JUDGMENT :

MANGESH S. PATIL, J.

1. We have heard the learned advocates and the learned A.P.P. in all these matters.

2. Following question has been referred to us for determination:

“Whether in the absence of a Rule regulating the procedure framed by the High Court for admission or listing the Revision without surrender, the High Court under revisional jurisdiction under Section 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. (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] of the Cr.P.C. shall suspend the sentence without the surrender or arrest of the accused for sending him to jail for the execution of the sentence, as a matter of course?”

Though the question is articulated to appear as one, in fact it raises two issues:

(1) Whether in the absence of Rules the High Court while exercising the revisional jurisdiction under Section 397 of the Code of Criminal Procedure can entertain the revision even when the convict whose appeal against conviction has been dismissed, has not surrendered?

(2) Whether while exercising the revisional jurisdiction under Section 397 of the Code of Criminal Procedure the High Court can suspend the sentence without the accused having surrendered, as a matter of course?

3. Having heard the learned advocates and the learned A.P.P. in our considered view, as far as the first issue is concerned, the decision of the Supreme Court in the matter of Bihari Prasad Singh vs. State of Bihar, (2000) SCC (Cri) 1380 lays down the law and there remains nothing to be decided by this Court. The following observations from Bihari Prasad Singh (supra) are sufficient:

“The only question that requires consideration in the present case is 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. Under the provisions of the Criminal Procedure there is no such requirement though many High Courts in this country have made such provision in the respective rules of the High Court. But it is stated to us that there is no such rule in the Patna High Court. In that view of the matter, the High Court was not justified in rejecting the application for revision solely on the ground that the accused has not surrendered.”

Admittedly, the Bombay High Court has not framed the rules as is contemplated in the matter of Bihari Prasad Singh, therefore, it is well neigh clear that in the absence of the rules the High Court cannot refuse to entertain and decide the revision even when the accused has not surrendered. Consequently, there is no option for the High Court but to entertain a revision in the absence of the rules mandatorily requiring the accused to surrender.

4. The debate essentially revolves around the second issue and is indeed a bit complex one. In order to appreciate