Rajasthan High Court

Smt. Anita Nathawat W/O Sh. Arjun ... vs State Of Rajasthan on 5 March, 2024

Author: Praveer Bhatnagar

Bench: Praveer Bhatnagar

[2024:RJ-JP:11449]

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR

       S.B. Criminal Suspension of Sentence (Bail) Application
                                 No.529/2023

                                         In

             S.B. Criminal Revision Petition No. 1771/2023

Smt. Anita Nathawat W/o Sh. Arjun Nathawat, R/o House No. 15,
Karni Vihar, B, In Front Of Kids Public School, Behind Khandelwal
School, Road No. 17, Vishwakarma Industrial Area, Jaipur.
                                                                     ----Petitioner
                                     Versus
1.       State Of Rajasthan, Through Pp
2.       Ramavtar Gupta S/o Sh. Ramkalyan Gupta, R/o Plot No. 5,
         Near Lata Cinema, Kalwar Road, Jaipur.
                                                                  ----Respondents

For Petitioner(s) : Mr. Achintya Kaushik For Respondent(s) : Mr. Mahendra Meena-PP

HON'BLE MR. JUSTICE PRAVEER BHATNAGAR

Order

05/03/2024

1. The matter comes upon an application for overruling the

defect pointed out by the Registry. Registry has pointed out the

following defects:-

" (I) It is time barred by 5293 days and an application under

Section 5 of the Limitation Act has been filed.

(ii) Certificate under Rule 311(3) of RHC Rules is not filed.

(iii) Affidavit in support of CMCR not attested by the oath

commissioner."

2. Learned counsel for the petitioner submits that compromise

have been arrived at between the parties on 25.10.2023 and as

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per the said compromise, petitioner has paid the entire amount of

Rs.2,10,000/- to the respondent No.2-Ramavtar Gupta s/o Sh.

Ramkalyan Gupta.

3. He further submits that in view of the fact that parties have

entered into compromise. The defect pointed out by the Registry

for not annexing the certificate under Section 313(3) of the

Rajasthan High Court Rules for condoning the delay of 5293 days

may be overruled and application for suspending the sentence of

the petitioner may be allowed.

4. Learned counsel appearing on behalf of Ramavtar Gupta

accepts that parties have arrived at compromise and respondent

No.2 has no objection, if the sentence of petitioner is suspended.

5. It is admitted position that the petitioner has not surrendered

before the concerned trial Court.

6. The petitioner was convicted and sentenced by the learned

Additional Chief Judicial Magistrate No.8, Jaipur City vide impugned

judgment dated 02.12.2008 and in appeal the conviction of

petitioner under Section 138 of the NI Act was maintained and

petitioner was sentenced as under:-

Section 138 of N.I. Act:

Six months' simple imprisonment along with fine of Rs.2,10,000/-. He was also directed to compensate the complainant by paying Rs.2,10,000/-.

7. Rule 311(3) of the RHC Rules reads as under:-

"(3) In a case in which a sentence of imprisonment has been awarded, the petition of appeal or the application for revision or an application under Section 561 A Criminal Procedure Code shall also contain a certificate signed by the Advocate for the appellant or the applicant, as the case may be, stating that the accused was not on bail or that, if he was on bail, he has surrendered to it. In a case in which bail has been granted by the Court appealled from under sub-section (2A) of Section

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426 of the Code of Criminal Procedure, the fact shall be stated in the petition of appeal."

8. Hon'ble Apex Court in the matter of Vivek Rai & Anr. V. High

Court of Jharkhand through Registrar General: (2015) 12 SCC 86

while interpreting Rule 159 of the Jharkhand High Court, relied

upon the judgment of K.M. Nanawati V. State of Bombay and held

that:-

"It is well known practice that generally a revision against conviction and sentence is filed against an appeal is dismissed and the convicted person is taken into custody in 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, with the substantive provisions of the Cr.P.C. relied upon by the petitioners."

9. Rule 159 of the Jharkhand High Court is almost pari materia

of the Rule 311 of the RHC Rules. Learned appellate court vide

impugned judgment dated 06.02.2009 has affirmed the judgment

and order of conviction passed b the learned trial court vide

impugned judgment dated 02.12.2008.

10. Undoubtedly, the petitioner did not appear before the

learned trial court and also not annexed the certificate of custody

as provided in Rule 311(3) of the RHC Rules.

11. Hon'ble Apex Court in the matter of Vivek Rai (supra) further

expressed as under:-

"It has not been dispute 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

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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. The law laid down in the matter of Vivek Rai (supra) makes it

clear that inherent power of High Court to exempt the requirement

of surrender in exceptional cases and situations may be acted

upon. It is also clear from the judgment of Vivek Rai (supra) that

grant of such exemption depends upon the nature and

circumstance of each case. Therefore, considering the fact that

parties have arrived at compromise, the defect pointed out by the

Registry regarding non-annexing of certification provided under

Rule 311(3) of RHC Rules is overruled.

13. In the present matter, learned trial court vide impugned

judgment dated 02.12.2008 convicted and sentenced the

petitioner for six months' of simple imprisonment and fine of

Rs.2,10,000/-.

14. Considering the law laid down in the matter of Vivek Rai

(supra) and the fact that petitioner has entered into compromise

with the respondent No.2 and has paid the entire amount of

Rs.2,10,000/- imposed as fine so also looking to the short sentence

awarded by the learned trial Court, I consider it just and proper to

suspend the sentence awarded to the petitioner.

15. Accordingly, the application for suspension of sentence filed

under Section 397 read with Section 401 Cr.P.C. is allowed and it is

ordered that the sentences passed by learned Additional Chief

Judicial Magistrate No.8, Jaipur City, Jaipur in Criminal Application

No.11/2007 vide judgment dated 02.12.2008 as affirmed by

learned Additional Sessions Judge (Fast Track) No.1, Jaipur City,

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Jaipur in Criminal Appeal No.01/2009 vide judgment dated

06.02.2009 against the petitioner Smt. Anita Nathawat w/o Sh.

Arjun Nathawat, shall remain suspended till final disposal of the

aforesaid revision and she shall be released on bail, provided she

executes a personal bond in the sum of Rs.50,000/- with two

sureties of Rs.25,000/- each to the satisfaction of the learned trial

Judge for her appearance in this Court on 08.04.2024 and

whenever ordered to do so, till the disposal of the revision on the

conditions indicated below:-

1. That he/she/they will appear before the trial Court in the month of January of every year till the revision is decided.

2. That if the applicant changes the place of residence, he/she/they will give in writing his/her/their changed address to the trial Court as well as to the counsel in the High Court.

3. Similarly, if the sureties change their address(s), they will give in writing their changed address to the trial Court.

16. The learned trial Court shall keep the record of attendance of

the accused-applicant in a separate file. Such file be registered as

Criminal Misc. Case related to original case in which the accused-

applicant was tried and convicted. A copy of this order shall also

be placed in that file for ready reference. Criminal Misc. file shall

not be taken into account for statistical purpose relating to

pendency and disposal of cases in the trial court. In case the said

accused-applicant does not appear before the trial Court, the

learned trial Judge shall report the matter to the High Court for

cancellation of bail.

(PRAVEER BHATNAGAR),J

297-Rahul Joshi