Madhya Pradesh High Court
Ashok Kumar vs The State Of Madhya Pradesh Through ... on 31 May, 2024
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
CRR No. 2610 of 2024
(ASHOK KUMAR Vs THE STATE OF MADHYA PRADESH THROUGH VARSHA VYAS)
Dated : 31-05-2024
Shri Lokesh Kumar Bhatnagar, learned counsel for the Petitioner .
Shri Surendra Gupta, learned Govt. Advocate for the respondent/State.
Heard on the question of admission.
2. Admit.
3 . Heard on I.A.No.8897/2024, which is an application filed by the
petitioner seeking exemption from surrendering. Also Heard on I.A.
No.8471/2024, an application under Section 397(1) of Cr.P.C for suspension
of sentence and grant of bail to the petitioner has been convicted by 1st Addl.
Sessions Judge, Mahidpur in CRA.No.10/2024 vide judgment dated
16.05.2024, whereby conforming the order of JMFC dated 27.12.2023 in
Criminal Case No.277/2016 for commission of offence punishable under
Section 59 of Food Safety and Standard Act, 2006 and Rule 2011 for 3 months
R.I. with fine of Rs.5000/- and in case of default of payment of fine amount, 1
month's additional R.I.
5. Learned counsel for the petitioner submits that since the petitioner is
suffering from illness therefore, it can be treated as an exception case, petitioner
be exempted from surrendering before the trial court and his application for
suspension of sentence be allowed. He placed reliance upon the order dated
23.7.2019 passed by the coordinate Bench of this court in the case of Smt.
Lata vs. Manjul wherein the contention has been raised by the learned counsel
for the petitioner placing reliance upon the judgment of the Apex court in the
case of Vivek Rai & Anr. vs. High Court of Jharkhand , (2015) 12 SCC 86,
in light of the aforesaid judgment it was submitted 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 along with revision
memo while interpretating the said Rule. In support of his contentions, learned
counsel relied upon the judgment dated 14.12.2023 passed by Hon'ble Supreme
Court in the case of case of Manik Hiru Jhangiani vs. State of M.P.
reported as 2023 INSC 1078 (Cr.A. No.3864/2023) so also the judgment
passed by Co-ordinate Bench of this Court in the case of Suresh Sharma &
Anr. Vs. State of Madhya Pradesh reported in 2024(1) FAC 291.
6. 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.
7. In light of the aforesaid, it is prayed that petitioner may be exempted
from surrendering before the trial court as he is suffering from disease of which
the related documents are available on record and, therefore, looking to his
health and condition his case be treated as an exceptional case and he be
exempted from surrendering before the trial court and application for
suspension of jail sentence of the petitioner be allowed.
8. He further relied on the order passed by the High Court of Judicature
a t Bombay, Bench Aurangabad passed in Criminal Case No.42/2019 in the
matter of Ramesh Murlidhar Sharma vs. State of Maharashtra & Anr.
9. Chapter X of Section 48 of the High Court of M.P. Rules, 2008 read
thus :-
"4 8 . 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 the
Cr.P.C."
A n application under Section 389 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."
1 0 . A s per the rules which are framed by Jharkhand High Court Rule
159, are also requires surrender of the accused before the court below.
11. Considering the aforesaid Rules, the Hon'ble Supreme Court in Vivek
Rai (supra) in para 10 and 11 has held 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 exception
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."
12. 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.
13. The present case is related to the offence under Section 59 of Food
Safety and Standard Act, 2006 and the petitioner is suffering from disease,
document of which are available on record hence 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.
14. Thus, in the facts and circumstances of the case, without expressing
any opinion on merits of the case, the application I.A.Nos.8897/2024 and
8471/2024 stand allowed. It is directed that subject to furnishing personal
bond of Rs.50,000/ - with one solvent surety in the like amount to the
satisfaction of the trial court for his appearance before the Registry of this
Court on 12.08.2024 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 shall remain suspended, till the final disposal of this revision, subject
to complying the condition mentioned above.
1 6 . A copy of this order be sent to the Court concerned for it's
compliance.
17. Let record of the courts below be requisitioned.
(PREM NARAYAN SINGH)
JUDGE
sumathi
