Madras High Court
M.Senthilkumar vs P.Ramalingam on 18 January, 2016
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 18.01.2016
CORAM
THE HONOURABLE MR.JUSTICE M.VENUGOPAL
Crl.R.C.(MD)No.588 of 2015
and
M.P.(MD).No.1 of 2015
M.Senthilkumar
... Petitioner/Appellant/Accused
Vs.
P.Ramalingam ...
Respondent/Respondent/Complainant
Prayer: Criminal Revision Petition is filed under Sections 397 r/w. 401 of
Cr.P.C., to call for the records and set aside the orders passed in
Crl.M.P.No.1305 of 2015 in C.A.No.81 of 2015 by the Principal Sessions Judge,
Karur dated 01.12.2015 and suspend the sentence passed in C.C.No.560 of 2013
dated 13.05.2015 on the file of the Judicial Magistrate, Fast Track Court at
Magisterial Level, Karur.
!For Petitioner : Mr.E.K.Kumaresan
^For Respondent : Mr.R.Jothiramalingam for
Mr.V.Janakiramulu
:ORDER
The Revision Petitioner/Appellant/Accused has filed the instant Criminal Revision Petition as against the order dated 01.12.2015 in Crl.M.P.No.1305 of 2015 in C.A.No.81 of 2015 passed by the Learned Principal Sessions Judge, Karur.
2. The Learned Principal Sessions Judge, Karur, on 01.12.2015 in Crl.M.P.No.1305 of 2015 in C.A.No.81 of 2015 had observed the following:
?Heard both sides.
The learned counsel for the petitioner submitted that the petitioner has been convicted by the Learned Judicial Magistrate (FTC), Karur on 12.05.2015 in C.C.No.560 of 2013 and the petitioner was sentenced to undergo simple imprisonment for six months for the offence under Section 138 of N.I. Act. According to him, in the absence of the accused, the judgment and order of sentence was passed by the trial Court and immediately, the trial Court issued a NBW to secure the petitioner to serve the period of sentence. He therefore prayed for suspension of the sentence passed by the trial Court till the disposal of the criminal appeal.
The respondent has raised objection for the petition and contended that it is for the petitioner to move the trial Court to get the appropriate relief on surrender of the accused and that this petition is not maintainable before this Court.
Considering the facts and circumstances of the case, this Court directs the petitioner to surrender before the trial Court, that on such surrender, the trial Court is directed to dispose of the application under Section 70(2) Cr.P.C. in accordance with law. With the above direction this petition is dismissed.?
3. Challenging the validity, correctness and legality of the order dated 01.12.2015 in Crl.M.P.No.1305 of 2015 in C.A.No.81 of 2015 (filed by the Revision Petitioner/Appellant) passed by the Learned Principal Sessions Judge, Karur, the Revision Petitioner has filed the present Criminal Revision Petition contending that the appellate Court had failed to consider that it has necessary power to suspend the sentence in terms of Section 389(1) of Cr.P.C., and the offence is also appealable one.
4. The Learned Counsel for the Revision Petitioner urges before this Court that the appellate Court had failed to consider that the Petitioner has a good case and he was not in a position to cross-examine the respondent and adduce evidence before the trial Court.
5. It is the stand of the Revision Petitioner that the appellate Court had failed to consider the reason for his non-appearance was only due to his illness.
6. The Learned Counsel for the Revision Petitioner/Accused takes a plea that in case of summary procedure, where law provides for adjudication of case in the absence of an accused, the trial Court should have stipulated a time frame within which an accused should prefer an appeal or surrender to serve the substantive sentence and in fact, the trial Court had committed mistake in issuing Non-Bailable Warrant on the date of passing the judgment in C.C.No.560 of 2013 dated 12.05.2015. That apart, the appellate Court, while dismissing the Crl.M.P.No.1305 of 2015 in C.A.No.81 of 2015, mainly on the ground that Non-Bailable Warrant is pending against the Revision Petitioner/Accused.
7. Yet another stand taken on behalf of the Revision Petitioner is that the trial Court ought to have issued notice to the Petitioner/Accused before delivering the judgment in C.C.No.560 of 2013 on its file dated 12.05.2015 and the pronouncement of judgment, in the absence of Learned Counsel had caused irreparable loss and hardship to the Revision Petitioner /Appellant/Accused.
8. At this stage, it is worthwhile for this Court to cite the decision (R.Sarathkumar v. The Inspector of Police, C-9, Police Station, Neelankarai, Chennai) reported in 2004 MLJ(CRL.) 421, whereby and where under it is observed and held as follows:
?Non-bailable warrant issued without a preceding bailable warrant where the offence is bailable, is not in accordance with the scheme of the criminal procedure code and hence, illegal. Therefore, while exercising the power conferred under Section 87, Cr.P.C., and issuing a warrant, in a case of bailable offence, the Magistrate shall always issue at the first instance a bailable warrant(including the endorsement provided under Section 71, Cr.P.C.). If the person does not appear before the Court even after execution of bailable warrant, then, and only then the Magistrate may issue a non- bailable warrant. Therefore, in all cases under Sec.138 of the Negotiable Instruments Act, though it is possible or there is no legal infirmity for the Magistrate to issue a non-bailable warrant for the reasons to be recorded in writing, yet, considering the bailable nature of the offence, under Section 138 of the Negotiable Instruments Act the Magistrate shall always issue ?bailable warrant? at the first instance. For the above reasons there appears no reason or no circumstances warranting the issue of non-bailable warrant in this case.?
9. Apart from that, in the decision (Sundar alias Sundararajan v. The Inspector of Police, All Women Police Station, Palayamkottai, Tirunelveli District) reported in 2001 MLJ (Crl.) 563, Special Page 566 at paragraph Nos.6 and 7, wherein it is observed and held as follows:
?6.If the accused appears before the appellate Court pursuant to the warrant pending against him, the accused is deemed to have come to the judicial custody, which amounts to confinement.
7.Therefore, in the peculiar circumstances of this case, in case, the accused appears before the appellate Court, the appellate Court is directed to recall the warrant and the moment the warrant is recalled, the execution of the sentence passed against the accused, shall stand suspended and the appellate Court is directed to release the petitioner on bail on his executing a bond for Rs.5,000/- with two sureties for the like sum to its satisfaction pending disposal of the revision.?
10. In fact, it is to be pointed out that Section 255 of Cr.P.C., speaks of 'Acquittal or Conviction'. Also Section 353 of Cr.P.C., under the caption judgement (5,6), which reads as under:
?(5)If the accused is in custody, he shall be brought up to hear the judgment pronounced.
(6)If the accused is not in custody, he shall be required by the Court to attend to hear the judgment pronounced, except where 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, in order to avoid undue delay in the disposal of the case, pronounced the judgment not withstanding their absence.?
11. As a matter of fact, the ingredients of Section 353 of Cr.P.C., provides the manner in which the judgment is to be delivered. Section 354 of Cr.P.C., describes what judgment should contain, etc., where the case is posted for judgment, the trial of the case stands terminated within the meaning of Section 353 of Cr.P.C. It is to be remembered that Judgment shall be pronounced immediately after conclusion of the trial or at some subsequent time of which notice shall be given to the parties or their pleader which specified in Clause (a), (b) and (c) of Sub-Section (1) of Section 353 of Cr.P.C.
12. Besides the above, Section 70 of Cr.P.C, speaks 'Form of warrant of arrest and duration'. It is to be noted that even if the learned Advocate is not present, but the accused is present, the Court would decide the application for recall of warrant on merits, as per decision (Deivasigamani v. State, 2003 MLJ(Crl.) 201(Mad)). Indeed as per Section 70(2) of Cr.P.C., the Judicial Magistrate has all necessary powers to consider the orders as regards the issuance of a 'non-bailable warrant'. It is for the Court, if convinced that the absence of an accused was not wilfull, the warrant should be recalled as per decision (Yogesh Kumar Bhargava v. State of Uttarpradesh) reported in 2001 Crl.L.J, 2835, 2836(All).
13. In this connection, this Court relevantly points out that the Judicial Magistrate under Section 70 of Cr.P.C., can convert a warrant of arrest into a Bailable Warrant. Also that, the warrant once issued is very much alive, until it is cancelled or executed even though it specifies a returnable date as per the decision Inder Mandal reported in AIR 1967 Patna 141, where the issuance of non-bailable warrant is an unwarranted one, the same can be quashed by the Honourable High Court exercising its discretion as per decision H.C.JAIN v. M/s.R.K.SYNTHETICS AND FIBRES PVT. LTD., reported in 1999 Crl.L.J. 2922 (BOM).
14. At this stage, this Court worth recalls and recollect the decision (Deivasigamani and another vs. The State represented by the Inspector of Police, Central Crime Branch, Chennai) reported in (2003)MLJ(Crl.) 201(Mad) whereby and whereunder it is observed and held as follows:
?10.In the case on hand, the petitioners herein were unable to appear before the trial court on 13-08-2002 and given instructions to the counsel and prayed for dispensing with their appearance. Unfortunately, the counsel could not represent the petitioners, with the result Non-bailable warrant was ordered on the same day on 13-08-2002, returnable on 23-08-2002. It is evident that on 23-08-2002 the petitioners have filed an application under Section 70 (2) of Cr.P.C. to recall the warrant. On that day, the counsel for the petitioners herein did not appear when the case was called. Immediately, the same was dismissed after calling, without noting the fact that the petitioners were very much available in the court. The impugned order of remand also disclose the said fact that the petitioners were present along with other accused, but they were remanded to judicial custody consequent to the order of dismissal of their petition to recall the warrant. Apparently, when the petitioners surrendered before the court with an application to recall the warrant, dismissal of the same mechanically without considering it on merits is unreasonable. While so, the remand order passed by the Magistrate is unsustainable. Admittedly, in the impugned order of remand, no reason has been assigned by the learned Magistrate. Admittedly, no witnesses were present on the day of remand. Indeed, the petitioners have proved their bonafide by filing a petition explaining the reason for their non-appearance on 13-08 -2002. PW1 also deposed before the said court that he has no intention to proceed against the petitioner herein as they have already settled the amounts payable by them. Beyond that, the petitioners are all respectable persons occupying higher post in the State Government. While so, without considering the above factors, remanding the petitioners mechanically would amount to exercise of discretionary power in an unjudicial and arbitrary manner. Hence, interference of this Court is very much warranted.?
15. It is to be noted that a warrant remains valid unless it is executed or cancelled. Mere issuance of Non-bailable warrant, in a given case, without taking note of all aspects would not be an exercise of judicial powers as opined by this Court.
16. It cannot be gainsaid that ingredients of Section 389 of Cr.P.C., applies only to the affected person. Sub-Section(1) of Section 389 of Cr.P.C., empowers an appellate Court to suspend execution of sentence or when the affected person is in confinement to grant bail (suspension of the offence being an appealable one or not) pending any appeal before it. The condition precedent for exercise of jurisdiction, by a Court of law is an existence of an appeal, which means a valid appeal presented before the Court. While suspending the suspension of sentence, it is palatable/desirable that an appellate Court imposes a condition of deposit of the compensation amount in Court within certain period. If the fine sum is on the higher side, the Court can direct at least a portion thereto to be remitted. The Appellate Court, under Section 389 of Cr.P.C., while suspending the sentence, can enlarge a person on bail imposing necessary terms.
17. Insofar as the 'relief of suspension of sentence', it is to be mentioned that in respect of Revision against the conviction, an accused need not surrender and undergo confinement for seeking the relief of suspension of sentence pending disposal of the Criminal Revision. However, the Revisional Court may decline to exercise power under Section 397 (1) of Cr.P.C., to suspend the sentence imposed on the accused, considering the merits of each case in respect of the seriousness and gravity of offence and also the incarceration of an accused coupled with etc., as per decision (Markandan vs. Inspector of Police, Deevattipatti Police Station, Salem) reported in 2007(1) MLJ (Crl.) 210 (Mad).
18. Moreover, in the decision (Ibrahim vs. State of Kerala) reported in 1997 KLT 857, at para No.5 it is observed and held as under:
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 relief of suspension of sentence, the Honounrable Mr.Justice Khalid (as he then was) has held in the decision reported in Ibrahim v. State of Kerala 1979 KLT 857 as follows:
?2.Section 397, 399 and 401 of the Code deal with 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 situated 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 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-conjuctively from the words and if the accused is in confinement that he be released on bail or on his own 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 or order, the Court should not only order suspension of the sentence or order by order his release on bail also. Not so, when he is not in confinement. This Section clearly recognised 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 can be suspended, for, that will be acting against the clear 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 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 of 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.?
19. In the upshot of aforesaid detailed discussions and also this Court taking note of the essential fact that in regard to the revision against conviction and sentence for granting the relief of suspension of sentence, the accused need not surrender and undergo confinement and filing of revision without surrendering and confinement is well within the purview of Section 397 (1) of Cr.P.C, this Court, to prevent an aberration of justice and in furtherance of substantial justice, sets aside the impugned order, dated 01.12.2015 in Cr.M.P.No.1305 of 2015 in C.A.No.81 of 2015, passed by the Learned Principal Sessions Judge, Karur. Resultantly, the Criminal Revision Petition succeeds.
20. In the result, the Criminal Revision Petition is allowed and the order dated 01.12.2015 in Cr.M.P.No.1305 of 2015 in C.A.No.81 of 2015 passed by the Learned Principal Sessions Judge, Karur is hereby set aside by this Court for the reasons assigned in this Criminal Revision. The Learned Principal Sessions Judge, Karur is directed to restore Cr.M.P.No.1305 of 2015 in C.A.No.81 of 2015 to file and to dispose of the said Cr.M.P.No.1305 of 2015 in C.A.No.81 of 2015 afresh in the manner known to Law and in accordance with Law, of course after providing enough opportunities to respective parties, by following the principles of natural justice. Liberty is granted to the respective parties to raise all factual and legal pleas at the time of fresh hearing of Cr.M.P.No.1305 of 2015 in C.A.No.81 of 2015. It is open to the Revision Petitioner/Appellant/Accused to file appropriate miscellaneous petition before the trial Court and to seek the relief of recall of warrant/cancelling the warrant in the manner known to Law and in accordance with Law, if she so desires/advised. Consequently, the connected Miscellaneous Petition is closed.
To
1. The Principal Sessions Judge, Karur.
2. The Judicial Magistrate, Fast Track Court at Magisterial Level, Karur..