Bombay High Court
Ramesh Murlidhar Sharma vs The State Of Maharashtra And Anr on 12 February, 2019
Author: V. K. Jadhav
Bench: V. K. Jadhav
901-CriRevn-42-2019
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO. 42 OF 2019
RAMESH MURLIDHAR SHARMA
VERSUS
THE STATE OF MAHARASHTRA AND ANOTHER
.....
Advocate for the Applicant : Mr. Ram S. Shinde
APP for Respondent No.1 : Mr. P. K. Lakhotia
.....
CORAM : V. K. JADHAV, J.
DATED : 12th FEBRUARY, 2019 PER COURT:-
1. Heard.
2. Issue notice to the respondents, returnable on 12.03.2019.
Learned APP waives notice for respondent no.1-State.
3. Call record and proceedings.
4. Learned counsel for the applicant/original accused submits that the applicant was on bail during pendency of trial and also pending the appeal. Learned Magistrate has convicted the applicant/accused under Section 138 of the Negotiable Instruments Act, 1881 and sentenced him to suffer S.I. for six months and to ::: Uploaded on - 12/02/2019 ::: Downloaded on - 13/02/2019 03:14:48 ::: 901-CriRevn-42-2019 -2- pay compensation of Rs.60,000/- to the complainant, in default, to suffer S.I. for one month. The Appellate court has confirmed the said order. The learned counsel, on instructions, submits that the applicant is ready to deposit Rs.10,000/- more before this Court towards compensation as directed by the court below. The applicant has already deposited Rs.25,000/- before the court below. Learned counsel however submits that the applicant is not in jail and he has not surrendered himself before the Court.
5. Learned APP has strongly raised objection to consider the application seeking suspension of the sentence on the ground that the applicant/accused has not surrendered himself before the court and he has not obeyed the orders of the appellate court even though the appeal preferred by him against the judgment and order of conviction passed by the Magistrate stood dismissed by confirming the order of the Magistrate.
6. In the case of Easwaramurthy vs. N. Krishnaswamy, reported in 2006 Cri.L.J. 4105, wherein the Madras High Court in paragraph no.4, has referred the case of Bihari Prasad Singh vs. State of Bhar [(2000) SCC (Cri) 1380] and also referred the ::: Uploaded on - 12/02/2019 ::: Downloaded on - 13/02/2019 03:14:48 ::: 901-CriRevn-42-2019 -3- observations made by the Supreme Court therein. The Madras High Court has further referred the decision in the case of Ibrahim vs. State of Kerala [1979 KLT 857] in paragraph no.5 of the judgment. The observations made by the Madras High Court in paragraph nos. 4 to 6 of the judgment are reproduced herein below:
"4. In respect of the above said contentions raised by the learned Counsel for the petitioner, it Is relevant to note the settled principles of law laid down by the Hon'ble Supreme Court of India reported in Bihari Prasad Singh v. State of Bihar 2000 SCC (Cri) 1380 : 1999 AIR SCW 4926. In the above said decision. Their Lordships have held as follows (paras 2 and-3):
The only question that requires consideration in the present case is whether the High Court while exercising its revisional Jurisdiction can refuse to hear or entertain the matter on the ground that the accused has not surrendered. Under the provisions of the Criminal Procedure there is no such requirement though many High Courts in this country have made such provision in the respective rules of the High Courts. But it is stated to us that there is no such rule in the Patna High 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.
5. In respect of the same question of law viz., whether the accused concerned in the revision against conviction, has to surrender and thereafter only seek the relief of suspension of sentence, the Hon'ble ::: Uploaded on - 12/02/2019 ::: Downloaded on - 13/02/2019 03:14:48 ::: 901-CriRevn-42-2019 -4- Mr. Justice Khalid (as he then was) has held in the decision reported in Ibrahim v. State of Kerala 1979 KLT 857 as follows:
2. Sections 397, 399 and 401 of the Code deal with the powers of revision. Under Section 397, revisions can be filed both before the High Court and the Sessions Judge. The jurisdiction of the revisional Court to pass interim orders Under Section 397(1) is as follows:
(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or parsed, and as to the regularity of any proceedings of such Inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record 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 ::: Uploaded on - 12/02/2019 ::: Downloaded on - 13/02/2019 03:14:48 ::: 901-CriRevn-42-2019 -5- 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 ::: Uploaded on - 12/02/2019 ::: Downloaded on - 13/02/2019 03:14:48 ::: 901-CriRevn-42-2019 -6- 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 contemplated Under Section 397(1) of Cr.P.C. as Section 397(1) Cr.P.C. itself is very clear that there Is absolutely no ambiguity as the reading of the words "direct that execution of any sentence or order be suspended."
7. Thus, by referring the aforementioned judgments of the Supreme Court and also the Kerala High Court, the Madras High Court has observed that in respect of any revision against conviction and sentence, for granting relief of suspension of sentence, the accused need not surrender and undergo confinement in terms of the provisions of Section 397(1) of the Criminal Procedure Code, 1973.
8. I am in agreement with the views expressed by the Madras High Court, especially in the backdrop that the applicant/accused in the present case has been convicted by the Magistrate under Section 138 of the Negotiable Instruments Act, 1881.
9. In view of the above, pending hearing and final disposal of the Criminal Revision Application, the substantive part of the sentence dated 24.03.2017 passed by J.M.F.C. (Court No.1), ::: Uploaded on - 12/02/2019 ::: Downloaded on - 13/02/2019 03:14:48 ::: 901-CriRevn-42-2019 -7- Aurangabad in SCC No.9583 of 2004 and also the compensation as directed by the court below, is hereby suspended till disposal of the Criminal Revision Application on the following conditions:
a. The applicant/accused shall execute a bond of Rs.15,000/-
with one surety of the like amount before the trial court.
b. The applicant/accused shall deposit Rs.10,000/- more before this Court within one week from today.
10. Stand over to 12.03.2019.
( V. K. JADHAV, J.) vre/ ::: Uploaded on - 12/02/2019 ::: Downloaded on - 13/02/2019 03:14:48 :::