Madhya Pradesh High Court
Smt. Lata vs Manjul on 23 July, 2019
Cr.R. No.3467/2019 1
(Smt. Lata W/o Nitin Khandelwal
vs. Manjul S/o Satyaprakash Saxena)
The High Court Of Madhya Pradesh
Indore : 23/07/2019 :-
Ms. Mini Ravindran, learned counsel for the petitioner.
Heard on admission as well as on IA No.5819/2019
i.e. an application for suspension of jail sentence of the
petitioner.
The revision seems to be arguable, therefore, this
revision is admitted for final hearing.
The petitioner is convicted under Section 138 of
Negotiable Instruments Act by ACJM, Indore in criminal case
No.20379/2013 vide judgment dated 04/10/2016 to undergo
sentence of 6 months RI with compensation of Rs.2,00,000/- in
the light of the judgment delivered by Hon'ble Apex Court in
the matter of Harisingh Vs. Sukhvirsingh 1988 (40) SCC 5511,
against which the petitioner has preferred an appeal whereby
the learned ASJ and Special Judge, Electricity Court No.6,
Indore vide judgment dated 11/07/2019 in Criminal Appeal
No.892/2016 has dismissed the said appeal and confirmed the
sentence and compensation awarded by the learned trial
Court. Being aggrieved the judgment, the present revision
petition has been filed by the petitioner before this Court.
As per Rule 48 Chapter X of High Court of M.P. Rules,
2008, the revision memo should contain the declaration that
the applicant has surrendered before the Court below before
consideration of application for suspension of jail sentence.
Learned counsel for the petitioner submits that petitioner
has already deposited an amount of Rs.40,250/-.
Learned counsel for the petitioner relying on the
Digitally signed by Jagdishan Aiyer
Date: 29/07/2019 16:51:54
Cr.R. No.3467/2019 2
(Smt. Lata W/o Nitin Khandelwal
vs. Manjul S/o Satyaprakash Saxena)
judgment passed by Apex Court in the matter of Vivek Rai
and another vs. High Court of Jharkhand (2015) 12 SCC
86 and submits that petitioner may be exempted from
surrendering before the trial Court and revision is maintainable.
In light of the aforesaid judgment, she further submits
that Rule 48 of the High Court of M.P. Rules, 2008 is pari
materia with the Rule 159 of Jharkhand High Court. In this
Rule also the applicant is required to be surrendered before the
trial Court and declaration to that effect should be filed
alongwith revision memo while interpretating the said Rule.
The Apex Court in the case of Vivek Rai (Supra) has
held that this rule does not affect the inherent powers of the
High Court to exempt the applicant from surrendering in
exceptional cases.
In light of the aforesaid, she prayed that the petitioner
may be exempted from surrendering before the trial Court. It is
also prayed that the petitioner be exempted from surrendering
before the Court below, as she is a lady and is suffering from
Kidney disease as well as other diseases, of which all the
related medical documents are filed on record, therefore,
looking to her health condition, her case may be treated as an
exceptional case and she may be exempted from surrendering
before the Court below and prays for grant of suspension of jail
sentence.
She further relied on the order passed by High Court of
Judicature at Bombay, Bench - Aurangabad passed in criminal
case No.42/2019 in the matter of Ramesh Murlidhar
Sharma vs. State of Maharashtra and another.
Digitally signed by Jagdishan Aiyer
Date: 29/07/2019 16:51:54
Cr.R. No.3467/2019 3
(Smt. Lata W/o Nitin Khandelwal
vs. Manjul S/o Satyaprakash Saxena)
Heard learned counsel for the petitioner and perused the
record.
A question in the present case is arose whether sentence
can be suspended despite the fact that petitioner has not
surrendered before the Court below.
Chapter X of Section 48 of High Court of M.P. Rules, 2008
read thus :-
"48. 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 Code
of Criminal Procedure, 1973.
An application under Section 389 of Cr.P.C.
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."
As per the rules which are framed by Jharkhand High
Court Rule 159, are also requires surrender of the accused
before the Court below.
Considering the aforesaid Rules, the Hon'ble Supreme
Court in Vivek Rai (Supra) in para 10 and 11 has held as
under :-
Digitally signed by Jagdishan Aiyer
Date: 29/07/2019 16:51:54
Cr.R. No.3467/2019 4
(Smt. Lata W/o Nitin Khandelwal
vs. Manjul S/o Satyaprakash Saxena)
"10. 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 exception is not to be
found in the impugned Rule.
"11. 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 cannot thus, be argued that
prohibition against posting of a revision petition for
admission 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 a case. Thus, the exception as
found in corresponding Supreme Court Rules 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."
As per the judgment passed by Hon'ble Apex Court in
exercise of inherent powers of High Court, the High Court can
consider it appropriate to exempt the accused from
surrendering before the Court below having regard to the
nature and circumstances of the case.
The present case is related to the Offence under Section
138 of Negotiable Instruments Act and the petitioner is lady
and already suffering from Kidney disease and other diseases,
therefore, it can be treated as an exceptional case, therefore,
Digitally signed by Jagdishan Aiyer
Date: 29/07/2019 16:51:54
Cr.R. No.3467/2019 5
(Smt. Lata W/o Nitin Khandelwal
vs. Manjul S/o Satyaprakash Saxena)
treating the case of the petitioner as exceptional, petitioner is
exempted from surrendering before the trial Court.
Thus, in the facts and circumstances of the case,
without expressing any opinion on the merits of the case, the
application (IA No.5819/2019) for suspension of jail
sentence is allowed subject to depositing Rs.60,000/- cash
by the petitioner before the trial Court within a period of one
month. It is directed that on furnishing personal bond of
Rs.50,000/- (Rupees Fifty Thousand Only) with one
solvent surety in the like amount to the satisfaction of the trial
Court for her appearance before this Court/Registry on
04/10/2019 and on all other subsequent dates, as may be
fixed by the Registry in this behalf, the execution of substantial
jail sentence imposed on the petitioner shall remain
suspended, till the final disposal of this revision, subject to
complying the condition mentioned above.
A copy of this order be sent to Court concerned for it's
compliance.
Let record of Courts below be called for.
Let notice be issued to the respondent on payment of
process-fee within a period of one week, returnable within four weeks.
List the matter after four weeks alongwith service report and record.
C.C. as per rules.
(Ms. Vandana Kasrekar) Judge Aiyer* Digitally signed by Jagdishan Aiyer Date: 29/07/2019 16:51:54