Bombay High Court
Popat Dattatraya Ajabe And Others vs The State Of Maharashtra on 3 August, 2020
Author: V. K. Jadhav
Bench: V. K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
5 CRIMINAL APPLICATION NO. 1238 OF 2020
IN
CRIMINAL REVISION APPLICATION NO.89 OF 2020
1. Popat Dattatraya Ajabe
2. Raju Arjun Ajabe
3. Bhausaheb Mahadev Choudhari ...Applicants
versus
The State of Maharashtra ...Respondents
.....
Advocate for Applicants : Mr. Gaware Niteen V.
APP for Respondents: Mr. A.A. Jagatkar
.....
CORAM : V. K. JADHAV, J.
DATED : 3 rd AUGUST, 2020
PER COURT:-
1. Heard.
2. The revision applicants came to be tried in R.C.C. No. 116 of
2002 and the learned J.M.F.C. Ashti, District Beed has convicted
them for the offences punishable under Sections 326 r.w. 34 of I.P.C.
and 324 r.w. 34 of I.P.C. Being aggrieved by the same, the revision
applicants have preferred criminal appeal No. 3 of 2018 and the
Additional Sessions Judge, Beed vide judgment and order dated
3.7.2020 though dismissed the appeal, modified the judgment and
order of the trial court by setting aside the conviction and sentence
under Section 324 r.w. 34 of I.P.C. and confirmed the order of
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conviction and sentence under Section 326 r.w. 34 of I.P.C. with
modification about fine amount.
3. Learned counsel for the revision applicants submits that the
applicants were on bail during the trial and even during pendency of
the appeal. Even though the applicants are not surrendered in terms
of the modification of the order passed by the Additional Sessions
Judge, Beed vide judgment and order dated 3.7.2020 in criminal
appeal No. 3 of 2018, the applicants' case is covered by the order of
this Court dated 25.2.2019 passed in criminal appeal No. 711 of
2019 in criminal revision application No. 58 of 2019.
4. I have also heard the learned A.P.P. for the respondent State.
5. In the identical facts of the case, though the applicant accused
have not surrendered themselves in terms of the judgment and order
of conviction as modified by the appellate court, by relying upon the
judgments of Madras High Court and the Supreme court, this Court
(Coram V.K. Jadhav, J.) in para No.5 of the order dated 25.2.2019
passed in criminal appeal No. 711 of 2019 in criminal revision
application No. 58 of 2019, has made the following observations:-
"5. 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 Bihar [(2000) SCC (Cri) 1380] and also referred the
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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 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
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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 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
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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 above said 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 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."
6. In view of the above, there is no impediment as such to release
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the applicants on bail. The applicants have deposited the fine amount
as modified and directed by the appellate court. Hence, I proceed to
pass the following order:-
ORDER
I. Criminal application is allowed. II. Pending criminal revision application No. 89 of 2020, the
substantive part of the sentence passed by the J.M.F.C. Ashti dated 29.12.2017 in R.C.C. No. 116 of 2002 and modified by the Additional Sessions Judge, Beed dated 3.7.2020 in Criminal appeal No. 3 of 2018 stands suspended and till then, the applicants (1) Popat Dattatraya Ajabe, (2) Raju Arjun Ajabe and (3) Bhausaheb Mahadev Choudhari be released on bail on furnishing P.B. of Rs.15,000/- (Rupees fifteen thousand) each with one surety each of the like amount.
III. Bail before the lower court.
IV. Criminal application is accordingly disposed of.
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