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Showing contexts for: section 397 of criminal procedure code revision in Praveen Kumar Agarwal vs State Of U.P. And 2 Others on 4 March, 2025Matching Fragments
10. Learned counsel appearing for Opposite Party No.2 has argued that the language used by the rule making authority in Rule 3(4) of Chapter XVIII of Part III of the Rules of 1952, makes it mandatory for the accused to surrender before the court concerned and thereafter to file a criminal revision, against the order of the trial court and the order passed by the appellate court, before this Court under Section 397 Cr.P.C. read with Section 401 Cr.P.C. It has further been argued that the common practice in the Hon'ble Supreme Court as well as in different High Courts across the country is that once a person had been convicted by the trial court and his appeal had been dismissed, he has to surrender before the court concerned and only thereafter he can be allowed to file a criminal revision under Section 397 Cr.P.C. read with Section 401 Cr.P.C. or he can avail any other remedy available under law.
18. I have heard the arguments advanced by the learned counsels appearing for the parties and have perused the documents filed by the parties before this Court.
19. The revisionist has filed the instant criminal revision under Section 397 Cr.P.C. read with Section 401 Cr.P.C. For ready reference, Section 397 Cr.P.C. and Section 401 Cr.P.C. are extracted as under:-
"397. Calling for records to exercise of powers of revision.--(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 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.
30. The Hon'ble Supreme Court in the aforesaid judgment rendered in the case of Vivek Rai (supra) had categorically recorded a finding that it is a well known practice that generally a revision against the conviction and sentence of imprisonment is filed after the appeal is dismissed and the convicted person is taken into custody. The Hon'ble Supreme Court in its judgment had further held that the rules framed by the High Court of Jharkhand for regulating its procedure and thereby providing that for filing a criminal revision under Section 397 Cr.P.C. read with Section 401 Cr.P.C., the convict has to first surrender before the court concerned and only thereafter his criminal revision can be entertained by the High Court, are in no way inconsistent with the provisions made in Section 397 Cr.P.C. and 401 Cr.P.C. The Hon'ble Supreme Court in its judgment had also held that there is always a discretion with the High Court that if in extraordinary circumstances, the convict seeks exemption from surrender, he can file an application before the High Court and that application can always be considered and the discretion can be exercised by the High Court.
31. The High Court of Madhya Pradesh at Indore vide its judgment dated 28.5.2024 rendered in Criminal Revision No.1912 of 2024, Devnarayan Vs. Prateek Goenka, had considered Rule 48 of Chapter X of the Madhya Pradesh High Court Rules and Orders, which is similar to Rule 3(4) of Chapter XVIII of Part III of the Rules of 1952, wherein it is provided that a convict, while filing a criminal revision under Section 397 Cr.P.C. read with Section 401 Cr.P.C., shall give a declaration to the effect that he is in custody or had surrendered after the conviction and it had been held that it is mandatory for a convict to surrender before he avails the remedy of criminal revision under Section 397 Cr.P.C. read with Section 401 Cr.P.C. It has further been held that in exceptional circumstances, the discretion lies with the High Court to grant exemption to a convict from surrender but for that, the convict has to make out a case before the High Court that there are some exceptional circumstances in which he should be granted exemption from surrender. The relevant paragraphs of the judgment rendered by the Madhya Pradesh High Court at Indore in the case of Devnarayan (supra) are extracted as under:-