Madhya Pradesh High Court
Heeralal vs Ramgopal on 1 March, 2017
CRR-1393-2016
(HEERALAL Vs RAMGOPAL)
01-03-2017
Shri Brijesh Panday, learned counsel for the
petitioner.
Shri Himanshu Joshi, learned Penal Lawyer for the
respondent no.1/State.
Shri Vinay Gandhi, learned counsel for the respondent no.2.
Learned counsel for the petitioner submits that the petitioner has surrendered and presently is in jail. Learned counsel for the respondent forcefully raised the issue of maintainability of the present revision petition as at the time of filing of the petition, the petitioner was not under custody.
Therefore, heard on the question of maintainability of the petition first.
Learned counsel for the petitioner has invited my attention towards para 13 of the petition and submitted that the Hon'ble Supreme Court in the case of Bihari Prasad Singh v. The State of Bihar and Anr. (2000) 10 SCC 346 held that:-
â2. The only question that requires consideration in 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 to surrendered.
3. Under the provision of Criminal Procedure Code, there is no such requirement though many High Court in this Country have made such provision in the respective rules of the High Court. But, it is stated to us that there is no such rule in the Patna High Court 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.â It is submitted that in the light of this judgment of Hon'ble the Supreme Court, the present revision petition is maintainable.
Second contention of the learned counsel is that the petitioner has already surrendered and at present he is under custody, therefore, the present revision is maintainable.
Opposing the prayer, learned counsel for the respondent no.2 submits that ratio of the Bihari Prasad case (supra) is not applicable in the Madhya Pradesh so also in the present case. As per Rule 48 of the High Court of Madhya Pradesh Rules, 2008, it was obligatory for the petitioner to surrender before filing of the revision petition and as he had not complied with the provision, the petition is not maintainable. It is further submitted that as the default goes to the root of the petition and the petition was not maintainable on the very first day of filing of the petition, therefore, the defect is not curable. Surrender by the petitioner at a later stage does not make any difference or does not make it maintainable as the procedure can not be revert back to the date of filing, therefore, the respondent no.2 prays for dismissal of the petition. Learned counsel for the respondent submits two judgments of this Court passed in Deepak Sahu vs. State of M.P., 2012 (3) MPLJ 534 and Shyambabu vs. State of M.P. & Anr., delivered on 02.09.2013 in Criminal Revision No.522/2013. In Deepak Sahu case (Supra) while considering the Bihari Prasad Case (Supra) co-ordinate Bench of this Court has held in para 5 that Hon'ble Apex Court has held that there is no such requirement of surrender of the petitioner before filing of the revision petition in the Criminal Procedure Code, but many High Court's in this Country have made such provision in the respective rules of the High Court. It was opined that in the absence of any requirement in the Criminal Procedure Code if any High Court has made such provision in their respective rules than only it is obligatory for the petitioner to surrender on his conviction before filing of the revision petition. Undisputedly, in Madhya Pradash such rules have been framed. Rule 48 of chapter X of the M.P. High Court Rules, 2008 (for short Rules, 2008) reads as under:
â48. 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.â Considering this Rule and the judgment of the Hon'ble Supreme Court passed in Bihari Prasad (supra) case, the Court in Deepak Sahu case held that :
â7. The basic question is whether as per Rule 48 aforesaid, it is obligatory for the person to surrender on his conviction before filing of the revision.
8. In the considered opinion of this Court, the language employed in rule 48 makes it crystal clear that a declaration is mandatory for the accused to the effect that he is in custody or has surrendered after the conviction. The only exception provided in the rule is where the sentence has been suspended by the Court below. In other words, except in cases where a sentence was suspended by the Court below itself, in all other cases there has to be a declaration to the effect that the convicted person is in custody or has surrendered after the conviction. Thus, the intention of the rule makers is unambiguous and clear regarding giving of such declaration.
Needless to mention that an accused can give such declaration only if he is in custody or surrendered after the conviction. Thus, undoubtedly, the intention of Rule is that one has to surrender after conviction or should be in custody except in those cases where sentence has been suspended by the Court. The word âshallâ is used to make it mandatory. This is salutary principle of statutory interpretation that when the words of a statute are clear, plain and unambiguous, the Courts are bound to give effect to that meaning irrespective of consequences. Nelson Motis vs. Union of India, AIR 1992 SC 1981.
9. The apex Court also held that âif the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do alone in such cases best declare the intent of the lawgiver.â (para
50) Principles of Statutory Interpretation) (12th Edition 2010 by justice G.P. Singh) the Apex Court also opined that when language is plain and unambiguous and admits of only one meaning no question of construction of a statute arises, the Act speaks for itself. In the light of this legal position, I have no hesitation to hold that Rule 48 makes it mandatory for the accused to give declaration about his surrender after the conviction or about the fact regarding his remaining in custody.
10. Since Rule 48, in specific, was not brought to the notice of this Court in Kishore (supra), the said judgment is clearly distinguishable on this aspect. On the basis of aforesaid analysis, it is held that a revision petition against conviction is tenable only when it contains a declaration to the effect that the convicted person is in custody or has surrendered after the conviction except in cases where the sentence has been suspended by the Court below.â Following the verdict, this Court again in Shyambabu (supra) case has made it clear that:
â4. Admittedly, the petitioner has not surrendered to the custody before the Court below and instead filed the present revision petition without declaration to the effect that he is in custody or the sentence was suspended by the Court below.
5. This Court in the case of Deepak Sahu & others v. State of M.P., Cr. Revision No.32/12 decided on 02.02.2012 considered the question after considering the judgment in the case of Bihari Prasad Singh (supra) and other relevant Rules and the law on the subject and held that the revision against the conviction is tenable when it contains a declaration to the effect that the accused is in custody or surrendered after his conviction except in cases where the sentence has been suspended by the Court below itself.
6. In view of the decision already rendered by this Court in the case of Deepak Sahu & Others (supra) on the point of maintainability or the revision petition, the present Criminal Revision is not maintainable and, therefore, it has to be and hereby dismissed.â In view of the aforesaid, it is vividly clear that it is obligatory for the person to surrender on his conviction before filing of the revision. It is also not in dispute that at the time of filing of the present petition, the petitioner had not surrendered or was not in jail. Thus ostensibly it appears that the petition is not maintainable. But the facts are little bit different in the present case.
In the case in hand, at present, when we are considering the admissibility or maintainability of the petition, the petitioner has complied with the mandate of the law in substance.
It is not a universal rule that omission to comply with an express or mandatory provision of the law must always vitiate the trial irrespective of any question of prejudice to the accused or the other party. The breach of every provision of the law does not necessarily make the proceedings invalid. If the criminal trial is conducted substantially in the manner prescribed by the Court but some irregularity occurs in the course of such conduct, the irregularity can be cured. The impugned procedure must be one that is not only prohibited by the law but also works an actual injustice to the party/parties of the proceedings.
Now we have to consider as to what would be the effect on admissibility or maintainability of the petition in the present scenario when the petitioner has surrendered and is in jail.
To set the controversy at rest, we have to go to little back and to see the object and intent to introduce the provisions of Rule 48 of Chapter X of the Rules, 2008. It appears that the provision was introduced to avoid misuse of the right of filing the revision/appeal or that the convicts could not defy the verdict of the Court. That possibilities are over in the present case as the accused has surrendered and already sent to the jail. It we consider the situation with one another angle and dismiss the petition and ask the accused to go back and come again before the court for the same purpose just to remove a technical fault, it would not serve any lawfull purpose. It would be difficult to justify this hyper technical approach. In my considered opinion, it would be better option to hold this petition maintainable rather to throw it to satisfy mere technicality in the peculiar fact and circumstances of the case.
In view of the aforesaid discussion, the present petition is maintainable.
Heard on I.A. No.10684/2016 an application for extension of time to deposit the money. It is submitted that due to financial constraint, the petitioner could not arranged the money. Considering the reason so also the age of the petitioner, the application is allowed. Two weeks time is granted to deposit the amount as directed vide order dated 08.11.2016.
List the matter after two weeks.
Cc as per rules.
(VIRENDER SINGH) JUDGE