Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(MP) 524

IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
SUBODH ABHYANKAR, J.
Devnarayan And Others - Petitioners
Versus
Prateek Goyanka – Respondent
CRR No. 1912 of 2024
Decided On : 28-05-2024

Advocates Appeared:
For the Petitioners: Shri Ajay Jain, learned counsel.

A convict is not required to surrender when filing a criminal revision unless the sentence has not been suspended, but must declare custody status.

Headnote:(A) Criminal Procedure Code, 1973 - Sections 397 and 401 - Requirement of surrender before filing a criminal revision - The court held that while it is not mandatory for a convict to surrender when filing a criminal revision, a declaration of custody or surrender is required unless the sentence has been suspended. The court distinguished between cases where surrender is necessary and where it is not, emphasizing the need for exceptional circumstances to claim exemption from surrender. (Paras 1, 4, 10, 11)

(B) Judicial Precedent - The court noted that decisions of coordinate benches are binding unless distinguished, and the principle of binding precedent must be adhered to. (Paras 8, 9)

Facts of the case:
The applicant filed a criminal revision against a conviction without surrendering to the District Appellate Court, arguing that surrender was not necessary. The court examined previous rulings on the matter, including conflicting decisions from different benches.

Findings of Court:
The court found that while surrender is not always mandatory, a declaration regarding custody or surrender is required unless the sentence has been suspended. The applicant was directed to surrender before the District Appellate Court.

Issues: The main issues were whether a convict must surrender before filing a revision and the interpretation of relevant rules regarding this requirement.

Ratio Decidendi: The court ruled that the requirement for surrender is not absolute but must be accompanied by a declaration of custody unless the sentence is suspended. The court emphasized the importance of adhering to judicial precedent.

Result: The petitioner is directed to surrender before the District Appellate Court within a week.

JUDGMENT :

(Subodh Abhyankar, J.)

1. This Criminal revision under Section 397 read with Sction 401 of the Criminal Procedure Code, 1973 (hereinafter to be referred to as “CRPC”) has been filed by the applicant against the judgement dated 15.4.2024, passed by the Additional Sessions Judge and Special Judge Electricity in CRA.No.219/2022; whereby, the learned additional Sessions Judge has dismissed the appeal preferred by the appellants against the order dated 11/7/2022 passed by the learned JMFC Indore, along with an application for suspension of sentence. Admittedly, the petitioner has not surrendered before the District Appellate Court.

2. Although, no application for exemption from appearance has been filed, however, Shri Ajay Jain, learned counsel appearing for the petitioner has submitted that the petitioner is, and was not required to surrender before the District Appellate Court even after his conviction, as it is not mandatory for the petitioner to do so as has already been held by the coordinate Bench of this Court at principal Seat at Jabalpur, in the case of Sanjay Nagayach Vs. State of Madhya Pradesh in CRR.No.729/2024 vide order dated 20.2.2024, wherein this Court has also considered Rule 48 of Chapter X of the M.P. High Court Rules and Orders, and has held there is no requirement for a convict to surrender or to remain in jail for filing a criminal revision.

3. Heard. On due consideration, and on perusal of the judgment rendered by the Coordinate Bench of this Court at Principal Seat at Jabalpur in the case of Sanjay Nagayach (supra), it is found that although the learned single judge has referred to Rule 48 of the Chapter X of MP High Court Rules and Order, however, this court has also come across an earlier decision by the coordinate Bench of this Court at Gwalior in the case of Deepak Sahu v. State of M.P., reported as 2012(3)MPLJ 534/2012 SCC On Line MP 808, which has already taken note of the aforesaid Rule 48, and it has already been held that it is necessary for a person, who has filed a criminal revision against an order of conviction by the District Appellate Court, to surrender before the District Appellate Court, before filing the criminal revision in the High Court.

4. To understand the controversy, it is necessary to refer to the order dated 20.2.2024, passed in the case of Sanjay Nagayach (supra), the same reads as under:-

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 executio