Madhya Pradesh High Court
Bharatlal Bhindiya vs Suneel Kumar Tiwari on 23 April, 2025
Author: Anil Verma
Bench: Anil Verma
NEUTRAL CITATION NO. 2025:MPHC-GWL:8953
1 CRR-5605-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 23 rd OF APRIL, 2025
CRIMINAL REVISION No. 5605 of 2024
BHARATLAL BHINDIYA
Versus
SUNEEL KUMAR TIWARI
Appearance:
None for the petitioner.
Shri Hardayesh Kumar Shukla - advocate for the respondent.
ORDER
The matter has been fixed for arguments on maintainability of the petition
but none appeared on behalf of the petitioner today.
Heard learned counsel for the respondent on I.A.No.27224 of 2024 for
dismissing the revision as not maintainable.
From perusal of record, it is apparent that the petitioner has placed reliance
upon the judgment of Hon'ble Apex Court in the case of Daulat Singh Vs. The
state of M.P. dated 30.07.2024 passed in Special Leave to appeal No.20900 of
2024 and on the order dated 29th August, 2024 passed in Cr.Revision No.2490 of
2024 (Danvendra Shukla Vs. The State of M.P.), by coordinate Bench of this
court.
The petitioner has been convicted for commission of offence under Section
138 of the Negotiable Instrument Act and was sentenced to undergo R.I for 06
months and compensation of Rs.5,40,000/- with default stipulation, which was
affirmed by the appellate court.
At the time of passing of judgment by the trial court on 10.08.2024, the
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petitioner remained absent and he did not surrender before the trial court to
undergo jail sentence imposed. He has filed this revision along with the application
for suspension of sentence I.A.No.23926 of 2024, U/s 397(1) of Cr.P.C, without
surrender on the ground that he was ill at the time of passing of impugned
judgment by the courts below. Even the petitioner has not deposited any amount of
compensation before the trial court.
On the other hand, learned counsel for the respondent has contended that
the under Rule 48 of Chapter -X of M.P. High Court Rules, no revision can be
filed unless accused/petitioner is in jail. He has also placed reliance on the order
dated 30.07.2024 passed in SLP (Criminal) Diary No(s).20900/2024 (Daulat
Singh Vs. The State of M.P.) by the Hon'ble Supreme Court and thus has prayed
for dismissal of the Revision Petition.
It is worthwhile to note that despite his conviction the petitioner has not
surrendered to serve the sentence imposed on him. Despite this Court order to
surrender, he did not surrender and moved this revision along with the application
for suspension of sentence, without any application seeking exemption from
surrender.
Before dwelling upon the arguments advanced by the learned counsel for
the petitioner, it would be apposite to refer specific provision contained in Rule
48 of Chapter -X of M.P. High Court Rules, 2008 hereinafter referred to as 2008
Rules.
For ready reference, Rule 48 of 2008 Rules 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
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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
Code of Criminal Procedure, 1973.
An application under Section 389 of the Code of Criminal
Procedure, 1973 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."
A bare perusal of the first part of Rule 48, it is apparent that, it
casts an obligation on the revisionist, in case he has to serve a sentence
upon being convicted and the revision filed by him challenging the
conviction and sentence, to surrender and disclose such fact in the
revision petition. In fact the provision implies that a revision can be
entertained by the High Court at the instance of the convict who has not
otherwise obtained the order of suspension of sentence, to surrender in
terms of the orders of the competent Courts that tried him and dismissed
his appeal.
A Full Bench of this Court in the case of Jabalpur Bus Operators
Association Vs. State of M.P. and Others reported in 2003 (1) MPLJ 513 has held
that, if the earlier decision is not discussed and dealt with in the subsequent
decision by the other Co-ordinate Bench of the High Court, it is the earlier
decision that would prevail. As in the case of Sanjay Nagayach (supra) the case of
Deepak Sahu (supra) has not been discussed and referred the earlier decision on
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the same point in first circumstance, this Court is not bound by the order passed in
Sanjay Nagayach (supra) rather this Court is bound by the order passed by the
earlier decision rendered by the Co-Ordinate Bench of this Court in Deepak Sahu
(supra). Therefore, applicant get no benefits from Sanjay Nagayach (supra) case.
In SLP (Criminal) Diary No(s) 20900/2024 (Daulat Singh Vs. The State of
M.P.) where revision was dismissed by this Court, in which application for
exemption to surrender and revision was dismissed as being not maintainable, in
view of the specific provision contained in Chapter X Rule 8 of High Court of
Madhya Pradesh Rules, Hon'ble Apex Court has held as under:-
"15. We do not, therefore, consider it appropriate to accept as a
sound proposition of law that a High Court, in exercise of its inherent
power, may grant exemption from surrendering in a particular case
despite concurrent findings of conviction oblivious of the duty of giving
effect to orders passed under the Code and/or to prevent abuse of the
process of a Court."
In the case in hand, the petitioner has been convicted for commission for
offence under Section 138 of the NI Act and sentenced as aforesaid. Conviction
and order of sentence passed by the trial court has been affirmed by the appellate
court. The petitioner has challenged the legality, propriety and correctness of the
judgment of conviction and order of sentence passed by the trial court, but at this
stage, merit of the judgment of courts below cannot be considered. As such, I am
of the considered view that the application for grant of bail with prayer of
exemption from surrender is without any rhyme or reason. This Court cannot grant
exemption from surrendering in a case where concurrent findings of conviction
and sentence have been recorded by the trial Court and Appellate Court. It is duty
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of this Court to give effect to the order passed by the Courts and to prevent the
abuse of process of Court.
It is therefore, clear that the present petitioner has neither surrendered before
the trial court nor deposited the compensation amount as imposed by the trial court
and affirmed by the appellate court. Therefore, this revision is not maintainable.
Therefore, I.A.No.27224 of 2024 filed by the respondent for dismissing the
revision as not maintainable, is allowed. The trial court is directed to take all the
necessary steps to take the petitioner in custody for serving remaining part of jail
sentence.
Record of both the courts below be sent back along with a copy of this order.
With the aforesaid, this revision petition stands dismissed.
(ANIL VERMA)
JUDGE
Rks
