial Court. Hence, it is prayed that appellants may be exempted from surrender.

9. To buttress his argument, learned counsel for the appellants has relied on Bihari Prasad Singh vs. State of Bihar and another (2000) 10 SCC 346 in which Hon'ble Apex Court observed as under:

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

10. Learned counsel has also relied on Kishore Virvani vs. V.N. Gangrade 2009 Cr.L.R. (M.P.) 801 judgment dated 13.08.2008 by Coordinate Bench of this Court in which it is held that there is no rule which compels the petitioner to surrender before filing revision to the High Court and is also not a pre-requisite condition for accused to surrender in compliance of judgment of Appellate Court. But it is settled practice that at the time of pronouncing judgment by the Appellate Court the presence of appellant is ensured and in case the appeal is dismissed the accused/appellant is being taken into custody. In the light of aforesaid pronouncement, exemption from surrender has been sought.

11. On the other hand, learned Deputy Advocate General for the State has opposed exemption from surrender and has submitted that no specific reason has been assigned for granting exemption from surrender. The only reason which has been assigned is that learned trial Court has not considered the evidence in proper perspective. It is submitted that merit of the trial Court judgment cannot be considered at this stage as same has to be considered at the time of final hearing of appeal while these appeals have not been admitted so far. It is further submitted that Rule 48 of Chapter X of High Court of Madhya

Pradesh Rules 2008 makes it mandatory that appeal and revision petition or memorandum against conviction is tenable only when it contains the declaration to the effect that convicted person is in custody or has surrendered after the conviction except in cases where the sentence has been suspended by the trial Court.

12. I have heard above rival submissions put-forth by learned counsel for the parties and perused the material on record.

13. It would be suffice to note that case laws relied on by learned counsel for the appellants have already been considered by Single Bench of this Court in case of Deepak Sahu and others vs. State of M.P. 2012(3) M.P.L.J. 534.

After considering the cases of Bihari Prasad Singh (supra), Kishore Virvani (supra) and Chapter X Rule 48 of High Court of Madhya Pradesh Rules 2008, Coordinate Bench of this Court held in para 8,9 & 10 as under:

8. In the considered opinion of this Court, the language employed in Rule 48 makes it crystal clear that a declaration is mandatory for the accused to the effect that he is in custody or has surrendered after the conviction. The only exception provided in the rule is where the sentence has been suspended by the Court below. In other words, except in cases where a sentence was suspended by the Court below itself, in all other cases there has to be a declaration to the effect that the convicted person is in custody or has surrendered after the conviction.

Thus, the intention of rule makers is unambiguous and clear regarding giving of such declaration. Needless to mention that an accused can give such declaration only if he is in custody or surrendered after the conviction. Thus, undoubtedly, the intention of rule is that one has to surrender after conviction or should be in custody except in those cases where sentence has been suspended by the Court. The word "shall" is used to make it mandatory. This is salutary principle of statutory interpretation that when the words of a statute are clear, plain and unambiguous, the Courts are bound to give effect to that meaning irrespective of consequences. Nelson Motis v. Union of India, (1992) 4 SCC 711 : AIR 1992 SC 1981.

9. The Apex Court also held that "if the words of the statute are

in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do alone in such cases best declare the intent of the lawgiver." (page 50 Principles of Statutory Interpretation) (12th Edition 2010 by Justice G.P. Singh). The Apex Court also opined that when language is plain and unambiguous and admits of only one meaning no question of construction of a statute arises, the Act speaks for itself. In the light of this legal position, I have no hesitation to hold that Rule 48 makes it mandatory for the accused to give declaration about his surrender after the conviction or about the fact regarding his remaining in custody.

10. Since Rule 48 in specific was not brought to the notice of this Court in Kishore (supra), the said judgment is clearly distinguishable on this aspect. On the basis of aforesaid analysis, it is held that a revision petition against conviction is tenable only when it contains a declaration to the effect that the convicted person is in custody or has surrendered after the conviction except in cases where the sentence has been suspended by the Court below.

14. On perusal of Chapter X Rule 48 of the High Court of Madhya Pradesh Rules, 2008, it is apparent that an appeal memorandum against conviction is tenable only when it contains a declaration to the effect that the convicted person is in custody or has surrendered after the conviction except in cases where the sentence has been suspended by the Court below.

15. The aforesaid judgment of Deepak Sahu (supra) was reiterated in the case of Pramod Kumar Dwivedi vs. State of M.P. 2021 SCC OnLine MP 5268, Mallu Prajapati vs. State of M.P. 2022 SCC OnLine MP 3533 also. Hon'ble Apex Court in the case of Vivek Rai vs. High Court of Jharkhand through Registrar General reported in (2015) 12 SCC 86 has held in para 11 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 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."

8.Thus, it is clear that even if the High Court Rules require surrender of an accused, still the Revision 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?"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.

16. In the case in hand, the appellants have been convicted for commission of offence under Sections 409/120B, 420/120B of IPC and Section 6 of M.P. Madhya Pradesh Nikshepakon Ke Hiton Ka Sanrakshan Adhiniyam, 2000 and have been sentenced as aforesaid. The only reason which has been assigned by the appellants, is that the findings recorded by the learned trial Court are not proper and in accordance with law. As already stated that merit of appeals cannot be considered at this stage. As such, I am of the considered view that the grounds raised by the appellants in their applications for exemption from surrender are not indicative of any exceptional situation warranting exercise of power by this Court for exempting the appellants from surrender. Therefore, no case is made out for granting of exemption from surrender.

17. Accordingly, I.A.No.19590/2023, I.A.No.19588/2023, I.A.No.19599/2023 and I.A.No.19589/2023 are dismissed.

18. Appellants are directed to surrender before the trial Court within 40

(forty) days from today and are directed to file certified copy of the impugned judgment.

19. A copy of this order be sent to the trial Court. If appellants fail to surrender within the aforesaid period, learned trial Court shall take all necessary steps to get them arrested and to send them to jail for undergoing the sentence as awarded by it.

(DINESH KUMAR PALIWAL) JUDGE

b