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TMI Blog2010 (11) TMI 1097X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Petitioner shall pay a sum of ₹ 3,00,000/- to the complainant-Respondents, and in default thereof, to further undergo a sentence of three months simple imprisonment. The Petitioner has also challenged the judgment dated 12.11.2009 passed by the Additional District & Sessions Judge (Fast Track) No. 2, Beawar City, Ajmer, whereby the learned Judge has upheld the conviction and sentence passed by the learned Magistrate. 2. Since the Petitioner had not surrendered prior to filing of the revision petition, a preliminary objection has been raised, by the learned Public Prosecutor, with regard to the maintainability of the revision petition. According to the learned Public Prosecutor, Rule 311 of the Rajasthan High Court Rules, 195 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " of a revision petition has to be adjudged on the basis of Section 397 read with Section 401 Code of Criminal Procedure. There is no requirement in Section 397 Code of Criminal Procedure, that before a revision petition is presented, the accused has to surrender. Rule 311 of the High Court Rules cannot impose a condition which does not exist in the parental Legislation namely, Section 397 read with Section 401 Code of Criminal Procedure. 5. Thirdly, according to the learned Counsel, the requirement that the accused must surrender before a revision petition is held to be maintainable, such a pre-requisite would adversely affect the liberty of the accused person. Therefore, such a requirement would be in violation of Article 21 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case may be; (ii) whether it has been filed within ninety days excluding the time taken in obtaining the requisite copies; (iii) whether it is accompanied by the requisite papers; (iv) whether any Court-fee is payable and if a Court-fee is payable, whether the Court-fee paid is sufficient; (v) whether an application for revision had been previously filed on behalf of the applicant or any other person tried along with him and if it had been so filed, the result, in case the revision has been decided. Rule 311 is as under: Particulars to be contained in a petition of appeal and application for revision.- (1) Every petition of appeal or application for revision shall state- (a) the name, and where the appeal or revision is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... granted by the Court appealed from under Sub-section (2-A) of Section 426 of the Code of Criminal Procedure, the fact shall be stated in the petition of appeal. 9. A bare perusal of these rules clearly reveals that while Rule 311 of the High Court Rules deals with the particulars which need to be mentioned in the application for revision, Rule 308 of the High Court Rules deals with the report which need to be made by the Registry with regard to the application for revision. According to the Rule 308(3) of the High Court Rules casts a duty on the stamp reporter to see whether the petition is accompanied by requisite papers or not? Naturally, the requisite papers refer to Rule 311 of the High Court Rules which lays down the particulars whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quot;defect" and claim that because of the "defect", the petition cannot be accepted. 11. However, "maintainability" of a petition deals with whether the petition can be heard under the law or not? Therefore, the submission of the certificate or the lack of such certificate with the body of the petition adversely affects only its "presentability" before the registry itself. It does not and cannot affect its "maintainability" under the law before the Court. The maintainability of a revision petition would have to be seen in the light of Section 397 read with Section 401 Code of Criminal Procedure Section 397(2) prohibits the filing of a revision petition against an interlocutory order. In case, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant to surrender during the period of suspension of sentence. 13. Secondly, since there is no such requirement under Section 374 or under Section 397 read with Section 401 and 374 Code of Criminal Procedure prior to filing of appeal/revision petition, the rules cannot be permitted to insert a condition which does not exist in the parental law. 14. Thirdly, such an interpretation of the rules would make the rules unconstitutional. For, such a rule would jeopardize the personal liberty of a person. Moreover, such a rule would be against the concept of "due process of law" as contained in Article 21 of the Constitution of India. Therefore, an interpretation which leads either to anomalous situation, or to the declaration ..... X X X X Extracts X X X X X X X X Extracts X X X X
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