Rajasthan High Court - Jaipur
Pawan Narayaniya S/O Dr. Ashok ... vs Rajasthan High Court on 16 February, 2022
Bench: Akil Kureshi, Manoj Kumar Vyas
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Writ Petition No. 2668/2022
Pawan Narayaniya S/o Dr. Ashok Narayaniya, Aged About 45
Years, R/o Behind Dayal Veena Test Centre, Civil Lines, Ajmer,
Rajasthan.
----Petitioner
Versus
1. Rajasthan High Court, Through Registrar Rules, Rajasthan
High Court, Jaipur.
2. State Of Rajasthan, Through Chief Secretary, Secretariat,
Jaipur.
----Respondents
For Petitioner(s) : Mr. Dharmendra Joshi
For Respondent(s) :
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
HON'BLE MR. JUSTICE MANOJ KUMAR VYAS
Order
16/02/2022
The petitioner has challenged the vires of sub-rule 3 of Rule
311 of the Rajasthan High Court Rules. Briefly stated the facts are
that the petitioner was convicted for offence under Section 138 of
the Negotiable Instrument Act by the magistrate against which he
preferred appeal which was also dismissed. The petitioner has
thereupon filed a criminal revision petition before the High Court
which is pending. Pending such revision petition the petitioner
seeks suspension of sentence. Sub-rule (3) of rule 311 reads as
under:-
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"(3) In a case in which a sentence of imprisonment has
been awarded, the petition of appeal or the application for
revision *1 or an application under section 561 A Criminal
Procedure Code shall also contain a certificate signed by the
Advocate for the appellant or the applicant, as the case may
be, stating that the accused was not on bail or that, if he
was on bail, he has surrendered to it. In a case in which
bail has been granted by the Court appealed from under
sub-section (2A) of section 426 of the Code of Criminal
Procedure, the fact shall be stated in the petition of appeal."
According to the counsel for the petitioner there is no
requirement in law that a person who has filed a criminal revision
petition against his conviction and sentence before the High Court,
must surrender before his criminal revision petition would be
taken up for hearing. Any such insistence under the rules is
unconstitutional.
Learned counsel for the petitioner has drawn our attention to
various judgments of this High Court as well as other High Courts
broadly taking a view that to maintain a criminal revision petition
the convict does not have to surrender in jail. It is not necessary
to refer to all these judgments. A reference can be made to the
decision of the learned Single Judge dated 25.11.2010 in case of
Vishnu Teli Vs. The State of Rajasthan & Anr. (S.B.Criminal
Revision Petition No.1734/2009), in the said case similar
controversy in the background of the conviction of the petitioner
for offence under Section 138 of the Negotiable Instrument Act
had come up for consideration. The learned Single Judge referred
to sub-rule (3) of Rules 311 of the Rajasthan High Court Rules and
observed as under:-
"A bare perusal of these rules clearly reveals that while Rule
311 of the High Court Rules deals with the particulars which
need to be mentioned in the application for revision, Rule 308
of the High Court Rules deals with the report which need to
be made by the Registry with regard to the application for
revision. According to the Rule 308(3) of the High Court Rules
casts a duty on the stamp reporter to see whether the
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petition is accompanied by requisite papers or not? Naturally,
the requisite papers refer to Rule 311 of the High Court Rules
which lays down the particulars which need to be contained in
application for revision. According to Rule 311(3) of the High
Court Rules, in case a sentence of imprisonment has been
awarded, the advocate for the applicant should submit a
certificate stating whether the accused was on bail during the
trial or whether he has surrendered in case he was on bail.
Therefore, Rule 311(3) merely requires a certificate to be
submitted by the advocate. In case, the said certificate is
missing from the application for revision, the stamp reporter
is duty bound to report that the petition is not accompanied
by the requisite papers. In such a scenario, he is entitled to
mark the petition as being defective. Naturally, in case the
petition is shown to be defective, the petition is to be listed
before the Court in the category of orders with regard to the
defect pointed out by the registry. It is for the Court to either
over-rule the defect, or to direct the petitioner to remove
such defect by surrendering. Therefore, Rules 308 and 311 of
the High Court Rules merely deal with the procedural law and
not with the substantive law.
A distinction has to be made between presentability of a
petition and maintainability of a petition. Presentability of a
petition deals with the acceptability of a petition by the
registry. In case, there are any defects in the body of the
petition, or in the paper book, the registry is empowered to
point out the defect and claim that because of the defect, the
petition cannot be accepted.
However, maintainability of a petition deals with
whether the petition can be heard under the law or not?
Therefore, the submission of the certificate or the lack of
such certificate with the body of the petition adversely affects
only its presentability before the registry itself. It does not
and cannot affect its maintainability under the law before the
Court. The maintainability of a revision petition would have
to be seen in the light of Section 397 read with Section 401
Cr.P.C. Section 397(2) prohibits the filing of a revision
petition against an interlocutory order. In case, a revision
petition were to be filed against an interlocutory order,
according to Section 397(2) Cr.P.C., the said petition is not
maintainable although such a petition may be presentable, if
it were accompanied with the requisite documents/papers.
Thus, it seems to be a misnomer that in case the said
certificate does not shows the fact that the revisionist has
surrendered, the petition, ipso facto, becomes not
maintainable. In fact, in case the petition is not accompanied
with such a certificate, the petition merely becomes non-
presentable by the registry.
The words if he was on bail, he has surrendered to it
cannot be stretched to the point that these words require
that the revisionist/appellant must surrender himself prior to
filing his revision or appeal. If these words were interpreted
to mean that the appellant or the revisionist must surrender
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prior to filing the appeal or the revision, such an
interpretation would lead to anomalous situations: firstly, in
case where the trial Court itself has suspended the sentence
for a limited period, and in case the appellant or the
revisionist were to file the appeal or the revision petition
during the said period, it would be an anomalous situation to
insist that although the sentence stands suspended, the
appellant/revisionist must surrender. Such a situation would
be quixotic for while a part of the judiciary suspends the
sentence, the other part of the judiciary expects the
appellant to surrender during the period of suspension of
sentence.
Secondly, since there is no such requirement under
Section 374 or under Section 397 read with Section 401 and
374 Cr.P.C, prior to filing of appeal/revision petition, the rules
cannot be permitted to insert a condition which does not exist
in the parental law.
Thirdly, such an interpretation of the rules would make
the rules unconstitutional. For, such a rule would jeopardize
the personal liberty of a person. Moreover, such a rule would
be against the concept of due process of law as contained in
Article 21 of the Constitution of India. Therefore, an
interpretation which leads either to anomalous situation, or to
the declaration of a provision of law as unconstitutional, such
an interpretation should be avoided like the plaque.
Therefore, this Court is of the opinion that the non-
surrender of the appellant or revisionist would not make the
appeal or the petition non-maintainable. The non-surrender
would merely mean that the appeal or the petition has not
been presented properly before the registry. Therefore, the
preliminary objection raised by the learned Public Prosecutor
is unacceptable."
No counter decision is brought to our notice. In view of the decision of this Court in case of Vishnu Teli (supra), we do not find it necessary to hold sub-rule (3) of Rule 311 of the High Court Rules as unconstitutional. The same has been interpreted and in a way read-down.
The sole prayer of the petitioner therefore fails. If the petitioner's grievance is with respect to the implementation of the conditions of Rule 311(3) in light of the decision of this Court in Vishnu Teli (supra), his remedy lies before the Single Judge. This petition certainly is not directed against any interim or final (Downloaded on 19/02/2022 at 09:33:25 PM) (5 of 5) [CW-2668/2022] order passed by the Single Judge nor any such petition would be maintainable.
With these observations, the petition is disposed of. (MANOJ KUMAR VYAS),J (AKIL KURESHI),CJ N.Gandhi/35 (Downloaded on 19/02/2022 at 09:33:25 PM) Powered by TCPDF (www.tcpdf.org)