1. On 19.1.2012 a question arose before this Court whether this criminal Revision is tenable despite the fact that petitioner have not surrendered before the Court below at the time of judgment and are still not in custody. In other words, if the convicted person is not in custody or has not surrendered after his conviction and his sentence is not suspended by Court below, whether revision would be tenable.

2. Shri Rajesh Shukla, learned counsel for the petitioners by placing reliance on the language of section 397 of CrPC and judgment of Apex Court in (2001) 10 SCC 346 (Bihari Prasad Singh v. State of Bihar and another) submits that there is no prohibition/requirement under the CrPC which compels the accused to surrender before of filing revision. He also placed reliance on a judgment of this Court reported in 2009 (Cr.L.R.) M.P. 801 (Kishore Virvani v. V.N. Gangrade). On the basis of these judgments, the learned counsel submits that there is no compulsion and requirement to surrender after conviction for entertaining the criminal revision.

3. Per contra, Mrs. Sangeeta Pachauri, learned P.P. and Shri V.K. Saxena, learned Senior Advocate for the complainant submit that Chapter 10, Rule 48 of High Court of M.P. Rules, 2008 makes it obligatory for the accused to surrender and only then revision would be tenable.

4. I have heared the learned counsel for the parties at length.

5. In Bihari Prasad (supra) the apex Court held in para 3 as under :-

“3.Under the provisions of the Criminal Procedure Code, 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 Rules. 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. (emphasis supplied).

6. A bare perusal of this paragraph shows that the apex Court opined that there is no requirement in the CrPC which makes it necessary for the accused to surrender after the conviction. However, the apex Court opined that certain High Courts have made such provisions in their rules. In Kishore Virvani (supra) this Court held that undoubtedly there is no rule which compels the petitioner to surrender before filing the revision in the High Court. However, a microscopic reading of this judgment shows that the relevant provision of High Court Rules was not specifically brought to the notice of this Court. Rule 48 reads as under :-

“48. A memorandum of appeal or revision petition against conviction, except in cases where the sentence has been suspended by the Court below, shall contain a declaration to the effect that the convicted person is in custody or has surrendered after the conviction.”

(emphasis supplied).

7. The basic question is whether as per Rule 48 aforesaid, it is obligatory for the person to surrender on his conviction before filing of the revision.

8. In the considered opinion of this Court, the language employed in Rule 48 makes it crystal clear that a declaration is mandatory for the accused to the effect that he is in custody or has surrendered after the conviction. The only exception provided in the rule is where the sentence has been suspended by the Court below. In other words, except in cases where a sentence was suspended by the Court below itself, in all other cases there has to be a declaration to the effect that the convicted person is in custody or has surrendered after the conviction. Thus, the intention of rule makers is unambiguous and clear regarding giving of such declaration. Needless to mention that an accused can give such declaration only if he is in custody or surrendered after the conviction. Thus, undoubtedly, the intention of rule is that one has to surrender after conviction or should be in custody except in those cases where sentence has been suspended by the Court. The word “shall” is used to mak