Judgment:
$~7 * % + IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision:
29. h November, 2018 CRL.REV.P. 629/2014 PRITIKA FASHIONS PVT LTD & ORS ....... Petitioner
s Through: Mr. Khowaja Siddiqui, Adv. versus ....... RESPONDENTS
Through: Mr.Ashish Dutta, APP for the STATE & ORS CORAM: HON'BLE MR. JUSTICE CHANDER SHEKHAR State/R-1 Mr. Ravi Dagar, Adv. for R-2 CHANDER SHEKHAR, J.
(ORAL) CRL.M.A. 33858/2018 1. The petitioner No.2 has moved the present application for exemption from surrendering and granting suspension of sentence during the pendency of the present revision petition.
2. In the present case, the learned Metropolitan Magistrate announced the judgment on 19.2.2014 and passed the order on sentence on 28.2.2014. The relevant portion of the order on sentence dated 28.2.2014 is reproduced below: “the convict No.1 i.e. Pritika Fashions is sentenced to pay fine of Rs. 34,00,000/- as compensation to the complainant u/s 357(3) Cr.P.C. Convict No.2 is sentenced to simple imprisonment of 3 months alongwith fine of Rs. 10,000/-, in default of CRL.REV.P. 629/2014 Page 1 of 12 payment of fine, he shall undergo simple imprisonment of 2 months.” 3. The petitioner No.2 filed an appeal under Section 374 of the Code of Criminal Procedure, 1973 (Cr.P.C.) being Criminal Appeal No.17/2014 against the aforesaid judgment and the Appellate Court, on receipt of the fresh appeal vide order dated 31.3.2014 passed the following order: “Heard. Appeal is admitted. Application for suspension of sentence is allowed for reason stated therein and sentence is suspended during the pendency of the present appeal. The appellant be released on bail on furnishing bail bond/personal bond in the sum of Rs.10,000/- with one local surety of the like amount subject to satisfaction of the concerned trial court. Copy of the order be sent to the concerned court. Put up for arguments on 09.4.2014. In the meantime TCR be summoned for the next date of hearing.” 4. Thereafter, the Appellate Court, vide order dated 29.8.2014 while dismissing the appeal, passed the following order: “Arguments heard. Vide my detailed separate order of even date application u/s 340 cr.p.c. moved by the appellant/accused is CRL.REV.P. 629/2014 Page 2 of 12 dismissed. Vide my detail order of even date, the present appeal is devoid of merits and same is hereby dismissed. TCR if any be sent back to Ld. Trial Court with copy of order for information. File be consigned to record room.” 5. The aforesaid proceedings demonstrate that the appeal was dismissed and the learned Additional Sessions Judge upheld the conviction and the sentence of the appellant awarded by the learned Metropolitan Magistrate vide orders dated 19.2.2014 and 28.2.2014. The judgment and order dated 29.8.2014 clearly demonstrate that the petitioner No.2 was not taken into custody. Thereafter, the petitioner No.2 filed the present criminal revision petition on 15.9.2014, however, after the judgment dated 29.8.2014 the petitioner No.2 neither surrendered nor any order was passed by this Court for the suspension of order on sentence. Learned counsel for the petitioner No.2 submitted that the petitioner No.2 filed an application CRL.M.(BAIL) 10706/2014 for suspension of order on sentence which was not heard by this Court. However, the order-sheet of this case demonstrates that the aforesaid application was not pressed by the petitioner No.2 at any point of time. But the fact remains that whether the application was pressed or not pressed, this Court never passed any order for the suspension of sentence at any point of time. CRL.REV.P. 629/2014 Page 3 of 12 6. In the case titled as Krishan Kumar Jain v. State of Punjab in CRM-34325-2015 in CRR-3960-2015 (O&M), it is held by the Punjab and Haryana High Court as under: “...Plea has been opposed by the State counsel. He has referred to provision of Section 353 (6) Cr.P.C. According to him, in terms of said provision, if an accused is not in custody, he would be required by the Court to attend to hear the judgment pronounced, except when his personal attendance during the trial has been dispensed with and the sentence is of fine only or he is acquitted. According to him, at the time of judgment to be delivered by the appellate court, provision of Section 353 (6) Cr.P.C. would apply as envisaged by Section 387 Cr.P.C. In the instant case petitioner was required to be present by the appellate court, but he absented himself. Efforts were made by the court to secure his presence and nonbailable warrants were also issued but the petitioner failed to appear. Under the circumstances, I do not find any ground for suspending the sentence awarded to the applicant. Even otherwise, the plea that convict can resort to remedy of revision without any necessity to surrender in compliance with the judgment delivered by the appellate court, is unacceptable. Observations of the Single Bench of Bombay High Court (in case reported as Moinoddin, S/O Khodboddin vs State of Maharashtra, CRL.REV.P. 629/2014 Page 4 of 12 (2003) IILLJ1040Bom.) are relevant. Same reads as under:-
"“14. Reading proviso to Section 387 of the Criminal Procedure Code, it may be argued that, it is not mandatory upon the appellate Court to direct the accused to be brought up or required to attend, to hear the judgment delivered because of the words "shall not" incorporated in the proviso. However, this proviso is required to be read in the light of Section 387 read with Sections 353 (5) and 353 (6). Provisions regarding the judgment, as contained in Chapter XXVII of the Criminal Procedure Code are applicable to the judgment of subordinate appellate Court and in Section 387 also the words used are "shall apply". The proviso to Section 387, therefore, shall stand controlled by the provisions contained in Section 353 (5) and 353 (6) and, therefore, the subordinate appellate Court will be obliged to secure the presence of accused/appellant before it for pronouncement of judgment except in the cases wherein the judgment is of acquittal or one of fine only. Once the presence of appellant-accused is secured or the purpose of pronouncement of judgment CRL.REV.P. 629/2014 Page 5 of 12 confirming the conviction with substantive sentence, as observed in the matter Dilip v. State of Maharashtra (supra), the Subordinate Appellate Court would become functus officio and cannot suspend the sentence or grant bail in order to enable the accused to prefer revision before the High Court. The only course available, therefore, would be to execute the order of conviction confirmed by it, leaving the accused to obtain suspension of sentence and bail from the High Court by preferring appropriate revision.” I am in respectful agreement with the observation made in Moinoddin's case (supra). Even Section 397 leaves no room for doubt that while exercising revisional jurisdiction, this court may direct that execution of any sentence or order qua the accused be suspended and the accused if in confinement would be released on bail. Needless to observe that in case sentence remains unexecuted even after being upheld by lower appellate court, there would no occasion for suspending the same. Thus, this court has no hesitation in holding that petitioner, who does not abide by the order of the lower appellate court and fails to surrender, his prayer in revisional jurisdiction for suspension of execution of the CRL.REV.P. 629/2014 Page 6 of 12 sentence would merit outright rejection. Application is, thus, dismissed.” 7. In the matter of Ramesh Kumar Sharma v. Subhash Chand Gupta, Criminal Revision Petition No.1096/2011, the Rajasthan High Court vide order dated 6.9.2011 held as under: “(4).....According to Section 389(3) CrPC, at the time of pronouncement of judgment by the trial court, the accused may apply for suspension of sentence, showing his intention to appeal before the appellate court. The trial court may suspend the sentence for a period of one month for filing the appeal. However, as per Section 374 CrPC, the appellate court may exercise the power under Section 389 CrPC to suspend the sentence during the pendency of appeal. After passing of the judgment in appeal, for filing revision petition before the High Court under Section 397 read with Section 401 CrPC, the appellate court is not given discretion to exercise the power as provided under Section 389 (3) CrPC, therefore, the appellate court has no option except to take the accused in custody and send him to jail to serve the sentence. Admittedly, in the present case, the accused was not present before the Appellate Court at the time of pronouncement of judgment and he did not surrender as per requirement of law, therefore, in absence of his surrender the present revision petition is not CRL.REV.P. 629/2014 Page 7 of 12 maintainable.” 8. Further, in the matter of Mohammad Yusuf v. State of Rajasthan through P.P., Criminal Revision Petition No.1148/2010, the Rajasthan High Court reiterated the principles followed in Ramesh Kumar (supra) and vide order dated 12.9.2011 held as under: “(4).......As is clear from sub-section (3) of Section 389 CrPC, at the time of pronouncement of judgment by the trial court, the accused may apply for suspension of sentence, showing his intention to appeal before the appellate court. The trial court may suspend the sentence for a period of one month for filing the appeal. After filing of the appeal under Section 374 CrPC, appellate court may exercise the power under Section 389 CrPC to suspend the sentence during the pendency of appeal, but while passing the judgment in appeal, the appellate court is not given discretion to exercise the power as provided under Section 389 (3) CrPC, therefore, the appellate court has no option but to take the accused in custody and send him to jail to serve the sentence. Admittedly, in the present case, the petitioner (accused) was not present before the appellate court at the time of pronouncement of judgment nor did he surrender as per requirement of law, therefore, in absence of his surrender, present revision petition is not maintainable. In this view of the matter, the petitioner had no right to file this revision CRL.REV.P. 629/2014 Page 8 of 12 against the order of Appellate Court. Otherwise also, there being concurrent findings arrived at by two courts below, no interference by this court in its revisional jurisdiction is called for. Hence the revision deserves to be dismissed and is hereby dismissed. The application seeking suspension of sentence, also stands disposed.” 9. In the matter of Satish Tandon vs State Of Punjab And Another, CRR-417-2014 (O&M), the Punjab & Haryana High Court vide order dated 6.2.2014 held as under: “(5).......There is no doubt that this Court can suspend the execution of the sentence as per provision contained in Section 401, Cr.P.C., while hearing criminal revision petition, but that has to be done only when the petitioner is behind the bars.” 10. The Supreme Court in Vivek Rai and Ors. v. High Court of Jharkhand and Ors., AIR2015SC1088 held that it is a well known practice and procedure as well as rule or ordinance that generally a revision petition is filed after appeal is dismissed and the convicted person is taken in 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 practice and the provision cannot, thus, be held to be arbitrary in any manner. The practice and provision is to regulate the procedure of the Court and does not, in any manner, conflict with the substantive provisions of the Code of Criminal Procedure. CRL.REV.P. 629/2014 Page 9 of 12 11. The only object behind a person being taken into custody after dismissal of the appeal would have been to ensure that if the person has been convicted by two concurrent judgments of conviction, he must obey the rule and surrender. This should also be for the purposes of preventing the person from absconding from the process of law.
12. Learned counsel for the petitioner No.2 further submitted that the application for the suspension of the order on sentence could not be pressed due to negligence of earlier counsel. Though this plea has not been raised by the petitioner No.2 in his application but seems to have been raised by the learned counsel for the petitioner No.2 as an afterthought to blame the earlier counsel to create a cause for not pressing the application for the suspension of the order on sentence. I am not convinced with this submission of the learned counsel for the petitioner No.2. It is seen that it has become a habit to blame the earlier counsels without any basis, though the complaints against earlier counsels in some cases may be true but to substantiate such complaints, there should be some action or material from the side of the petitioner on the record. The petitioner No.2 in this case has not complained against the earlier counsel to the Bar Council of Delhi or Bar Council of India in this regard at any point of time. The submissions made are required to be nipped in the bud. It is also not the case of the petitioner No.2 that he had at any point of time asked his counsel about the suspension of the sentence. Even otherwise, this submission of the petitioner No.2 has no bearing on the merits of the present application in view of the legal position in this regard, as CRL.REV.P. 629/2014 Page 10 of 12 discussed hereinabove. The Metropolitan Magistrate announced the judgment on 19.2.2014 and the order on sentence was passed by him on 28.2.2014. The Appellate Court pronounced the judgment on 29.8.2014. The Appellate Court ought to have passed the necessary orders after the dismissal of the appeal regarding the custody of the appellant. However, after the passing of the judgment on 29.8.2014 neither the petitioner No.2 was taken into custody by the Appellate Court nor he surrendered nor was protected by the order of any Court from his arrest and was roaming free despite having been convicted by two concurrent judgments of conviction. The Court cannot be helpless in such a situation and allow the convict to make a mockery of the criminal system. The respondent No.2, who filed the complaint against the petitioners under Section 138 of Negotiable Instruments Act, 1881 on 8.5.2013, must be cursing the criminal system finding that neither he has received any money nor the petitioner No.2 was arrested despite being convicted and has also not surrendered without any effective orders of suspension of substantive sentence at present from the High Court or any other Court. Hence, I do not find any merit or ground in the submission of the learned counsel for the petitioner No.2 to allow the application and exempt the petitioner No.2 from surrendering and grant suspension of the sentence during the pendency of the present revision petition at this stage after the passing of the judgment by the Appellate Court on 29.8.2014. Accordingly, the present application is dismissed. CRL.REV.P. 629/2014 Page 11 of 12 CRL.REV.P. 629/2014, CRL.M.(BAIL) 10706/2014 1. Court notice be issued to the respondent No.2 and his counsel, in the interest of justice, returnable on 25.1.2019.
2. The concerned Court of Additional Sessions Judge be informed that the petitioner No.2 had not surrendered and action immediately be initiated against him as per law under intimation to this Court. NOVEMBER29 2018/rk CHANDER SHEKHAR, J CRL.REV.P. 629/2014 Page 12 of 12