IMPORTANT POINT
An accused can file a revision and seek suspension of sentence without being in confinement, as per sections 397 and 389 of the Code of Criminal Procedure.

JUDGMENT :

(Vishal Dhagat, J.) :

Applicant has filed revision against judgment dated 6-2-2024 passed by Additional Sessions Judge Pawai District Panna in Criminal Appeal No. 09/2018 by which sentence of applicant has been enhanced.

2. Learned Senior Advocate appearing for the applicant submitted that notice is required to the applicant before enhancing the sentence. Notice of appeal and notice of enhancement of sentence cannot be said to be same thing. In this case, no notice has been issued. Substantial question of law has been raised by the applicant in this revision for consideration. It is also argued on behalf of applicant that surrendering of applicant is not necessary while preferring criminal revision before this Court. Relying on section 397 of the Code of Criminal Procedure, 1973, learned Senior Advocate submitted that if Court is satisfied regarding impropriety or illegality in the proceedings and call for the records for examination then Court may direct execution of sentence or order be suspended, and if applicant is in confinement, he may be released on bail. There is no bar under section 397 for not entertaining the application until accused is in confinement. Reliance is placed on the order passed by Madras High Court in case of Easwaramurthy vs. N. Krishnaswamy, reported in 2006 SCC Online Mad 1231. Relevant paragraphs is quoted as under :—

The words “direct that the execution of any sentence or order be suspended” have to be read dis-conjuctively from the words and if the accused is in confinement that he be released on bail or on his bond pending the examination of the record. Suspension of the execution of any sentence or order postulates that the petitioner is not in confinement. This section gives jurisdiction to the revisional Court to suspend sentence even though the petitioner is not in confinement. The question of releasing Him on bail arises only when he is in confinement. Therefore, when the accused in confinement makes an application for suspension of sentence on order, the Court should not, only order suspension of the sentence or order but order his release on bail also. Not so, when he is not in confinement. This section clearly recognizes the difference between a case where an accused is in confinement and when not in confinement. Thus, it will not be proper for the revisional Court to insist upon an accused to be remanded to confinement before his sentence can be suspended, for, that will be acting against the dear and express provisions contained in section 397(1) of the Code, quoted above, enabling the revisional Court to exercise the twin jurisdiction vested in it in cases where the accused is in confinement and not in confinement. The matter becomes clear when the other sections of the Code are also considered....

8......the revisional Court need not insist upon the confinement of the accused before ordering suspension of sentence or order passed against him. If the accused is in confinement, the revisional Court will have to direct his release on bail; if he is not in confinement, the revisional Court need only suspend the execution of the sentence or order, either on the bond already executed or as directed by the revisional Court. Since the relevant provisions of the Code have clearly delineated the situation where the accusers presence is necessary, and since section 397 is silent about the custody or confinement of the accused, the revisional Court need not insist upon bringing the accused to confinement before exercising the powers under section 397(1) of the Code.”

6. In view of the abovesaid decision of the Hon’ble Supreme Court as well as the decision rendered by his Lordship Justice Khalid (as he then was), it is well settled that in respect of the revision against conviction and sentence, for granting the relief of suspension of sentence, the accused need not surrender and undergo confinement and filing revision without surrendering and confinement is well within the power contempla