IMPORTANT POINT
No person can be forced to stand surety for accused – It is a voluntary act and a contract.

ORDER

The applicants are seeking suspension of sentence under Section 397 of the Code of Criminal Procedure (Cr.P.C. for short) passed by the learned Judicial Magistrate First Class and confirmed by the learned Additional Sessions Judge (subordinate Appellate Court, for short).

2. The subordinate appellate Court cancelled the bail bonds of the accused and directed them to surrender before the trial Court for the execution of the sentence. Admittedly, soon after the decision of the appeal, the present applicants were not sent to jail under a conviction warrant, nor did the applicant surrender.

3. The learned counsel Mr. S.S. Panale and Mr. K.N. Shermale for the applicants have vehemently argued that Section 397 of the Code of Criminal Procedure thus provides for suspension of sentence, and for suspension of sentence, the accused need not surrender. In other words, they have vehemently argued that for the suspension of the sentence before the High Court, surrender of the applicant is not sine qua non. The tone of their argument is once the Revision under Section 397, Cr.P.C. is preferred, the High Court shall suspend the sentence unless the High Court Rules prescribe the Procedure directing the accused to surrender before the sentence is suspended. To bolster their arguments, they relied on the judgments and orders of this Court passed in Criminal Application No.1238 of 2020 in Criminal Revision Application No.89 of 2020 [Popat Dattatraya Ajabe and Other vs. The State of Maharashtra] dated 3rd August, 2020 and Criminal Application No.2743 of 2019 in Criminal Revision Application No.232 of 2019 dated 12th June 2020. Relying strongly on these Judgments, they claimed that the applicant deserves suspension of sentence and bail till the conclusion of the revision petition.

4. The learned A.P.P. has strongly opposed the applications and raised the following points;

(i) Soon after the conviction, the subordinate appellate Court confirming the conviction shall take the convict into custody and send him to jail under a conviction warrant.

(ii) The Subordinate appellate Court has no jurisdiction to suspend the sentence and continue the bail.

(iii) The subordinate appellate Court has no power to direct the accused to surrender before the trial Court for the execution of the sentence.

(iv) The subordinate appellate Court shall not deliver the Judgment of conviction unless the presence of the accused has been secured before the Judgement is pronounced, except the personal attendance was exempted in an exceptional case.

(v) There was no uniformity in the judgments of subordinate appellate Courts as regards taking the convict into custody for the execution of the sentence soon after confirming the Judgment of conviction.

(vi) The subordinate appellate Courts do not cancel the bail bonds of the accused and discharge the surety after the conclusion of the appeal.

(vii) The convict in each case cannot claim the suspension of sentence under section 397 Cr.P.C. as a matter of course subject to exceptional circumstances.

(viii) The Revisional Court cannot grant bail to the petitioner unless he is behind bars either in the custody of the Magistrate or suffering the sentence.

5. He further argued that in the case at hand, the accused were present in the Court at the time of pronouncing the Judgment and exemption was not granted to them from appearance during the trial. Therefore, the learned subordinate appellate Court was to send them to jail for the execution of the sentence. There is no uniformity in the judgments and orders as regards sending the convict for the execution of the sentence, and different practises are followed throught the State, and that is a disparity. There must be uniformity in the application of the law. Everyone is equal before the law. Not applying the law uniformly is discrimination. Such an illegal practice shall be corrected. Some of the accused who appear honestly before the subordinate appellate Cou