Bombay High Court
Bajrang Vitthal Hake vs The State Of Maharashtra on 3 May, 2023
Author: S. G. Mehare
Bench: S. G. Mehare
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO. 301 OF 2022
WITH
CRIMINAL APPLICATION NO.3373 OF 2022 IN REVN/301/2022
1. Ikbal Chandulal Shaikh,
2. Lahu Tulshiram Gaware,
Both R/o. Shirasgaon, Tq. Shrirampur,
Dist. Ahmednagar .. Petitioners
VERSUS
1. The State of Maharashtra,
2. Krushna Bhikaji Pawar,
3. Shital W/o Krushna Pawar,
4. Sanjay Bhikaji Pawar,
Respondent Nos. 2 to 4 resident of
Manori, Tq. Rahru Dist. Ahmednagar .. Respondents
Mr. S. S. Panale, Advocate for the petitioners;
Mr. S. B. Narwade, A.G.P. for respondent No.1;
Mr. P. N. Muley, Advocate for respondents No.2 to 4
AND
CRIMINAL REVISION APPLICATION NO. 320 OF 2022
WITH
CRIMINAL APPLICATION NO. 3644 OF 2022 IN REVN/320/2022
Bajrang S/o Vitthal Hake,
Age : 59 Years, Occ. Agriculture,
R/o. Prashant Nagar, Ambajogai,
Taluka Ambajogai, District Beed .. Petitioner
VERSUS
The State of Maharashtra,
Through Police Inspector,
Ambajogai, District Beed .. Respondent
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AND
CRIMINAL REVISION APPLICATION NO. 318 OF 2022
WITH
CRIMINAL APPLICATION NO. 3633 OF 2022 IN REVN/318/2022
Sambhaji S/o Digambar Kachgunde,
Age : 45 Years, Occ. Agriculture,
R/o. Prashant Nagar, Tal. Ambajogai,
Dist. Beed. .. Applicant
VERSUS
The State of Maharashtra,
Through Police Inspector,
Ambajogai Police Station,
Tal. Ambajogai, Dist. Beed. .. Respondent
...
Mr. K. N. Shermale, Advocate for the applicant;
Mr. S. B. Narwade, A.P.P for Respondent/State
.....
CORAM : S. G. MEHARE, J.
Reserved on : 05.12.2023
Pronounced on : 03.05.2023
ORDER
1. The applicants are seeking suspension of sentence under Section 397 of the Code of Criminal Procedure (Cr.P.C. for short) passed by the learned Judicial Magistrate First Class and confirmed by the learned Additional Sessions Judge (subordinate Appellate Court, for short). ::: Uploaded on - 04/05/2023 ::: Downloaded on - 04/05/2023 19:20:49 :::
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2. The subordinate appellate Court cancelled the bail bonds of the accused and directed them to surrender before the trial Court for the execution of the sentence. Admittedly, soon after the decision of the appeal, the present applicants were not sent to jail under a conviction warrant, nor did the applicant surrender.
3. The learned counsel Mr. S. S. Panale and Mr. K. N. Shermale for the applicants have vehemently argued that Section 397 of the Code of Criminal Procedure thus provides for suspension of sentence, and for suspension of sentence, the accused need not surrender. In other words, they have vehemently argued that for the suspension of the sentence before the High Court, surrender of the applicant is not sine qua non. The tone of their argument is once the Revision under section 397 Cr.P.C. is preferred, the High Court shall suspend the sentence unless the High Court Rules prescribe the Procedure directing the accused to surrender before the sentence is suspended. To bolster their arguments, they relied on the judgments and orders of this Court passed in Criminal Application No.1238 of 2020 in Criminal Revision Application No. 89 of 2020 [Popat Dattatraya Ajabe and other Vs. The State of Maharashtra] dated 3rd August, 2020 and Criminal Application No. 2743 of 2019 in Criminal Revision Application No. 232 of 2019 dated 12th June 2020. Relying strongly on these Judgments, they ::: Uploaded on - 04/05/2023 ::: Downloaded on - 04/05/2023 19:20:49 ::: 4 CrRn-3373-22-J.odt claimed that the applicant deserves suspension of sentence and bail till the conclusion of the revision petition.
4. The learned A.P.P has strongly opposed the applications and raised the following points;
(i) Soon after the conviction, the subordinate appellate Court confirming the conviction shall take the convict into custody and send him to jail under a conviction warrant.
(ii) The Subordinate appellate Court has no jurisdiction to suspend the sentence and continue the bail.
(iii) The subordinate appellate Court has no power to direct the accused to surrender before the trial Court for the execution of the sentence.
(iv) The subordinate appellate Court shall not deliver the Judgment of conviction unless the presence of the accused has been secured before the Judgement is pronounced, except the personal attendance was exempted in an exceptional case.
(v) There was no uniformity in the judgments of subordinate appellate Courts as regards taking the convict into custody for the execution of the sentence soon after confirming the Judgment of conviction.
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(vi) The subordinate appellate Courts do not cancel the bail bonds of the accused and discharge the surety after the conclusion of the appeal.
(vii) The convict in each case cannot claim the suspension of sentence under section 397 Cr.P.C. as a matter of course subject to exceptional circumstances.
(viii) The Revisional Court cannot grant bail to the petitioner unless he is behind bars either in the custody of the Magistrate or suffering the sentence.
5. He further argued that in the case at hand, the accused were present in the Court at the time of pronouncing the Judgment and exemption was not granted to them from appearance during the trial. Therefore, the learned subordinate appellate Court was to send them to jail for the execution of the sentence. There is no uniformity in the judgments and orders as regards sending the convict for the execution of the sentence, and different practises are followed throught the State, and that is a disparity. There must be uniformity in the application of the law. Everyone is equal before the law. Not applying the law uniformly is discrimination. Such an illegal practice shall be corrected. Some of the accused who appear honestly before the subordinate appellate Court at the time of pronouncement of Judgment are sent to ::: Uploaded on - 04/05/2023 ::: Downloaded on - 04/05/2023 19:20:49 ::: 6 CrRn-3373-22-J.odt jail, and the shrewd avoiding the execution of the sentence approach this Court for suspension of the sentence as a matter of right. That is not good practice. It has created a mess and spread the feeling of inequality in society. Therefore, the earlier view taken by this Court suspending the sentence without surrender and granting bail as a matter of course needs to be re-viewed afresh from the legal perspective.
6. The law is well settled that there shall be uniformity in the application of the law. The reason is obvious everyone is equal before the law. The uniformity gives certainty. Certainty and practicability are inherent parts of the Rule of law. Considering the principle of applicability of law equally and maintaining uniformity to assure certainty and practicability, the issues raised by the learned APP have great magnitude.
7. Considering the objection raised by the learned A.P.P, and learned counsel for the applicants, the following points arise for consideration;
(i) Can the trial Court or the subordinate appellate Court deliver the Judgment of conviction without securing the presence of the accused?
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(ii) Can the subordinate appellate Court suspend the sentence on confirming the Judgment of conviction of the trial Court?
(iii) Can the subordinate appellate Court direct the accused to surrender before the trial Court for the execution of the sentence?
8. Section 387 of the Code of Criminal Procedure deals with judgments of the subordinate appellate Court. It has been provided therein that the rules contained in chapter XXVII of the Code of Criminal Procedure as to Judgment of a criminal Court of original jurisdiction shall apply, so far as may be practicable, to the Judgment in appeal of a Court of Session or Chief Judicial Magistrate. It has been expressly provided that unless the appellate Court otherwise directs, the accused shall not be brought up, or required to attend, to hear Judgment delivered. The various sections in the said chapter speak of what shall be the language and contents of the Judgment, the order to pay compensation, and passing an order under Section 360 to or not to release the accused on probation of good conduct or after admonition.
9. Section 353 under Chapter XXVII of the Code of Criminal Procedure deals with delivering the Judgment. It is a provision that the Court shall deliver the Judgment in open Court. Sub-Section 5 of the ::: Uploaded on - 04/05/2023 ::: Downloaded on - 04/05/2023 19:20:49 ::: 8 CrRn-3373-22-J.odt said Section states, "If the accused is in custody, he shall be brought up to hear the judgment pronounced". Sub-section (6) of the said Section provides that if the accused is not in custody, he shall be required by the Court to attend to hear the Judgment pronounced, except his personal attendance during the trial has been dispensed with, and the sentence is one of fine only, or he is acquitted. Provided that, where there are more accused than one, and one or more of them do not attend the Court on the date on which the Judgment is to be pronounced, the Presiding Officer may, to avoid undue delay in the disposal of the case, pronounce the Judgment notwithstanding their absence. The proviso to sub-section 6 is that in case of absence of one or more accused, to avoid undue delay in the pronouncement of Judgment, the Court may pronounce the Judgment in the absence of the accused who were not present. The purport of sub-section 6 is unless personal attendance is exempted during the trial, the Judgment shall not be pronounced in the absence of the accused. Reading the Section, one can find that unless the presence of the accused is secured, the trial Court or the Court of Sessions cannot deliver the Judgment, subject to certain exceptions mentioned in the proviso to sub-section 6.
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10. The Bombay High Court has dealt with the issue as regards the procedure to be followed while delivering the Judgment in the case of Moinoddin S/o Khodboddin Versus The State of Maharashtra, 2003 Volume II Labour Law Journal 216. Paragraph 14 of the said Judgment is relevant to the issue raised before the Court, which reads thus;
"14. Reading proviso to Section 387 of the Criminal Procedure Code, it may be argued that, it is not mandatory upon the appellate Court to direct the accused to be brought up or required to attend, to hear the Judgment delivered because of the words "shall not"
incorporated in the proviso. However, this proviso is required to be read in the light of Section 387 read with Section 353(5) and 353(6). Provisions regarding the Judgment as contained in Chapter XXVII of the Criminal Procedure Code are applicable to the Judgment of Subordinate appellate Court and in Section 387 also the words used are "shall apply". The proviso to Section 387, therefore, shall stand controlled by the provisions contained in Sections 353(5) and 353(6) and, therefore, the subordinate appellate Court will be obliged to secure the presence of accused/appellant before it for pronouncement of Judgment except in the cases wherein the Judgment is of acquittal or one of fine only. Once the presence of appellant-accused is secured or the purpose of pronouncement of Judgment confirming the conviction with substantive sentence, as observed in the matter of Dilip v. State of Maharashtra (supra), the ::: Uploaded on - 04/05/2023 ::: Downloaded on - 04/05/2023 19:20:49 ::: 10 CrRn-3373-22-J.odt Subordinate Appellate Court would become functus officio and cannot suspend the sentence or grant bail in order to enable the accused to prefer Revision before the High Court. The only course available, therefore, would be to execute the order of conviction confirmed by it, leaving the accused to obtain suspension of sentence and bail from the High Court by preferring appropriate Revision.
15. On reference to criminal manual of instructions issued by the High Court of Judicature, Appellate Side, Bombay, for the guidance of criminal Courts and officers subordinate to it, the same contains Form XV regarding "warrant of Jailor, in the case of a prisoner at first released on bail pending the disposal of appeal to the Appellate Court, but dismissal of the appeal or reduction or undergo the remaining portion of the sentence". The contents of the warrant clearly indicate that the warrant is to be issued by the Court confirming the conviction and accused appellant cannot be directed to surrender to the trial Court for issuance of conviction warrant."
11. The law laid down in the case of Mohinuddin Khtubuddin, still a good law. It has been candidly observed that the subordinate appellate Court is obliged to secure the presence of the accused before the Judgment is pronounced except for the judgments of acquittal or fine only or attendance is exempted during the trial. In the said Judgment ::: Uploaded on - 04/05/2023 ::: Downloaded on - 04/05/2023 19:20:49 ::: 11 CrRn-3373-22-J.odt in paragraph No. 16, the Sessions Courts were directed to follow the correct procedure in future. However, it appears that the subordinate appellate Courts did not follow the pronouncement of the High Court and adopted distinct practises, did not maintain uniformity in the application of law and spread uncertainty.
12. Section 389 of the Code of Criminal Procedure (for short, "Cr.P.C".) deals with the suspension of the sentence. The Section opens with the word "pending an appeal by the convicted person" That indicates that the appellate Court may, for reasons to be recorded in writing, suspend the sentence pending the appeal preferred by the convict. The Section, in specific words, clarified that the appellate Court may suspend the sentence pending the appeal only. The suspension remains during the pendency of the appeal. As soon as the appeal is disposed of, the suspension order merges in the final Judgment and order.
13. As far as the suspension of the sentence, Sub-Section 3 of Section 389 of the Code of Criminal Procedure deals with the suspension of the sentence. The said Section provides that the trial court may suspend the sentence after conviction where the accused was on bail and sentenced to suffer imprisonment not more than three ::: Uploaded on - 04/05/2023 ::: Downloaded on - 04/05/2023 19:20:49 ::: 12 CrRn-3373-22-J.odt years or the offence is bailable. To suspend the sentence, the accused has to satisfy the Court that he intends to prefer the appeal against the Judgment of conviction. The trial court in such a situation may suspend the sentence for such period as he will afford sufficient time to present the appeal and obtain the orders of the appellate Courts. Section 389 of Cr.P.C. does not confer power upon the subordinate appellate Court to suspend the sentence on confirming the Judgment of conviction of the trial Court.
14. The Hon'ble Bombay High Court Nagpur Bench in the case of Dilip S/O Ramchandra Umare Vs. State of Maharashtra 1996 Cri. L. J. 721 has observed in paragraph No.2 that;
"in large number of cases, it has been found that the Sessions Judge, Additional Sessions Judge, the Joint Sessions Judge, or lower appellate Court as the case may be, suspends the sentence for some time even after disposal of appeal against the conviction and sentence to enable the accused to prefer revision application before the High Court and obtain appropriate orders. The Court of criminal Procedure does not confer any inherent jurisdiction on the lower appellate Court to directly or indirectly suspend the sentence after decision of the appeal. Nor there any specific power conferred on the lower appellate Court under Code of Criminal Procedure to suspend the sentence on decision of appeal against the Judgment of conviction and sentence.::: Uploaded on - 04/05/2023 ::: Downloaded on - 04/05/2023 19:20:49 :::
13 CrRn-3373-22-J.odt Obviously, the power of suspension of sentence can only be exercised if the Code of Criminal Procedure so permits not otherwise. There is neither any power of suspension of sentence nor grant of bail implicit the lower appellate Court after decision of the appeal against the Judgment of the conviction and sentence nor such power is inherent. Once the lower appellate Court hears and decide the appeal against the conviction and sentence passed by the trial Court, it becomes functus officio and ceases to have any power in the matter to suspend the sentence, or grant bail even temporarily to enable the accused to approach High Court by filing revision application and to obtain appropriate orders from High Court".
15. Chapter XXXII of the Code of Criminal Procedure deals with execution, suspension, remission and commutation of the sentence. Section 418 of the Code of Criminal Procedure 1973 pertains to the execution of a sentence of imprisonment that reads thus;
"(1) Where the accused is sentenced to imprisonment for life or to imprisonment for a term in cases other than those provided for by section 413, the Court passing the sentence shall forthwith forward a warrant to the jail or other place in which he is, or is to be, confined, and, unless the accused is already confined in such jail or other place, shall forward him to such jail or other place, with the warrant: Provided that where the accused is sentenced to imprisonment till the rising of the Court, it shall not be necessary to prepare or ::: Uploaded on - 04/05/2023 ::: Downloaded on - 04/05/2023 19:20:49 ::: 14 CrRn-3373-22-J.odt forward a warrant to a jail, and the accused may be confined in such place as the Court may direct.
(2) Where the accused is not present in Court when he is sentenced to such imprisonment as is mentioned in sub-
Section (1), the Court shall issue a warrant for his arrest for the purpose of forwarding him to the jail or other place in which he is to be confined; and in such case, the sentence shall commence on the date of his arrest."
16. The above Section provides that soon after the accused has been sentenced to suffer imprisonment, the Court passing sentence shall forthwith send the convict to jail with a conviction warrant for the execution of the sentence. Sub Section (2) is specific that where the accused is absent, the Court shall issue a warrant of his arrest to forward him to the jail, and the sentence shall commence on the date of his arrest. Section 418 of the Code of Criminal Procedure did not contemplate the postponement of the surrender of the accused for the execution of the sentence. Reading the Section between the line, it is clear that the Court convicting the accused cannot defer the execution of the sentence where the accused is present before the Court.
17. The Punjab and Haryana High Court in Krishna Kumar Jain Versus State of Punjab in CRMM34325-2015 in CRR-3960-2015 ::: Uploaded on - 04/05/2023 ::: Downloaded on - 04/05/2023 19:20:49 ::: 15 CrRn-3373-22-J.odt (O&M), relying on the case of Moinoddin S/o Khodboddin Versus State of Maharashtra, of Bombay High Court (supra) has observed that;
"The only course available, therefore, would be to execute the order of conviction confirmed by it, leaving the accused to obtain suspension of sentence and bail from the High Court by preferring appropriate revision."
18. The Rajasthan High Court in the case of Ramesh Kumar Sharma Vs. Subhash Chand Gupta Criminal Revision Petition No. 1096 of 2011 has taken the view that "After passing of the Judgment in appeal, for filing revision petition before the High Court under Section 397 read with Section 401 of the Cr.P.C., the appellate Court has given discretion to exercise the power as provided under Section 389(3) of the Cr.P.C., therefore, the appellate Court has no option expect to take the accused in custody and send him to jail to serve the sentence."
19. The Rajasthan High Court again in the case of Mohammad Yusuf Vs. State of Rajasthan through P.P. Criminal Revision Petition No. 1148/2010, followed the principles laid down in the case of Ramesh Kumar Sharma Vs. Subhash Chand Gupta (supra) and vide its order dated 12.09.2011 has held that in the absence of surrender of the accused before the appellate Court the revision petition is not ::: Uploaded on - 04/05/2023 ::: Downloaded on - 04/05/2023 19:20:49 ::: 16 CrRn-3373-22-J.odt maintainable and subordinate appellate Court has no option but to take the accused in custody and send him to jail to serve the sentence.
20. The Delhi High Court in Pritika Fashions Pvt. Ltd and others Vs. State and others Cri. Rev. Petition 629/2014 has observed that;
"Appellate Court ought to have passed necessary order after the dismissal of the appeal regarding the custody of the appellant. However, after the passing of the Judgment on 29.08.2014 neither petitioner No.2 was taken into custody by the Appellate Court nor he surrendered nor was protected by the order of any Court from his arrest and was roaming free despite having been convicted by two concurrent judgments of the conviction. The Court cannot be helpless in such a situation and allow the convict to make a mockery of the criminal system."
21. Reading Section 353 and Section 418 of the Cr. P. C. together and above case laws it is explicit that the trial Court or subordinate appellate Court cannot not pronounce the Judgments without securing the presence of accused excepting his presence was exempted during trial in exceptional circumstances and the subordinate appellate Court cannot direct the accused to surrender before the trial Court. In no case, the subordinate appellate Court shall suspend the sentence or ::: Uploaded on - 04/05/2023 ::: Downloaded on - 04/05/2023 19:20:49 ::: 17 CrRn-3373-22-J.odt grant bail directly or indirectly. Accordingly, points nos. (i) to (ii) have been answered in negative.
22. It has been experienced that the subordinate appellate Courts erroneously suspend the sentence and continue the surety bond without the consent of the surety. In view of such an erroneous practice, the following questions need discussion as it is relevant to the various questions raised in this case.
a) Whether cancellation of bail after the termination of the trial obligatory?
b) Can the Court, after terminating the trial into conviction, without the consent of the surety, continue the surety bond?
c) What is the life of a surety bond?
23. Section 441 of the Code of Criminal Procedure pertains to bond of accused and sureties that provides before any person is released on bail or released on his own bond, for such amount determined by the Court that shall be executed by such person. When he is released on bail, the Court may ask for one or more sufficient sureties. Such surety shall continue so to attend until otherwise directed by the police officer or the Court, as the case may be.
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24. Bail is a mechanism used to ensure that the accused is present before the Court and available for trial. Sometimes Court may release the accused to secure his presence for the trial on his own bond, and sometimes may ask for the furnishing surety. Usually, a third person ensures the Court by executing his surety bond to keep the accused present during the trial. The surety has to submit the declaration as per Section 441-A of the Code of Criminal Procedure for whom he has stood surety by giving all the relevant particulars. A Surety bond executed by the surety under Section 441 of the Code of Criminal Procedure is an undertaking to keep the accused present during the trial. The undertaking is binding upon the surety. Where the accused remain absent, in that circumstance, the Court may forfeit the surety bond. Where the bond has been forfeited for breach of condition to appear by the accused, the Court may impose the penalty, and if the penalty is not paid, Court may proceed to recover the same as such penalty or fine imposed by which under this code. It has been further provided in sub-section (2) of 446 of the Code of Criminal Procedure that where such penalty is not paid by the accused and cannot be recovered in the manner aforesaid, a surety shall be liable to imprisonment in the civil jail for a term which may extend to six months. The surety is bound by the terms of the bond. Therefore, it has ::: Uploaded on - 04/05/2023 ::: Downloaded on - 04/05/2023 19:20:49 ::: 19 CrRn-3373-22-J.odt to be construed strictly. In other words, it may be stated that liability incurred by the surety under the bond on account of the non- appearance of the accused must be imposed against the surety.
25. The Hon'ble Supreme Court in the case of State of Maharashtra Vs. Dadamiya Babumiya Sheikh A.I.R. 1971 S.C. 1722. It has been observed in paragraphs No. 7 and 8 as under;
"7. A surety bond is a contract and it is a question as to how far its terms can be considered to have been varied by any unilateral act. Each bond, it may be pointed out, has to be construed on its own terms. But in construing the terms of a surety bond for the production of an accused person, the purpose and object of executing it must be kept in view. Such a bond is executed for the purpose of ensuring the presence of the accused concerned in Court in which he is standing his trial for a criminal offence at the hearing of the case. But for the execution of such a bond, the accused would have to remain in custody so that the trial may proceed smoothly.
8. Looked at from this point of view, surety bonds in criminal cases must be held to be designed to an extent to serve a public purpose. In some cases, it is of course said that surety bonds call for a strict construction but the construction must not be so unduly strained as to result in defeating its essential purpose. Each bond has of course to ::: Uploaded on - 04/05/2023 ::: Downloaded on - 04/05/2023 19:20:49 ::: 20 CrRn-3373-22-J.odt be construed on its own terms, subject to what has just been stated."
26. Schedule II of the Code of Criminal Procedure relates to bond and bail bond after arrest under warrant, and the second part of that form is the declaration by the surety. The said form binds a surety to keep the accused present before the Court to answer the charge on which he has been arrested and shall continue to attend until otherwise directed by the Court. As soon as the accused is convicted, he has to surrender his bond, and the Court has to send the accused under warrant to jail for the execution of the sentence subject to the order of suspension of the sentence as provided in Section 389 of the Code of Criminal Procedure.
27. It is explicit from the above that normally, the sureties are furnished to ensure the presence of the accused for trial. Therefore, Court is of the view that as soon as the trial culminates into the conviction, the contract of the surety stands impliedly cancelled, and it is obligatory upon the Court to pass an order cancelling the bail and surety bond.
28. No person can be forced to stand surety for the accused. It is a voluntary act and a contract. Section 444 of the Code of Criminal ::: Uploaded on - 04/05/2023 ::: Downloaded on - 04/05/2023 19:20:49 ::: 21 CrRn-3373-22-J.odt Procedure speaks of the discharge of surety. The surety has the discretion to apply to the Magistrate to discharge the bond either wholly or so far as to relate to the accused. On such application being made, the Magistrate shall issue his warrant of arrest directing that the person so released be brought before him. On the appearance of such a person pursuant to the warrant or voluntary surrender, the Magistrate shall direct the bond to be discharged either wholly or so far as relates to the applicant and shall call upon such accused to find other sufficient sureties, and, if he fails to do so, may commit him to jail. Section 444 of the Code of Criminal Procedure gives discretion to the surety to withdraw his surety bond. Soon after the surety applies for discharge, the Court issue the arrest warrant to the accused and on his production, the surety stands discharged.
29. Surety bond is just like a surety under Section 135 of the Indian Contract Act where the purpose is served; impliedly the surety stands discharged. Reading section 441 with 444 of Cr.P.C., it can safely be said that the life of a surety bond is either till the trial terminates or the Court discharges the surety. The Court is of the view that on culminating the trial into conviction, the Court shall invariably discharge the surety. The reason is obvious if the surety furnishes the surety, it is a charge over his immovable property, and the charge is ::: Uploaded on - 04/05/2023 ::: Downloaded on - 04/05/2023 19:20:49 ::: 22 CrRn-3373-22-J.odt never for indefinate period. The Court convicting the accused is legally bound to send the accused, immediately after conviction under a conviction warrant, to jail for the execution of the sentence. Then, continuing the bail and surety after conviction would be illogical. Since standing surety for the accused is voluntary, the Court, after the period of the surety bond, cannot on its own continue the surety on terminating the trial.
30. Now turn towards the main question, whether in every case, the Revisional Court shall suspend the sentence without his/her surrender or be taken into custody for sending him to jail for the execution of sentence as a matter of right.
31. The learned counsel for the applicant has heavily relied upon the view taken by this Court in the case of Ramesh Murlidhar Sharma Vs. State of Maharashtra and another (Criminal Revision Application No. 42 of 2019), and in Popat Dattatraya Ajabe and others Vs. The State of Maharashtra, (Criminal Application No. 1238 of 2020 in Criminal Revision Application No. 89 of 2020, dated 03.08.2020) and Fazal Khalil Ahemad Shaikh Vs. Nandkishor Ramnivasji Agrawal and another Criminal Appplication No. 2743 of 2019 in Criminal Revision Application No. 323 of 2019 dated 12 th June 2020 in which Popat's ::: Uploaded on - 04/05/2023 ::: Downloaded on - 04/05/2023 19:20:49 ::: 23 CrRn-3373-22-J.odt case is follow and claimed that the revisional Court shall suspend the sentence and grant the bail to the applicant not surrender for the execution of sentence or confined under Section 397 of the Cr.P.C.
32. In reply, the learned A.P.P argued that the correct preposition of law was not brought to the notice of this Court while considering the issue of suspension of sentence in the above case laws.
33. The learned counsel for the applicant has vehemently argued that in the above cases, this Court has correctly followed the ratio laid down in the case of P. Ibrhaim Vs. State of Kerala (1979 KNT 856).
34. The relevant paragraphs from the case of Popat (supra) are reproduced to describe the view expressed by the learned single Judge. That reads thus:-
"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. Krishnawamy, reported in 2006 Cri.L.J. 4105, ::: Uploaded on - 04/05/2023 ::: Downloaded on - 04/05/2023 19:20:49 ::: 24 CrRn-3373-22-J.odt 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 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 pirnciples of law laid down by the Hon'ble Supreme Court of India reported in Bihari Prasad Singh Vs. 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 ::: Uploaded on - 04/05/2023 ::: Downloaded on - 04/05/2023 19:20:49 ::: 25 CrRn-3373-22-J.odt 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) ha held in the decision reported in Ibrahim Vs. State of Kerala 1979 KLT 857 as follows :
2. Section 397, 399 and 401 of the Code dealt 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 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 passed, 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 ::: Uploaded on - 04/05/2023 ::: Downloaded on - 04/05/2023 19:20:49 ::: 26 CrRn-3373-22-J.odt 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 disconjuctively 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 ::: Uploaded on - 04/05/2023 ::: Downloaded on - 04/05/2023 19:20:49 ::: 27 CrRn-3373-22-J.odt can be suspended, for that will be acting against the dear 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 accused 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".
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28 CrRn-3373-22-J.odt "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 the applicants on bail. .. .. .. "
35. In the case of P.Ibrhaim (supra), the Kerala High Court has discussed Sections 397, 399 and 401 of the Code of Criminal Procedure and interpreted the words from Section 397 of Cr.P.C., i.e. "direct that the execution of any sentence or order be suspended" and held that 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, that will be acting against the clear and express provisions contained in Section 397(1) of the code, (quoted above), enabling the ::: Uploaded on - 04/05/2023 ::: Downloaded on - 04/05/2023 19:20:49 ::: 29 CrRn-3373-22-J.odt revisional Court to exercise the twin jurisdiction vested in it in cases where the accused is in confinement and not in confinement. It has also been observed that the revisional Court cannot insist upon the confinement of the accused before ordering the suspension of sentence or order passed against him.
36. In paragraph No. 6 of P. Ibrahim's case, the Kerala High Court has observed thus;
"6. I should not be understood to hold that under no circumstances can a Revisional Court insist upon the attendance of an accused or his surrender to his bail before sentence is suspended. In cases where the Appellate Court after pronouncing Judgment directs that the accused's bail bonds are cancelled, the accused has necessarily to surrender to his bail before he can obtain an order of suspension of his sentence, from the Revisional Court. And in so doing, the Revisional Court has necessarily to release the petitioner on bail in addition to suspending the sentence passed against him, which means that if there is no direction by the Appellate Court for cancellation of the bail bonds, there is no necessity to release the accused on bail, because there is no need for him to surrender to his bail. Since Section 397 visualizes exercise of dual powers by the Revisional Court, to suspend the sentence and to release the accused on bail, it presupposes the fact that in one case, the ::: Uploaded on - 04/05/2023 ::: Downloaded on - 04/05/2023 19:20:49 ::: 30 CrRn-3373-22-J.odt accused is not in confinement while in the other he is confinement."
37. The observations are explicit that if the appellate Court cancel the bail bonds, the accused, seeking suspension of the sentence before the Revisional Court, has to surrender his bail bonds. The interpretation of section 397 of Cr.P.C. does not indicate that the sentence should be suspended where the accused is not confined in each case.
38. In the above case, the case of Bihari Prasad Singh Vs. State of Bihar (2000)SCC (Cri) 1380 has been referred. In the case of Bihari Prasad Singh, the Patna High court had refused to hear or entertain the matter on the ground that the accused had not surrendered. Considering the facts, the Hon'ble Supreme Court held that under the provisions of the Criminal Procedure Code, there is no such requirement though many High Courts in this country have made such provisions in the respective rules of the High Court. There were no rules as such 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. ::: Uploaded on - 04/05/2023 ::: Downloaded on - 04/05/2023 19:20:49 :::
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39. The observations of the Hon'ble Supreme Court in the case of Bihari Prasad, were that in the absence of any Rules framed by the High Court, the High Court cannot reject the revision petition solely on the ground that the accused did not surrender after the confirmation of the sentence of conviction by subordinate appellate Court.
40. The learned APP relying on the case of Vivek Rai and another v High Court of Jharkhand through Registrar General and others 2015 AIR (SC) 1088, has vehemently argued that in the absence of Rule, as such, the sentence cannot be suspended as a matter of course in every case. Suspension of the sentence is a matter of discretion. The Rule framed by the Jharkhand High Court regulating the procedure held not against the provisions under Cr.P.C. dealing with the question of suspension of sentence.
41. Rule 159, framed by the Jharkhand High Court, was regarding non-posting the Revision for admission unless the petitioner has surrendered to the custody in the concerned Court. The said Rule 159 read as under;
"In the case of Revision under Sections 397 and 401 of the Code of Criminal Procedure, 1973 arising out of conviction and sentence of imprisonment, the petitioner shall state whether the petitioner shall be accompanied ::: Uploaded on - 04/05/2023 ::: Downloaded on - 04/05/2023 19:20:49 ::: 32 CrRn-3373-22-J.odt 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 specified period. On sufficient cause shown, the Bench may grant such time and on such conditions as it thinks and proper. No such revision shall be posted for admission, unless the petitioner has surrendered the custody in the concerned court."
42. Paragraph no. 9 of the above pronouncement appears relevant that reads thus;
"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 cannot thus be argued that prohibition against posting of a revision petition for admission apples even to a situation where on an application of the petitioner, on a case being made out, the Court, in exercise its inherent power, consider it appropriate to grant exemption 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 the Courts exercise of such jurisdiction, has to be assumed in the impugned Rule."::: Uploaded on - 04/05/2023 ::: Downloaded on - 04/05/2023 19:20:49 :::
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43. In paragraph no.19 of the said Judgment it has been observed thus;
"19. The provisions of Section 389 Cr.P.C., and that of the Supreme Court Rules 1966 are independent provisions and will have to be considered on their own standing."
44. In the above case it has been held that the object of the Rule is to ensure that a person who has been convicted by two courts obeys the law and does not abscond. Similar is the object of Sections Section 387 r/w section 353(3) and (6) and 418 of Cr.P.C. It has also been held that the Rule framed by the Jharkhand High Court thus cannot be held arbitrary in any manner. The said Rule was framed to regulate the Procedure of the Court and does not, in any manner, conflict with the substantive provisions of the Cr.P.C.
45. The Bombay High Court has no rule like Jharkhand High Court. However, this is not a case where the registry did not list the Revision application under Section 397 r/w 401 of Cr.P.C., for admission nor refused to register the Revision.
46. In view of the matter, it should be examined whether suspension of sentence under section 397 Cr.P.C. without his arrest for sending him for executing the sentence is obligatory.
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47. Section 401 of the Code of Criminal Procedure speaks of the High Court's powers of Revision.
48. The words in section 397 Cr.P.C., as regards the suspension of the sentence, the words used are "and may" when calling for such record, direct that the execution of any sentence or order be suspended, The words "may" gives the answer Whether suspension of sentence under section 397 of Cr.P.C is mandatory.
49. The interpretation of the word 'may' mean it can never mean must. In Rangaswami Textile Commissioner v Sagar Textile Mills (p) Ltd AIR 1977 SC 1516, the Hon'ble Supreme Court held that when the context shows that the power is coupled with an obligation, the word "may" which denotes discretion should be construed to mean a command. It is also the well-known Rule of interpretation that 'may' will not be construed as mandatory if such a construction would defeat the purpose of the Act or would lead to unjust results.
50. Under the revisional jurisdiction under Section 401 of the Code of Criminal Procedure, the High Court may, at its discretion, exercise any powers under sections 386, 389, 390 and 391 or on a Court of Session by section 307 of the Cr.P.C. Therefore, the Court thinks that Section 401 is in aid to Section 397 of Cr.P.C.
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51. The Hon'ble Supreme Court, in the case of Vivek Rai and Another (supra) has discussed the ratio laid down in the case of Mayuram Subramanian Srinivasan, AIR 2006 SC 2449, in paragraph No. 18 of the said Judgment; it has been observed thus;
"The basic fallacy of Ms. Jaiswal's submission is that it overlooks the question that grant of bail in the appeal presupposes surrender by the convicted person."
52. In the case of Vivek Rai and another (supra) in paragraph No.9, it has been observed that;
"it was not disputed that 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."
53. In paragraph No.4 of Vivek Rai (supra), it has been further observed that;
"It is well known practice that generally a revision against conviction and sentence is filed after an appeal is dismissed and the convicted person is taken into custody in Court itself."
54. Reading the ratio laid down in Vivek Rai, (in the absence of a Rule like the Jharkhand High Court) and Sections 389, 397 and 401 of ::: Uploaded on - 04/05/2023 ::: Downloaded on - 04/05/2023 19:20:49 ::: 36 CrRn-3373-22-J.odt Cr.P.C. together, the Court is of the view that Section 389 Cr.P.C. regulate the procedure for suspending the sentence. Provision of suspension in Section 397 cannot destroy the purpose of Sections 384 and 418 of Cr.P.C. therefore, the word 'may' has been used in section 397 Cr.P.C. It is clear that in each case court is not supposed to suspend the sentence under Section 397 Cr.P.C. It should be exercised in exceptional circumstances. The different sections of the same Act cannot be interpreted in conflict with each other. The rule of interpretation of statute is the statute must be read as a whole and one provision of the Act should be contrued with reference to other provision in the same Act so as to make a consistent enactment of the whole statute. [extracted from the box "Principles of Statutory interpretation. By Justice G.P. Singh 3 rd Edition 2012 published by Lexis Nexis Page No. 144 clause(6)]. Therefore, Sections 353, 418, 397, 389 of the Cr.P.C shall be read harmoniously.
55. In the earlier three orders placed on record the accused succeeded in securing the suspension of the sentence as a matter of course. This Court came across that in some cases, after the confirmation of conviction, the accused is sent to jail for the execution of sentence under a conviction warrant and in some cases, the Subordinate appellate Courts have either granted time to appear ::: Uploaded on - 04/05/2023 ::: Downloaded on - 04/05/2023 19:20:49 ::: 37 CrRn-3373-22-J.odt before the trial court or directed the trial court to take necessary action. In some of the cases the subordinate appellate Courts are suspending the sentence. This inequality before the law created a mess, and no uniformity in applying the law has been maintained. In such situations treating the accused differently by different Court of same rank needed to be addressed.
56. In view of the above discussion, the Court is of the opinion that the in the absence of Rules as framed by the Jharkhand High Court regarding posting of the Revision without surrender of the accused, Sections 418 and 389 of Cr.P.C. regulate the procedure for dealing with the Revision applications preferred under Section 397 of Cr.P.C. and the accused without surrender or taken in to custody for the execution of sentence cannot claim suspension of sentence under Section 397 of Cr.P.C as matter of right.
57. With respect, I differ with a view taken by the learned Coordinate Bench of this Court in the cases relied upon by the applicants. However, the judicial discipline shall be maintained as regards differing with the earlier view of the coordinate Bench. In this regard, the Hon'ble Supreme Court in Valliamma Champaka Pillai Vs. Sivathanu Pillai And Others 1979 AIR 1980 SCR (1) 354 h eld that it is well settled that the decision of one High Court is not binding ::: Uploaded on - 04/05/2023 ::: Downloaded on - 04/05/2023 19:20:49 ::: 38 CrRn-3373-22-J.odt precedents upon another High Court and, at the most, can only have persuasive value. However, at the cost of repetition, it must be emphasized that the decision of another High Court rendered in the context of the All India Act would have persuasive value, and normally it would maintain uniformity and certainty. However, the Courts prefer the law laid down by their own Court and adopt the view of the High Court.
58. It is explicit from the above observations that where one High Court renders the decision in the context of the All India Act, normally, to maintain uniformity and certainty, the other Court adopt the view of the High Court. In view of the preposition of law discussed above, it would not be appropriate to pass the different orders in these matters. The issue raise can be more advantageously heard by the Division Bench for decision to resolve the issue. Thus, the following question is formulated for reference to the Hon'ble Division bench. Question : Whether in the absence of a Rule regulating the procedure framed by the High Court for admission or listing the Revision without surrender, the High Court under revisional jurisdiction under Section 397 of Cr.P.C. shall suspend the sentence without the surrender or arrest of the accused for sending him to jail for the execution of the sentence, as a matter of course?
59. The Registrar (Judicial) Aurangabad is requested to place the matter before the Hon'ble the Chief Justice of Bombay High Court in ::: Uploaded on - 04/05/2023 ::: Downloaded on - 04/05/2023 19:20:49 ::: 39 CrRn-3373-22-J.odt accordance with Rule 7 Chapter I of the Bombay High Court Appellate Side Rules, 1960.
60. The Court has observed the disparity about suspension of sentence, delivering the judgments without securing the presence of accused before pronouncing the judmgnet etc. in the first part of this judgment. Hence, to avoid the disparity henceforth, the learned Registrar (Judicial), High Court Bombay, Bench at Aurangabad, is requested to circulate this order to all Judicial Officers throughout the State through the learned Principal District and Sessions Judges.
61. Since the issue as regards the suspension of sentence under section 397 Cr. P.C. has been referred to the larger Bench, till then, the sentence is temporarily suspended, and the accused be released on temporary bail on executing P.B. and S.B. of Rs.50,000/- with one solvent surety in like amount.
62. Bail before the Subordinate Appellate Court.
63. List the matter after the judgment on the reference by the Division or larger Bench, as the case may be.
( S. G. MEHARE ) JUDGE ysk ::: Uploaded on - 04/05/2023 ::: Downloaded on - 04/05/2023 19:20:49 :::