Patna High Court - Orders
Rani Gupta vs The State Of Bihar on 4 February, 2020
Author: Anjana Mishra
Bench: Anjana Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.608 of 2019
Arising Out of PS. Case No.-189 Year-2001 Thana- MIRGANJ District- Gopalganj
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1. RANI GUPTA Wife of Prakash Chandra Gupta Resident of Purab Mohalla,
Mirganj, Ward No.11, Kharpakwa,P.S.-Mirganj,District-Gopalganj.
2. Urmila Gupta @ Rachana Kumari Wife of Mukesh Kumar Resident of
House No.1, Indrapuri Road, P.S.-Sukhdev Nagar, Ratu Road,
Hehal,District- Ranchi, Jharkhand-834005.
... ... Petitioner/s
Versus
1. THE STATE OF BIHAR
2. Rita Keshri Wife of Udaychand Gupta Resident of Village and P.O-Mirganj,
District-Gopalganj.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Y.V. Giri, Sr. Advocate
Mr. Pranav Kumar, Advocate
Mr. sumit Kumar Jha
For the O.P. No. 2 : Mr. Javed Aslam, Advocate
For the State : Mr. Umesh Lal Verma, Advocate
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CORAM: HONOURABLE JUSTICE SMT. ANJANA MISHRA
ORAL ORDER
9 04-02-2020Re. I.A. No. 01 of 2019 The present interlocutory application has been filed on behalf of the petitioners, namely, Rani Gupta and Urmila Gupta who are the married Nanad and the similarly placed Gotni in a case of conviction which has arisen out of allegations under Sections 498(A) of the Indian Penal Code.
Learned counsel for the revisionists has challenged the order dated 10.05.2011 passed by the learned 1 st Assistant Sessions Judge, Gopalganj, in Sessions Trial No. 264 of 2001 Patna High Court CR. REV. No.608 of 2019(9) dt.04-02-2020 2/8 arising out of Mirganj P.S. Case No. 189 of 2001.
Learned counsel for the revisionists submits that the present interlocutory application was necessitated on account of the fact that though the conviction against these two petitioners are of two years and are sentenced to undergo rigorous imprisonment for two years for the offence under Section 498(A) of the I.P.C., three months for the offence under Section 342 of IPC and 3 months for the offence under Section 4 of the Dowry Prohibition Act, however, all the sentences shall run concurrently.
Learned Senior Counsel appearing on behalf of the petitioners has filed the present interlocutory application seeking exemption from surrender while filing the present revision application under Section 482 of the Cr. P.C. and 57A of the Patna High Court Rules. Invoking the inherent jurisdiction of this Court, learned Senior Counsel has submitted that the Rule 57A has been instituted for granting exemption from filing surrender certificate with effect from 23.09.1999 which is extracted hereunder:-
"57A. In the case of revision under section 397 and 401 of the Code of Criminal Procedure 1973, arising out of a conviction and sentence of imprisonment, the petition Patna High Court CR. REV. No.608 of 2019(9) dt.04-02-2020 3/8 shall state whether the petitioner had surrendered or not. If he has surrendered, the petition shall be accompanied by a certified copy of the relevant order. If he has not surrendered the petition shall be accompanied by an application seeking leave to surrender within a specified period. On sufficient cause being shown, the Bench may grant such time and on such conditions as it thinks fit and proper. No such revision shall be posted for admission unless the petitioner has surrendered to custody in the concerned court."
Learned Senior Counsel for the petitioners further submits that on a sufficient cause being shown and under exceptional circumstances, it is open to this Court to pass order under its inherent jurisdiction to grant exemption before the case is being placed for consideration on merits in the admission matters. He thus submits that the present petitioners may also be granted exemption as they are both married and living separately from the family and their surrender would occasion miscarriage of justice. He further submits that interim protection has also been granted which is pending notice to opposite party No. 2 who has also appeared in this case.
Learned counsel appearing on behalf of the O.P. No. 2 submits that it is a mandatory requirement for consideration of Patna High Court CR. REV. No.608 of 2019(9) dt.04-02-2020 4/8 any revision application that the revisionist surrender and file its surrender certificate and there is no exceptional circumstances for grant of such exemption to the petitioners as they have already failed in their appeal before the Court below and the revision has now been preferred. He thus submits that the interlocutory application is without any merit and it should be dismissed.
Having heard learned counsel for the petitioners and learned counsel for the O.P. No. 2, it appears that the High Court Rule does envisage as per 57-A grant of such exemption under exceptional circumstances. Notice has already been brought to this Court to an order dated 24.09.2014 passed in Cr. Revision No. 594 of 2011 wherein while considering the provision of the Patna High Court Rules under Rule 57-A, it has been held as follows:-
"Rule 57A present at Chapter-XII of the Patna High Court Rules even while requiring the petitioner to surrender before the concerned court before his revision could be posted for admission, yet gives him an opportunity to file an application before the High Court seeking leave to surrender within a specified period and upon sufficient cause being shown the Bench may grant such time and on such conditions as it thinks fit and proper. Thus a power is vested in the High Court to exempt the petitioner from surrendering in the matter for such time and on Patna High Court CR. REV. No.608 of 2019(9) dt.04-02-2020 5/8 such terms and conditions as deem fit and proper and it is in exercise of such power that a Bench of this Court did issue notice to the opposite party no.2 on 21.6.2011 in order to verify whether the complainant yet would abide by her decision to compromise the matter. Now had the complainant opposed the compromise before this Court, perhaps the surrender would have become mandatory in terms of rule 57A of Chapter-XII of the Patna High Court Rules and the petitioner would have no other option but to surrender before his application could be heard but taking note of the circumstances where the opposite party no.2 Pramjit Kaur has appeared before this Court to reiterate her decision to compromise the matter, this Court is of the opinion that merely by reason of a lapse occurring at the appellate court level where the appeal itself could have been disposed of in terms of the compromise, at this stage requiring the petitioner to undergo imprisonment before his revision application can be heard for recording the obvious would be a travesty of justice. In view of the uncontested position that a compromise has been entered into between the parties, the peculiar circumstances of the present case would persuade this Court to consider the prayer for exemption made by the petitioner. Section 397 of 'the Code' vests the revisional court with the power to examine the records of an inferior court for satisfying itself as to the legality and propriety of the proceedings. The object is to set right a patent defect or an error in exercise of jurisdiction. The basic object of such exercise is to ensure that justice is seemingly done and that an aggrieved does not suffer by reason of an erroneous finding or any irregularity of procedure which goes to the root of the matter. Patna High Court CR. REV. No.608 of 2019(9) dt.04-02-2020 6/8 Had there been a provision of review under 'the Code', it would not have required the petitioner to approach this Court in the revisional jurisdiction for the non-consideration of the compromise petition by the appellate court was an error apparent on the face of record and the petitioner could have pressed the review jurisdiction but in view of the clear bar under section 362 of 'the Code', he is handicapped."
Learned Senior Counsel for the petitioners has also placed before this Court an order passed in a writ petition (Cr. No. 61 of 2012) wherein the Jharkhand High Court Rules 2001 Rule 159 had been placed for consideration before the Apex Court and the Apex Court while considering the said case wherein at paragraph 8 and 9, a consideration has been placed to a similar circumstances as is prevalent in the Patna High Court Rules. Paragraphs No. 8 and 9 are as follows:-
"8. Only further submission put forward is that inherent power of the Court to direct listing of the case by exempting the requirement of surrender has been taken away. It is pointed out that even in Supreme Court Rules prohibition against listing without surrender is not applicable if the Court otherwise directs. Such exemption is not to be found in the impugned Rule.
9. It has not been disputed even by the learned counsel for the High Court that the Rule does not affect the inherent power of the High Court to exempt the requirement of surrender in exceptional situations. It can not thus, be argued that prohibition against posting of a revision petition for admission Patna High Court CR. REV. No.608 of 2019(9) dt.04-02-2020 7/8 applies even to a situation where on an application of the petitioner, on a case being made out, the Court, in exercise of its inherent power, considers it appropriate to grant exemption from surrender having regard to the nature and circumstances of the case. Thus, the exception as found in corresponding Supreme Court Rule that if the Court grants exemption from surrender and directs listing of a case, the Rule cannot stand in the way of the Court's exercise of such jurisdiction, has to be assumed in the impugned Rule."
Having considered in detail the ratio of the two judgments cited hereinabove and in view of the fact that the Apex Court had rightly pointed out in any revision, the question of grant of bail in a bail/revision pre-supposes surrender by a convict person to be a fallacious argument and that in the present facts and circumstances of the case, the two petitioners are merely the married Nand and also the similarly placed Gotni whose role can well be considered to be illusory as is evident from paragraphs No. 3, 6 and 11 of the interlocutory application, this Court finds that the application for exemption from surrender is worthy of consideration. The same is accordingly allowed.
Let the revision application be placed under the heading 'For Admission' on 10.02.2020.
I.A. No. 1 of 2019 stands allowed and, therefore, Patna High Court CR. REV. No.608 of 2019(9) dt.04-02-2020 8/8 defect No. 6(5) stands overruled.
(Anjana Mishra, J) Saif/ Sonali.
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