Madhya Pradesh High Court
Mohammad Ameen Khan vs Mahesh Devnani on 2 July, 2019
HIGH COURT OF MADHYA PRADESH : JABALPUR
S.B : HON.SHRIJUSTICE VISHNU PRATAP SINGH CHAUHAN
Cr.R. NO.1796/2018
Jabalpur, dated 02-07-2019
Dr. Anuvad Shrivastava, learned counsel for the
applicant.
None for the respondent.
Learned counsel for the applicant has filed a compromise application which is pending for consideration.
2. After perusal of this case, it is found that the present criminal revision has been presented before this Court while the applicant is absconding. The applicant has been convicted under Section 138 of Negotiable Instruments Act and sentenced to undergo one year RI (two counts) in connection with two cheques and also ordered to pay Rs.9,92,000/- as compensation to complainant under Section 357(3) of Cr.P.C. The applicant filed Criminal Appeal No.611/2016 before the 1 st Additional Sessions Judge, Bhopal being aggrieved by the conviction and sentence passed by the Court of JMFC. Learned 1 st Additional Sessions Judge, Bhopal vide judgment dated 26 th February, 2018 dismissed the appeal affirming the conviction and sentence passed by the trial Court against the applicant. 2
3. As per Section 393 of Cr.P.C., the judgment of the appellate Court affirming the conviction and sentence passed against the applicant shall become final. Limited scope remained to file criminal revision against the conviction and sentence when it is affirmed by the appellate Court. The applicant has filed this criminal revision before this Court, but, it is found that after passing the judgment by the appellate Court dated 26 th February, 2018 the applicant was not sent to jail custody because he was not present before the appellate Court nor surrendered before the trial Court as well as before the appellate Court and remained absconded not obeying the order passed by the trial Court as well as by the appellate Court.
4. Chapter-10 Rule 48 of the High Court of Madhya Pradesh Rules, 2008 reads as under :
"48. A memorandum of appeal or revision petition against conviction, except in case 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 surrender after the conviction.3
Where the sentence has been so suspended, the factum of such suspension and its period shall be stated in 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 persons acquainted with the facts of the case."
5. A bare reading of the rules, no revision shall be entertained against any conviction and sentence if the applicant is absconded and not obeying the order of trial Court as well as appellate Court. During absconding of the applicant, revision is not tenable before this Court. The applicant has not filed any application to the effect that the applicant due to some disability could not appear before the Court and made a prayer to entertain the revision in the 4 absconding stage of the applicant. Meaning thereby the applicant is not obeying the law. Legal maxim Dura Lex Sed Lex, which means "it is harsh, but it is the law", stands attracted in the present situation. No doubt, the law may be harsh but it should be obeyed by the parties and the counsel who drafted and submitted such type of revision which is not as per the law, should point out to the parties about bar/rider and should direct to obey the law first and then proceed further.
6. When this revision is not maintainable ab initio, no further proceeding can be considered without admission of this revision. This Court also pointed out in the earlier order dated 02/05/2018 in this regard and dismissed the application (I.A. No.6242/2018) filed for suspension of sentence and grant of bail and considered that the applicant should surrender first before the trial Court. However, till now the applicant has not surrenderred before the trial Court and not obeying the judgment of trial Court as well as appellate Court. He is again and again flouting the law.
7. In the same circumstances, this Court in the case of Deepak Sahu and others Vs. State of M.P., 2012(3) MPLJ 5 534 has 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.
8. In view of the aforementioned discussions and the above legal preposition, the revision sans merit and the same is hereby dismissed.
(Vishnu Pratap Singh Chauhan) Judge ts Digitally signed by TULSA SINGH Date: 2019.07.05 15:15:45 +05'30'