JUDGMENT

IA No. 142506/2024 - EXEMPTION FROM FILING O.T.

Date : 30-07-2024 The matter was called on for hearing today.

CORAM : HON'BLE MR. JUSTICE DIPANKAR DATTA HON'BLE MR. JUSTICE PRASHANT KUMAR MISHRA For Petitioner(s) Mr. Mukesh Kumar, AOR Mr. Gaurav Prakash Shah, Adv. Mr. Madhup Kumar Tiwari, Adv.

Mr. Rajesh Kumar, Adv.

For Respondent(s)

UPON hearing the counsel the Court made the following

O R D E R

Delay condoned.

2. The petitioner was convicted by the relevant Judicial Magistrate, First Class vide judgment dated 03.11.2017 for commission of offence under Section 7(i) and (iii) of the Signature Not Verified DigitaPlly srigneed bvyention of Food Adulteration Act, 1954 and consequently, in Jatinder Kaur Date: 2024.08.05

17:04:36 IST Reason:

terms of Section 16(1)(a)(i) thereof, sentenced to six months’ R.I. together with fine of Rs.1,000/-. The conviction and sentence have since been affirmed by the relevant Additional Sessions Judge, in appeal, vide judgment and order dated 02.11.2022.

3. The appellate judgment and order, upon being challenged by the petitioner in revision before the High Court of Madhya Pradesh1, was not considered on merits and stood dismissed by the impugned judgment and order dated 25.01.2024, which we presently propose to notice.

4. Despite his conviction, the petitioner had not surrendered to serve the sentence imposed on him. Instead, he filed an application seeking exemption from surrendering. The High Court has held that the application filed by the petitioner in the revision seeking exemption to surrender is not maintainable in view of the specific provision contained in Rule 48 of Chapter 10 of the High Court of Madhya Pradesh Rules, 20082.

5. Rule 48 of the 2008 Rules reads as follows:

“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.

Where the sentence has been so suspended, the factum of such suspension and its period shall be stated in the memorandum of appeal or revision petition, as also in the application under section 389 of the Code of Criminal Procedure, 1973.

An application under section 389 of the Code of Criminal Procedure, 1973 shall, as far as possible, be in Format No. 11 and shall be accompanied by an affidavit of the appellant/applicant or some other person acquainted with the facts of the case.”

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High Court, hereafter 2008 Rules, hereafter

6. Bare perusal of the first part of Rule 48 would leave none in doubt that the same casts an obligation on the revisionist, in case he has to serve a sentence upon being convicted and the revision filed by him challenges the conviction and sentence, to surrender and disclose such fact in the revision petition. In other words, what such provision implies is that for a revision to be entertained by the High Court at the instance of a convict who has not otherwise obtained an order of suspension of sentence, to surrender in terms of the order(s) of the competent court(s) that tried him and dismissed his appeal.

7. The judgment and order dated 25.01.2024, by which the High Court thought it fit to dismiss the application of the petitioner seeking exemption on the ground that the same is not maintainable, is challenged in this special leave petition on the primary contention that the same is in the teeth of the decision of this Court in Vivek Rai & Anr. vs. High Court of Jharkhand3. Relying on paragraph 11 of such decision, learned counsel appearing for the petitioner contends that it is well settled principle of law that the High Court, in exercise of its inherent power, may consider it appropriate to grant exemption from surrendering having regard to the nature and circumstances of a particular case; and, in view thereof, the High Court was in error in holding that in no case is an application seeking exemption from surrendering is maintainable. 8. W