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TMI Blog2020 (11) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... isonment of 90 days. 2. Heard learned Advocate Mr. Ashish Dagli with learned Advocate Mr. S.R. Yadav for the applicant and learned advocate Mr. D.K. Puj for the Respondent No. 1- original complainant and learned APP Mr. H. K. Patel for the Respondent - State of Gujarat through video conference. 3. The applicant has filed this Revision Application with the following prayers: "B. Kindly call for the records and proceedings of Criminal Appeal Number 514 / 18 confirming the sentence passed by Ld. Metropolitan Magistrate in Criminal Case Number 1007/13. C. Kindly stay the execution of order dtd. 16.08.2018 passed by Ld. Metropolitan Magistrate Court No. 35 in Criminal Case No. 1007/13 and order dtd. 20.08.2020 passed in Criminal Appeal No. 514/14 by learned Additional Sessions Judge, Court No. 31 and grant bail to applicant pending admission, hearing and final dispose of revision." Submission of the Parties: 4. Learned advocate Mr. Ashish Dagli for the applicant has vehemently argued that in the present case, this is the Revisions Application filed under Section 401 of Cr.PC. Earlier the rule was issued. He further submitted that the issue is with regard to the powers of High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt but it is stated that there is no such rules in the Patna High Court for Revision solely on the ground that the accused has not surrendered therefore, in the present case learned advocate Mr. Ashish Dagli has submitted that in view of the judgment passed by the Madras High Court and also Patna High Court such Rules were not available likewise High Court also as such there is no Rules regarding the custody of accused at the time of filing of Revision Application. Therefore, present Revision Application may kindly be admitted and accused may be enlarged on bail, since it is summary trial and revisionalist has also deposited in all 75% of amount. He further submitted that the applicant is aged about 71 years suffering from different ailments, therefore in this special case also he may be bail out with consideration as deemed custody and the applicant would be ready to abide by any conditions. 5. Per Contra, learned advocate Mr. D.K. Puj has heavily opposed the arguments advanced by the revisionalist and submitted that as such there is no provision in the Cr.PC, wherein, if accused is not in custody, in that case, revision can be entertained. He further submitted submitted that le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ining revision application under Section 397 of the Code of Criminal Procedure by this Court(?). 11. Since present petition is under Section 401 of the Code, therefore, it would be appropriate to refer to Section 401 of the Cr.PC, as it is: Sec. 401 High Court's powers of revision.--(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307, and, when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392. (2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one conviction. (4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ized to buttress his argument that under Section 389(3) of the Cr.PC, learned Sessions Court has not empowered for suspending the sentence. Section 389 of the Code reads as under: "Sec. 389. Suspension of sentence pending the appeal; release of appellant on bail.--(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond: [Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release: Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.] (2) The power conferred by this section on a Appellate Court may be exercised also by the High Court in the case of an appeal by a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fine has been paid and quantum of punishment is less than three years especially when there is no other reasons to refuse the discretionary relief. 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. 14. In the present case, the punishment is less than three years ie. applicant is convicted only for one year, therefore, this Court is empowered to pass the order of bail with suspension of sentence, not only that but identical issue was also before the Madras High Court in the case of Easwaramurthy Vs. N.Kris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 138 of N.I. Act imposed on him by the learned Judicial Magistrate No. II, Pollachi in C.C. No. 73 of 2002 dated 5.7.2005 and modifying the sentence into one of three months SI and confirming the fine of Rs. 5,000/- in C.A. No. 340 of 2005 on the file of Additional District and Sessions Judge and Presiding Officer, Special Judge for EC Act Cases at Coimbatore dated 22.4.2006. 10. Therefore, the applicant's sentence viz., to undergo one year simple imprisonment and a fine of Rs. 5,000/- in default to undergo SI for six months for the offence Under Section 138 of N.I. Act imposed on him by the learned Judicial Magistrate No. II, Pollachi in C.C. No. 73 of 2002 dated 5.7.2005 and modifying the sentence into one of three months SI and confirming the fine of Rs. 5,000/- in C.A. No. 340 of 2005 on the file of Additional District and Sessions Judge and Presiding Officer, special Judge for EC Act Cases at Coimbatore dated 21.4.2006, is suspended on his executing a bond for a sum of Rs. 10,000/- (rupees ten thousand only) with two sureties each for a like sum to the satisfaction of learned Judicial Magistrate No. 2, Pollachi subject to the condition that the applicant shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complainant has further submitted that in our case accused has surrendered, therefore, this authority is not applicable but in view of the this Court, accused has already surrendered in video conference at the time of pronouncement of judgment by learned Additional Sessions Judge, since in contemporary status of Corona Virus, the Court is functioning virtually. Learned APP has submitted that normally, the Court gives 30 days time without suspension of sentence to approach this Court but here learned Sessions Judge has given only 7 days time, that issue will be dealt in future but at this juncture, when the applicant is 71 years old, who has already deposited 75% (in all 65% + 10%) amount of total compensation and offence is under N.I. Act which is summary triable where in maximum punishment is 2 years and here sentence awarded only 1 year and the revision application is filed in contemporary situation of Corona Virus. Upon such premises, without discussing much issue of custody in detail, this Court is inclined to suspense the sentence and enlarge the applicant on bail on executing the personal bond of Rs. 10,000/- and surety of the like amount to the satisfaction of the trial Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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