Madhya Pradesh High Court
Gurmit Singh Saini vs Nirnjan Singh on 9 July, 2025
1 CRR-5126-2019
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRR No. 5126 of 2019
(GURMIT SINGH SAINI Vs NIRNJAN SINGH )
&
CRR No. 2714 of 2024
(GURMIT SINGH SAINI Vs NIRNJAN SINGH )
Dated : 09-07-2025
Shri Sankalp Kochar - Advocate for the applicant in
Cr.R.No.2714/2024.
Shri Laxmi Narayan Sakle - Advocate for the applicant in
Cr.R.No.5126/2019.
Shri Ashley Johnmathew - Advocate for the respondent
in Cr.R.No.5126/2019.
Heard on I.A.Nos.17167/2025 & 16138/2025 ,which are
applications for exemption from surrender before the authorities.
2. Learned counsel for the applicants have submitted that
maintainability of revision, it is not mandatory for the applicant to
surrender before the Court as per Rule 48 Chapter X of the M.P. High
Court Rules, 2008 and the Court can consider the exemption application,
in case where it is necessary, in the interest of justice and grant
exemption to the applicant from surrendering.
3. Learned counsel Shri Sankalp Kochar has submitted that as per
the judgment of this in the case of Sanjay Nagayach Vs. State of Madhya
Pradesh passed in Cr.R. No.729 of 2024 , dated 20.02.2024, this aspect
2 CRR-5126-2019
has been considered by the coordinate Bench of this Court, but the Court
has not considered M.P. High Court Rules.
4. Further, he has relied on the judgment of High Court of Madras
passed in the case of Easwaramurthy Vs. N. Krishnaswamy reported in
2006 SCC OnLine Mad 1231 wherein the Madras High Court in
paragraphs Nos.3, 4, 5 and 6 has discussed this aspects and held that it is
well settled that in respect of revision against conviction and sentence
for granting the relief of suspension of sentence, the accused need not to
be surrendered and undergo confinement as contemplated under Section
397(1) of CrPC as the said section makes itself clear that there is
absolutely no ambiguity as reading the word "direct that execution of
any sentence or order be suspended". But the learned counsel for the
applicant has fairly admitted that in the case interpretation, the rules of
the High Court were not considered and Rules were not in dispute.
Relying upon the judgment of Vivek Rai and another Vs. High Court of
Jharkhand reported in (2005) 12 SCC 86. Learned counsel for the
applicant has submitted that Hon'ble the Apex Court had considered
Rule 159 of High Court Jharkhand Rules, 2001 which is purported as
under:-
''159. to the case of revision under Sections 397 and 401 of the
Code of Criminal Procedure, 1973 arising out of conviction
and sentence a of imprisonment, the petitioner shall state
whether the petition shall be accompanied by a certified copy
of the relevant order. If he has not surrendered the petition
3 CRR-5126-2019
shall be accompanied by an application seeking leave to
surrender within a specified period. On sufficient cause being
shown, the Bench may grant such time and on such conditions
as it thinks and proper. No such revision shall he posted for
admission unless the petitioner has surrendered to custody in
the court concerned."
5. Hon'ble the Apex Court in the said case has also considered the
rules in paragraph-6 of its judgment which is 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 casure 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.
and after discussing the various judgments and Rules of Apex Court
in paragraphs-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 the 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 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
4 CRR-5126-2019
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."
6. Learned counsel for the applicant has fairly submitted that M.P.
High Court Rules were considered by the Supreme Court in the case of
Daulat Singh Vs. State of M.P. passed in SLP (Criminal) Diary
No.20900/2024 vide order dated 30.07.2024 in paragraphs -11 and
12, which are as under:-
''11. If indeed such observation has to be construed as
a proposition of law having been laid down by this Court that
a high court in exercise of its inherent powers may, in
exceptional cases, exempt the requirement of surrender, as
learned counsel would wish us to construe, we find such
proposition to be debatable. Inherent powers of a high court
saved by Section 482 of the Code of Criminal Procedure are
to be exercised to make such orders as may be necessary to
give effect to any order under the Code (emphasis supplied by
us) or to prevent abuse of the process of any court or
otherwise to secure the ends of justice. It could lead to a
travesty of justice if Section 482 of the Code were read in
a manner extending liberty to a convict to urge a high court
to exercise its inherent power to grant exemption from
surrender prior to entertainment of a revision petition, when
there are concurrent findings rendered by two courts of
competent jurisdiction - conviction recorded by the trial court
and affirmance thereof by the appellate court - and
particularly when it is the duty of a high court, even under
Section 482, to give effect to orders passed under the Code.
12. Significantly, the legislature having thought it fit
to introduce a provision enabling a convict to seek benefit
of suspension of sentence pending an appeal did so by
enacting Section 389 of the Code. The Code has no provision
permitting an application to seek exemption from surrender.
We are minded to hold that the omission in the Code with
regard to providing an avenue for a convict suffering a
sentence to seek exemption from surrender, pending a
revision, is a conscious act of the legislature. "
7. Learned counsel for the applicant has further submitted that in
5 CRR-5126-2019
the case of Union Territory of Ladakh and others Vs. Jammu and
Kashmir National Conference and another reported in 2023 LiveLaw
(SC) 749, Hon'ble the Apex Court has observed regarding the law of
precedent and in paragraph-35 has held as under:-
"35. We are seeing before us judgments and orders by High
Courts not deciding cases on the ground that the leading
judgment of this Court on this subject is either referred to a
larger Bench or a review petition relating thereto is pending.
We have also come across examples of High Courts refusing
deference to judgments of this Court on the score that a later
Coordinate Bench has doubted its correctness. in this regard,
we lay down the position in law. We make it absolutely clear
that the High Courts will proceed to decide matters on the
basis of the law as it stands. It is not open, unless specifically
directed by this Court, to await an outcome of a reference or a
review petition, as the case may be. It is also not open to a
High Court to refuse to follow a judgment by stating that it
has been doubted by a later Coordinate Bench. In any case,
when faced with conflicting judgments by Benches of equal
strength of this Court, it is the earlier one which is to be
followed by the High Courts, as held by a 5-Judge Bench in
National Insurance Company Limited v Pranay Sethi, (2017)
16 SCC 6805. The High Courts, of course, will do so with
careful regard to the facts and circumstances of the case before
it."
8. Lastly, learned counsel for the applicant has submitted that law
of precedent and the ratio of judgment of Vivek Rai (supra) is binding
on this Court.
9. For the comparison of the rule that was discussed by Hon'ble the
Apex Court as stated the Rules of Jharkhand High Court as quoted by
6 CRR-5126-2019
the Apex Court; when any revision petition filed under Section 397/401
of the CrPC arising out of conviction and sentence of imprisonment, the
petitioner shall state whether the petition shall be accompanied by
certified copy of the relevant order. If he has not surrendered, the
petition shall be accompanied by an application seeking leave to
surrender within a specified period. On sufficient cause being shown the
Bench may grant such time and on such condition as it thinks and
proper, no such revision shall be posted for admission unless the petition
has surrendered to custody in the Court concerned.
10. As per the M.P. High Court Rules, 2008, 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.
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."
11. Thus, the material deference in these rules is that in Rule 159
of the Jharkhand of High Court Rules, 2001, the Court has been given
the power on sufficient cause being shown to the Bench to grant such
7 CRR-5126-2019
time and on such condition, as it thinks and proper in the case where the
applicant is not in custody and he seeks time to surrender within a
specific period but in the M.P. High Court Rules, 2008 nowhere this
discretion has been given to the Bench.
12. This is material difference and when there is no power, the
Court cannot use the power not vested by the Rules by itself in the guise
of Section 482 of the CrPC.
13. Further more, Hon'ble the Apex Court in the case of Vivek Rai
(supra) has also considered the validity of the rules and in the same way
the Apex Court has considered the rules of Supreme Court's Rules and in
light of these rules, principle recorded in paragraphs-9 and 10 were laid
down.
14. In paragraph-11, Hon'ble the Apex Court has also held that in
exceptional circumstances, the inherent power of the Court cannot be
taken away by the Rule but it is worth mentioned that Hon'ble the Apex
Court just after holding that has stated that the rule provides for that.
Thus, there is a difference in the Rules of Jharkhand High Court. The
Rules of the High Court of MP are not pari materia as the rules of
Jharkhand High Court.
15. Furthermore, Hon'ble the Apex Court has clearly held that the
inherent power can be used for listing of the case by exempting the
requirement of surrender but in exceptional situation not as a general
rule. This Court is bound by the issue laid down in the case of Vivek Rai
8 CRR-5126-2019
(supra).
16. Shri Laxmi Naryan Sakle, learned counsel for the a the
applicant (in Cr.R.No.5126/2019) has failed to demonstrate that there is
any exceptional circumstances, hence the applicant is directed to
surrender before the trial Court and on submitting the certified copy of
the surrender report and depositing of 15% of the compounding fee as
laid down in the case of Damodar S. Prabhu v. Sayed Babalal H., (2010)
5 SCC 663 before the State Legal Services Authority.
17. Shri Kochar, learned counsel for the applicant has submitted
that the applicant is a Government Servant and if he is sent in judicial
custody, then he will lose his job and has also submitted that this was the
matrimonial dispute and the parties have settled the dispute outside the
Court. Husband has given her lumpsum maintenance amount and the
wife is compounding the matter. They want to live separate. But these
are not such exceptional circumstances, in which the application to
surrender is allowed.
18. Hence, in view of above observations, I.A.Nos.17167/2025 &
16138/2025 are hereby rejected.
19. List on 22.07.2025.
(DEVNARAYAN MISHRA)
JUDGE
VB*
9 CRR-5126-2019
