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2020 (11) TMI 29 - HC - Indian LawsDishonor of Cheque - whether revision application is maintainable solely on the ground of non custody of accused while entertaining revision application under Section 397 of the Code of Criminal Procedure by this Court? - HELD THAT - Pursuant to the plain reading of Section 389(3) of the Cr.PC, this Court is agreed that arguments advanced by the learned advocate Mr. Puj for the Respondent No. 1 that concerned learned Sessions Judge is not empowered to suspend the sentence on the contrary, learned Sessions Judge has given one week time to surrender before the concerned learned Metropolitan Magistrate Court if the applicant fails, in that case, learned Metropolitan Magistrate Court, shall be empowered to issue warrant, which appears against the principles of settled law. There is nothing on record so far as the issuance of warrant is concerned but one thing is true that accused is not behind the bar and preferred this revision application - Though, the relief that can be granted under Sub-section (3) of Section 389 of the Code is crucial, but the learned trial Judge has to play a very little role while dealing with the bail plea in a case where the accused was asked to undergo punishment for a period less than three years and the amount of fine imposed by the trial Court is paid. In that very fact situation, even the appellate Court normally should not refuse the bail. The Court is conscious that bail is a rule and jail is an exception is no longer a good law, but certain categories of cases obviously would fall in the class where the refusal of bail can be equated with denial of legitimate freedom of personal liberty even in absence of presumption as to innocence. This Court has not entered into the merits of the case except suspension of sentence for the offence under Section 138 of the Negotiable Instruments Act, which is concurrently confirmed by the learned trial Court - Application disposed off.
Issues Involved:
1. Maintainability of revision application under Section 401 of Cr.PC without the accused's custody. 2. Powers of High Court and Sessions Court to suspend the sentence under Sections 389 and 397 of Cr.PC. 3. Special considerations due to the applicant's age and health conditions. Issue-wise Detailed Analysis: 1. Maintainability of Revision Application under Section 401 of Cr.PC without the Accused's Custody: The primary issue was whether a revision application is maintainable if the accused is not in custody. The applicant argued that neither the Code of Criminal Procedure (Cr.PC) nor the Gujarat High Court Rules mandate the accused's custody for filing a revision, especially in cases under Section 138 of the Negotiable Instruments Act. The applicant cited judgments from the Madras and Patna High Courts, which held that custody is not required for filing a revision. The respondent argued that there is no provision in the Cr.PC for entertaining a revision application if the accused is not in custody. The court referred to Section 401 of the Cr.PC, which allows the High Court to exercise powers of revision without requiring the accused's custody. The court also noted that there are no specific rules in the Gujarat High Court mandating custody for filing a revision application. 2. Powers of High Court and Sessions Court to Suspend the Sentence under Sections 389 and 397 of Cr.PC: The applicant argued that the High Court has the power to suspend the sentence under Section 397 of the Cr.PC, even if the accused is not in custody. The respondent countered that the Sessions Court does not have the power to suspend the sentence once it has affirmed the order of the Magistrate Court. The court examined Section 389 of the Cr.PC, which allows the Appellate Court to suspend the sentence and release the accused on bail. The court agreed with the respondent's argument that the Sessions Court is not empowered to suspend the sentence. However, the court noted that under Section 397, the High Court has the discretion to suspend the sentence and release the accused on bail, especially in cases where the punishment is less than three years. 3. Special Considerations due to the Applicant's Age and Health Conditions: The applicant, aged 71 and suffering from various ailments, argued for bail on the grounds of health and the contemporary situation of the COVID-19 pandemic. The applicant had already deposited 75% of the compensation amount. The court considered these special circumstances, noting that the offence under Section 138 of the N.I. Act is summary triable with a maximum punishment of two years. The court found that the applicant's age, health conditions, and partial payment of the compensation amount warranted special consideration. Consequently, the court suspended the sentence and granted bail, requiring the applicant to execute a personal bond of ?10,000 and a surety of the same amount. Conclusion: The court concluded that the revision application is maintainable without the accused's custody, citing the absence of specific rules in the Gujarat High Court and the provisions of Sections 401 and 397 of the Cr.PC. The court suspended the sentence and granted bail to the applicant, considering the special circumstances of age, health conditions, and the COVID-19 pandemic. The court clarified that this decision should not be treated as a precedent for future cases.
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