Judgment:
CRL.REV.P.299/2017 * % + MANISH KUMAR THE STATE GNCT OF DELHI & ORS. versus IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on:
08. 05.2017 Delivered on:
31. 05.2017 ........ Petitioner
........ RESPONDENTS
Advocates who appeared in this case: For the... Petitioner
For the Respondent CORAM:-
"HON’BLE MR JUSTICE ASHUTOSH KUMAR : Mr.Kuldeep Kumar. : Mr.Arun Kr.Sharma, APP. ORDER ASHUTOSH KUMAR, J CRL. M.A. 6609/2017 Exemption allowed subject to all just exceptions. Application stands disposed of. CRL.REV.P.299/2017 & Crl.M.(Bail) 717/2017 1. The present revision petition is directed against the concurrent judgment and orders dated 27.04.2016 and 25.05.2016 passed by the learned Trial Court in CC No.4035/2014 and the judgment dated 31.03.2017 passed by the learned ASJ-04, South-East, Saket Courts, in CA No.56/2016 whereby the petitioner has been convicted under section 138 of the Negotiable Instruments Act, 1881 and has been sentenced to CRL.REV.P.299/2017 Page 1 of 7 undergo SI for one year, a fine of Rs.8.5 lakhs and in default to suffer SI for six months, which was affirmed and upheld by the appellate judgment respectively.
2. The aforesaid matter came up for hearing on 24.04.2017 when it was submitted on behalf of the petitioner that under section 397 of the Cr.P.C., it was not necessary for the petitioner to have surrendered after the judgment passed in appeal upholding his conviction, for maintaining the present revision petition. The matter was posted on 08.05.2017 for consideration over the aforesaid issue. Thereafter, the matter was listed on 08.05.2017 when the order over the issue was reserved.
3. It is necessary to refer to the provision of section 397 of the Code of Criminal Procedure which deals with the provision of revision before a High Court or any Sessions Court.
4. Section 397 of the Cr.P.C. reads as hereunder: “397. Calling for records to exercise powers of revision. (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order,- recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation.- All Magistrates whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub- section and of section 398. CRL.REV.P.299/2017 Page 2 of 7 5. (2) The powers of revision conferred by sub- section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.” The plain reading of the section indicates that there could be suspension of the sentence on the revision being admitted and if an accused is in confinement, he could be released on bail during the pendency of the revision petition. This obviously means that only if the revisionist is in jail then he would be released on bail but even while he has not surrendered pursuant to the two concurrent judgments, the revisional Court could direct for the suspension of the execution of any sentence or order. This obviously would mean that the petition of revision is maintainable even if the petitioner has not surrendered pursuant to the judgment of conviction. Whether the sentence or order would be suspended or not would depend upon the decision of the revisional Court but so far as the maintainability of the petition is concerned, it cannot be said to be dependent on the revisionist/petitioner surrendering before preferring the revision petition.
6. In Bihari Prasad Singh vs. State of Bihar:
2000. (10) SCC346 the issue before the Supreme Court was whether the High Court, while exercising its revisional jurisdiction can refuse to hear or entertain the matter on the ground that the accused has not surrendered. In the aforesaid case, it was held that under the provisions of section 397 of the Cr.P.C., there is no such requirement though many High Courts in the CRL.REV.P.299/2017 Page 3 of 7 country have made such provision in the respective rules of the High Court.
7. The aforesaid case arose out of a judgment from Patna High Court and therefore, the Supreme Court was of the view that in the event of no such corresponding rules in Patna High Court Rules being available, the High Court was not justified in rejecting the application for revision solely on the ground that the accused has not surrendered.
8. With respect to the same question of law namely whether a revisionist is required to surrender before his petition is entertained, in Ibrahim Kannu vs. State of Kerala:
1979. KLT857 it was held that the words “direct that the execution of any sentence or order be suspended” have to be read disjunctively from the words “and if the accused is in confinement that he be released on bail or on his bond pending examination of the accused”. The suspension of execution of any sentence or order postulates that the petitioner is not in confinement. Thus it was held in the aforesaid case that a revisional Court could suspend the sentence even though the petitioner is not in confinement. It was further held that any insistence by the revisional Court to insist upon such surrender would be against the express provision contained in the section 397(1) of Code.
9. In M Senthil Kumar vs. S. Periyasamy:
2016. LawSuit(Mad) 104: it has been held as follows: “16. As regards the relief of 'suspension of sentence', it is to be relevantly pointed out that in respect of Revision against the conviction, an accused need not surrender and undergo confinement for seeking the relief of suspension of sentence pending disposal of the CRL.REV.P.299/2017 Page 4 of 7 Criminal Revision. However, the Revisional Court, may decline to exercise power under Section 397 (1) of Cr.P.C to suspend the sentence impose on the accused, considering the merits of each case in respect of the seriousness and gravity of offence and also the incarceration of the accused coupled with quashing materials available on record against the accused as per the decision Markandan vs. Inspector of Police, Deevattipatti Police Station, Salem reported in 2007(1) MLJ(Crl.) 210(Mad).” 10. The Rajasthan High Court (Jaipur) bench in Vishnu Teli vs. State of Rajasthan & Anr.:
2010. LawSuit (Raj) 1466, has held that a distinction has to be made between “presentability of a petition” and the “maintainability of a petition”. Presentability of the petition deals with the “acceptability” of a petition by the registry. In case there are any defects in the body of the petition, or in the paper book, the registry is empowered to point out the “defect” and claim that because of the “defect”, the petition cannot be accepted. Quite differently “maintainability” of a petition deals with the issue as to whether the petition could be heard under the law or not. It was further held by the bench as follows: “The words “if he was on bail, he has surrendered to it” cannot be stretched to the point that these words require that the revisionist/appellant must surrender himself prior to filing his revision or appeal. If these words were interpreted to mean that the appellant or the revisionist must surrender prior to filing the appeal or the revision, such an interpretation would lead to anomalous situations: firstly, in case where the trial Court itself has suspended the sentence for a limited period, and in case the appellant or the revisionist were to file the appeal or the revision petition during the said CRL.REV.P.299/2017 Page 5 of 7 the sentence stands suspended, period, it would be an anomalous situation to insist that although the appellant/revisionist must surrender. Such a situation would be quixotic for while a part of the judiciary suspends the sentence, the other part of the judiciary expects the appellant to surrender during the period of suspension of sentence.” 11. The Delhi High Court Rules unlike the rules of other High Courts, does not have any provision requiring the petitioner to surrender before a revision petition could be maintained. Had there been any provision in the Delhi High Court rules requiring a person to surrender before preferring revision petition, the only object behind the same would have had been to ensure that if he has been convicted by two concurrent judgments of conviction, he must obey the law and surrender. This would also be for the purposes of preventing the person from absconding from the process of law. But in the absence of any such rules, it would be difficult to insist for the surrender of the revisionist/petitioner before taking up his case.
12. As such, the revision is maintainable.
13. However, whether any order is required to be passed thereafter would be dependent upon the merits of the petition.
14. Since the matter was adjourned and the order with respect to the maintainability of the petition was reserved, it is held that the petition is maintainable even in the absence of the revisionist/petitioner having surrendered pursuant to the appellate judgment.
15. But for any other order to be passed, there would be a requirement of hearing of the revision petition. CRL.REV.P.299/2017 Page 6 of 7 16. Hence, the case is directed to be listed on 25.07.2017. MAY31 2017/ab ASHUTOSH KUMAR, J CRL.REV.P.299/2017 Page 7 of 7