Madhya Pradesh High Court
Devnarayan vs Prateek Goyanka on 28 May, 2024
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
CRR No. 1912 of 2024
(DEVNARAYAN AND OTHERS Vs PRATEEK GOYANKA)
Dated:- 28-05-2024
Shri Ajay Jain, learned counsel for the Petitioner .
1.
This Criminal revision under Section 397 read with
Sction 401 of the Criminal Procedure Code, 1973 (hereinafter to be
referred to as "CRPC") has been filed by the applicant against the
judgement dated 15.4.2024, passed by the Additional Sessions
Judge and Special Judge Electricity in CRA.No.219/2022;
whereby, the learned additional Sessions Judge has dismissed the
appeal preferred by the appellants against the order dated
11/7/2022 passed by the learned JMFC Indore, along with an
application for suspension of sentence. Admittedly, the petitioner
has not surrendered before the District Appellate Court.
2. Although, no application for exemption from appearance has
been filed, however, Shri Ajay Jain, learned counsel appearing for
the petitioner has submitted that the petitioner is, and was not
required to surrender before the District Appellate Court even after
his conviction, as it is not mandatory for the petitioner to do so as
has already been held by the coordinate Bench of this Court at
principal Seat at Jabalpur, in the case of Sanjay Nagayach Vs.
State of Madhya Pradesh in CRR.No.729/2024 vide order dated
20.2.2024, wherein this Court has also considered Rule 48 of
Chapter X of the M.P. High Court Rules and Orders, and has held
there is no requirement for a convict to surrender or to remain in
jail for filing a criminal revision.
3. Heard. On due consideration, and on perusal of the judgment
rendered by the Coordinate Bench of this Court at Principal Seat at
Jabalpur in the case of Sanjay Nagayach (supra), it is found that
although the learned single judge has referred to Rule 48 of the
Chapter X of MP High Court Rules and Order, however, this court
has also come across an earlier decision by the coordinate Bench of
this Court at Gwalior in the case of Deepak Sahu v. State of M.P.,
reported as 2012(3)MPLJ 534/2012 SCC On Line MP 808, which
has already taken note of the aforesaid Rule 48, and it has already
been held that it is necessary for a person, who has filed a criminal
revision against an order of conviction by the District Appellate
Court, to surrender before the District Appellate Court, before
filing the criminal revision in the High Court.
4. To understand the controversy, it is necessary to refer to the
order dated 20.2.2024, passed in the case of Sanjay Nagayach
(supra), the same reads as under:-
"Applicant has filed revision against judgment
dated 06.02.2024 passed by Additional Sessions
Judge Pawai District Panna in Criminal Appeal
No.09/2018 by which sentence of applicant has
been enhanced.
2. Learned Senior Advocate appearing for the
applicant submitted that notice is required to the
applicant before enhancing the sentence. Notice
of appeal and notice of enhancement of sentence
cannot be said to be same thing. In this case, no
notice has been issued. Substantial question of
law has been raised by the applicant in this
revision for consideration. It is also argued on
behalf of applicant that surrendering of applicant
is not necessary while preferring criminal
revision before this Court. Relying on section
397 of the Code of Criminal Procedure, 1973,
learned Senior Advocate submitted that if Court
is satisfied regarding impropriety or illegality in
the proceedings and call for the records for
examination then Court may direct execution of
sentence or order be suspended, and if applicant
is in confinement, he may be released on bail.
There is no bar under Section 397 for not
entertaining the application until accused is in
confinement. Reliance is placed on the order
passed by Madras High Court in case of
Easwaramurthy Vs. N. Krishnaswamy reported
in 2006 SCC Online Mad 1231. Relevant
paragraphs is quoted as under:-
The words "direct that the execution of
any sentence or order be suspended"
have to be read dis-conjuctively from
the words and if the accused is in
confinement that he be released on bail
or on his bond pending the examination
of the record. Suspension of the
execution of any sentence or order
postulates that the petitioner is not in
confinement. This Section gives
jurisdiction to the revisional Court to
suspend sentence even though the
petitioner is not in confinement. The
question of releasing Him on bail arises
only when he is in confinement.
Therefore, when the accused in
confinement makes an application for
suspension of sentence on order, the
Court should not, only order suspension
of the sentence or order but order his
release on bail also. Not so, when he is
not in confinement. This Section clearly
recognizes the difference between a
case where an accused is in confinement
and when not in confinement. Thus, it
will not be proper for the revisional
Court to insist upon an accused to be
remanded to confinement before his
sentence can be suspended, for, that will
be acting against the dear and express
provisions contained in Section 397(1)
of the Code, quoted above, enabling the
revisional Court to exercise the twin
jurisdiction vested in it in cases where
the accused is in confinement and not in
confinement. The matter becomes clear
when the other sections of the Code are
also considered....
8......the revisional Court need not insist
upon the confinement of the accused
before ordering suspension of sentence
or order passed against him. If the
accused is in confinement, the
revisional Court will have to direct his
release on bail; if he is not in
confinement, the revisional Court need
only suspend the execution of the
sentence or order, either on the bond
already executed or as directed by the
revisional Court. Since the relevant
provisions of the Code have clearly
delineated the situation where the
accusers presence is necessary, and
since Section 397 is silent about the
custody or confinement of the accused,
the revisional Court need not insist upon
bringing the accused to confinement
before exercising the powers Under
Section 397(1) of the Code."
6. In view of the abovesaid decision of
the Hon'ble Supreme Court as well as
the decision rendered by his Lordship
Justice Khalid (as he then was), it is
well settled that in respect of the
revision against conviction and
sentence, for granting the relief of
suspension of sentence, the accused
need not surrender and undergo
confinement and filing revision without
surrendering and confinement is well
within the power contemplated Under
Section 397(1) of Cr.P.C. as Section
397(1) Cr.P.C. itself is very clear that
there Is absolutely no ambiguity as the
reading of the words "direct that
execution of any sentence or order be
suspended."
3. Further reliance is placed on the order passed by Kerala High
Court in case of Ibrahim Vs. State of Kerla reported in 1979 SCC
Online Ker 140. Relevant paragraphs is quoted as under:-
5. The jurisdiction of the appellate Court for
suspension of sentence pending appeal is provided
in S. 389 of the Code. For an appreciation of the
question involved, S. 389(1) and (3) of the Code
have to be read carefully. The headnote of S. 389
is "Suspension of sentence pending the appeal;
release of appellant on bail". From this headnote
itself it is clear that the code recognises the clear
distinction between suspension of sentence and
release on bail. In other words, it is not always
necessary that suspension of sentence should be
followed by release of the accused on bail, the
release of the accused on bail becoming necessary
only when the accused is in confinement. S.
389(1) and (3) read:
"(1) Pending any appeal by a convicted person, the
Appellate Court may, for reasons to be recorded
by it in writing, order that the execution of the
sentence or order appealed against be suspended
and, also, if be is in confinement, that he be
released on bail, or on his own bond.
x x x x
(3) Where the convicted person satisfies the Court
by which he is convicted that he intends to present
an appeal, the Court shall,--
(i) where such person, being on bail, is sentenced
to imprisonment for a term not exceeding three
years; or
(ii) where the offence of which such person has
been convicted is a bailable one, and he is on bail,
7. S. 389(1) read above, confers two powers on the
appellate Court: to suspend the sentence and
release the accused on bail, if he is in confinement.
S. 389(3) enables the convicting Court, in cases of
conviction both under bailable and non-bailable
offences, contrary to what was contained in S.
426(2)(A), of the old Code, to direct the person
convicted to be released on bail; on condition that
if he is convicted, the sentence should not exceed
a term of three years. Thus, S. 389(1) enables the
appellate Court to suspend the sentence or release
the accused on bail, while S. 389(3) enables the
convicting Court to release an accused on bail
even after conviction. None of the above-said
sections make it obligatory on the part of the
appellate Court to insist upon the accused to be
present to receive judgment and none of the
provisions require the revisional Court to insist
upon the confinement of the accused before
suspending the execution of the sentence or order.
9. I should not be understood to hold that under no
circumstances can a revisional Court insist upon
the attendance of an accused or his surrender to his
bail before sentence is suspended. In cases where
the appellate Court after pronouncing judgment
directs that the accused's bail bonds are cancelled,
the accused has necessarily to surrender to his bail
before he can obtain an order of suspension of his
sentence, from the revisional Court. And in so
doing, the revisional Court has necessarily to
release the petitioner on bail in addition to
suspending the sentence passed against him;
which means that if there is no direction by the
appellate Court for cancellation of the bail bonds,
there is no necessity to release the accused on bail,
because there is no need for him to surrender to
his bail. Since S. 397 visualises exercise of dual
powers by the revisional Court, to suspend the
sentence and to release the accused on bail, it
presupposes the fact that in one case, the accused
is not in confinement while in the other he is in
confinement. It is not as though the revisional
Court has no powers to get the presence of the
accused at any time. Under S. 401 the High Court
has all the powers that the Court of Appeal can
exercise under Ss. 386, 389, 390 and 391. The
High Court is enabled, in an appeal against
acquittal, by S. 390 of the Code to issue a warrant
directing that the accused be arrested and brought
before it or any subordinate Court and the Court
before which he is brought can commit him to
prison till the disposal of the appeal. Where an
accused is acquitted, his bail bonds are
automatically cancelled. The High Court can in
appropriate cases resort to S. 390 of the Code. In
an appeal against acquittal, the accused need not
be brought at all. Since the High Court in revision
exercises all the powers of an appellate Court, it
can in appropriate cases direct the accused to be
brought up or direct him to attend the Court to
hear the judgment. But has it the power under S.
387 of the Code. Among the sections enumerated
in S. 401, S. 387 has been deliberately omitted, for
the good reason that S. 387, deals with subordinate
appellate Courts. The Code does not visualise the
need for the High Court requiring the attendance
of the accused to receive the judgment because
necessary consequences will follow in
enforcement of the bail bond executed by the
accused after the judgment is rendered by the High
Court."
4. After careful scrutiny of Section 397 of Code of
Criminal Procedure and also Rule 48 of Chapter X of M.P.
High Court Rules and Orders, it is clear that there is no
requirement of surrendering before Court and to be
confined or in jail for preferring criminal revision before
High Court. If applicant is not in confinement then also
criminal revision is maintainable before the High Court. If
counsel for applicant is able to point out any impropriety or
illegality in the judgment passed by the Court below then
High Court may exercise its jurisdiction and powers of
revision to call for the records and examine the same. While
passing orders for summoning the records for examination,
High Court may direct execution of sentence or order to be
suspended. Once order of suspension of execution of
sentence or order to suspend judgment of appellate Court is
passed then if accused/applicant is in jail, he is to be
released on bail. If accused is not in jail then Court may
order him to furnish bail bonds for his appearance before
the High Court when required.
5. Applicant has filed an application i.e. I.A. No. 4216/2024
for exemption to surrender. Prima facie, illegality and
impropriety in order is pointed out before the Court. In
view of same, record from the trial Court is summoned. As
held above, there is no requirement to surrender or to
remain in jail for filing revision, therefore, I.A.
No.4216/2024 is dismissed.
6. The applicant shall furnish a personal bond in the sum of
Rs.50,000/- (Rupees fifty thousand only) to the satisfaction
of the trial Court, for his appearance before Registry of this
Court on 26.04.2024 and on further dates as may be fixed
by the Office till final disposal of the case."
(emphasis supplied)
5. Thus, in the aforesaid decision, this court has held that there
is no requirement to surrender or to remain in jail for filing
criminal revision. On the other hand, so far as the judgment passed
by the Gwalior Bench in the case Deepak Sahu (supra) is
concerned, it has been 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. Relevant paras 1,5,6,7,8,9& 10 of
Deepak Sahu (supra) read as under:-
"1. On 19-1-2012 a question arose before this
Court whether this Criminal Revision is
tenable despite the fact that petitioners have
not surrendered before the Court below at the
time of judgment and are still not in custody.
In other words, if the convicted person is not
in custody or has not surrendered after his
conviction and his sentence is not suspended
by Court below, whether revision would be
tenable.
Xxxx
5. In Bihari Prasad (supra) the Apex Court
held in para 3 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."
(emphasis supplied)
6. A bare perusal of this paragraph shows that the Apex
Court opined that there is no requirement in the
Criminal Procedure Code which makes it necessary for
the accused to surrender after the conviction. However,
the Apex Court opined that certain High Courts have
made such provisions in their rules. In Kishore Virvani
(supra) this Court held that undoubtedly there is no
rule which compels the petitioner to surrender before
filing the revision in the High Court. However, a
microscopic reading of this judgment shows that the
relevant provision of High Court Rule was not
specifically brought to the notice of this Court. Rule 48
reads as under:--
"48. 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."
(emphasis supplied).
7. The basic question is whether as per Rule 48
aforesaid, it is obligatory for the person to surrender on
his conviction before filing of the revision.
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."
(emphasis supplied)
6. It is also found that in a subsequent decision in the case of
(Satyanarayan Sharma & Anr. vs. State of M.P.), another
coordinate bench of this court Bench at Gwalior vide its order
dated 08.04.2021, has also followed the judgment in the case of
Deepak Sahu(supra) and has held that it is obligatory for the
petitioners to surrender after their conviction before filing the
revision, and it has also been held that the criminal revision is not
even maintainable if the petitioner has not surrendered and has
dismissed as not maintainable.
7. So far as the effect of non-consideration of the earlier order
passed by a co-ordinate bench, in a decision rendered by a
subsequent co-ordinate bench is concerned, it has been considered
by the full bench of this court in the case of Jabalpur Bus
Operators Association and others Vs. State of M.P and others
reported as 2003(1) MPLJ 513, wherein, it is held as under:-
"9. Having considered the matter with broader
dimensions, we find that various High Courts have
given different opinion on the question involved. Some
hold that in case of conflict between two judgments on
a point of law, later decision should be followed; while
others say that the Court should follow the decision
which is correct and accurate whether it is earlier or
later. There are High Courts which hold that decision of
earlier Bench is binding because of the theory of
binding precedent and Article 141 of the Constitution
of India. There are also decisions which hold that
single Judge differing from another single Judge
decision should refer the case to larger Bench,
otherwise he is bound by it. Decisions which are
rendered without considering the decisions expressing
contrary view have no value as a precedent. But in our
considered opinion, the position may be stated thus--
With regard to the High Court, a single Bench is bound
by the decision of another single Bench. In case, he
does not agree with the view of the other single Bench,
he should refer the matter to the larger Bench.
Similarly, Division Bench is bound by the judgment of
earlier Division Bench. In case, it does not agree with
the view of the earlier Division Bench, it should refer
the matter to larger Bench. In case of conflict between
judgments of two Division Benches of equal strength,
the decision of earlier Division Bench shall be
followed except when it is explained by the latter
Division Bench in which case the decision of latter
Division Bench shall be binding. The decision of larger
Bench is binding on smaller Benches.In case of conflict
between two decisions of the Apex Court, Benches
comprising of equal number of Judges, decision of
earlier Bench is binding unless explained by the latter
Bench of equal strength, in which case the later
decision is binding. Decision of a larger Bench is
binding on smaller Benches. Therefore, the decision of
earlier Division Bench, unless distinguished by latter
Division Bench, is binding on the High Courts and the
subordinate Courts. Similarly, in presence of Division
Bench decisions and larger Bench decisions, the
decisions of larger Bench are binding on the High
Courts and the subordinate Courts. No decision of
Apex Court has been brought to our notice which holds
that in case of conflict between the two decisions by
equal number of Judges, the later decision in binding in
all circumstances, or the High Courts and subordinate
Courts can follow any decision which is found correct
and accurate to the case under consideration. High
Courts and subordinate Courts should lack competence
to interpret decisions of Apex Court since that would
not only defeat what is envisaged under Article 141 of
the Constitution of India but also militate hierarchical
supremacy of Courts. The common thread which runs
through various decisions of Apex Court seems to be
that great value has to be attached to precedent which
has taken the shape of rule being followed by it for the
purpose of consistency and exactness in decisions of
Court, unless the Court can clearly distinguish the
decision put up as a precedent or is per incuriam,
having been rendered without noticing some earlier
precedents with which the Court agrees. Full Bench
decision in Balbir Singh's case (supra) which holds that
if there is conflict of views between the two co-equal
Benches of the Apex Court, the High Court has to
follow the judgment which appears to it to state the law
more elaborately and more accurately and in
conformity with the scheme of the Act, in our
considered opinion, for reasons recorded in the
preceding paragraph of this judgment, does not lay
down the correct law as to application of precedent and
is, therefore, overruled on this point."
(emphasis supplied)
8. Thus, tested on the anvil of the aforesaid dictum of the full
bench of this court, it is apparent in the present case that when the
order dated 20/2/2024 was passed by the Coordinate Bench of this
Court at the Principal Seat, Jabalpur in the case of Sanjay
Nagayach (supra), holding that a person is not required to surrender
or to remain in jail for filing a criminal revision, the attention of the
learned single judge was not drawn to the earlier decision dated
08.04.2021 rendered by the co-ordinate bench of this Court at
Gwalior, and thus, in the absence of the same, the order dated
20/2/2024 passed in CRR.No.729/2024 is rendered per incuriam
and is not binding on this court.
9. This Court also finds that the Supreme Court has also had the
occasion to deal with such an issue of exemption from appearance
in criminal revision, and in the case of Vivek Rai and another Vs.
State of Jharkhand reported as (2015) 12 SCC 86, it has been held
as under:-
"6. We do not find any merit in the challenge to
the validity of the Rule. It is well-known practice
that generally a revision against conviction and
sentence is filed after an appeal is dismissed and
the convicted person is taken into custody in the
Court itself. The object of the Rule is to ensure
that a person who has been convicted by two
courts obeys the law and does not abscond. The
provision cannot thus be held to be arbitrary in
any manner. The provision is to regulate the
procedure of the Court and does not, in any
manner, conflict with the substantive provisions of
CrPC relied upon by the petitioners.
xxxxxxxxx
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."
(emphasis supplied)
10. In such circumstances, this court also finds that although the
finding recorded by the co-ordinate bench in the case of Sanjay
Nagayach (supra) is correct so far as it is held that exemption from
appearance can be granted if prima facie, illegality and impropriety
in order is pointed out before the Court, but the sweeping
observation that a convict is not at all required to surrender while
filing the criminal revision is per incuriam.
11. Thus, it is apparent that although it is not mandatory that a
convict must surrender at the time of filing of Criminal Revision,
but to claim the exemption from the same, he has to demonstrate
the exceptional circumstances as has been held by the Supreme
Court in the aforesaid case of Vivek Rai (supra), and in the
absence of the same, a person cannot claim as a matter of right, that
he is not required to surrender before the District Appellate Court
before filing the criminal revision in the High Court, and since no
such grounds have been raised by the petitioner, this Court is of the
considered opinion that the petitioner is required to surrender
before the District Appellate Court before his criminal revision is
taken up for hearing.
12. Accordingly, the petitioner is directed to surrender before the
District Appellate court within a week's time.
13. List the matter in the week commencing 17.6.2024.
(SUBODH ABHYANKAR)
JUDGE
das
