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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 ..... 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. - R/CRIMINAL REVISION APPLICATION NO. 488 of 2020 - - - Dated:- 29-10-2020 - HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI LEARNED ADVOCATE MR. ASHISH DAGLI WITH LEARNED ADVOCATE MR SR YADAV FOR THE APPLICANT MR.D K.PUJ FOR THE RESPONDENT ORDER 1. The applicant has filed this Revision application under Section 401 of the Criminal Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstruments Act, specially for the offences under Section 138 of the Negotiable Instruments Act, wherein the procedure is summary triable and even pleader can give further statement under Section 313 of Cr.PC. He also submitted that as per the judgment of Madras High Court, there is no need of custody of accused and as per the judgment of Bombay High Court, custody of accused is necessary but Hon'ble Supreme Court in the case of Niranjan Singh Anr Vs. Prabhakar Rajaram kharote Ors. decided on 10, March, 1980, reported in 1980 AIR 785 and 1980 SCC (2) 559, wherein the Hon'ble Supreme Court has held that deemed custody is required to be observed instead of physical custody of accused. 4.1 Learned advocate Mr. Ashish Dagli for the applicant has placed reliance upon the judgment of Madras High Court in case of Easwaramurthy Vs. N. Krishnaswami, reported in 2006(2) MLJ (Cri) 410, 2006 (0) Supreme (Mad) 1319, wherein Madras High Court has held that in the case of offences under Section 138 of the Negotiable Instruments Act, while dealing with the Section 397 of Cr.PC in case of conviction accused need not require to surrender and undergone imprisonment seeking suspension of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce) that Revision is not maintainable. 6. Learned APP Mr. H.K. Patel for the State has submitted that normally Courts grant 30 or 60 days time but in the present case only one week time was granted which is also not proper and Section 389 of CrPC requires the presence of accused. The Appellate Court has no powers, therefore, he joined with the arguments of learned advocate Mr. D.K. Puj for the original complainant. 7. In Re- learned advocate Mr. Dagli added in his arguments that this is the special case wherein 75% amount of the total compensation is already deposited and applicant/revisionalist is 71 years of age having many ailments, it was the Covid-19 status. This Court has considered as deemed custody. There is no change of hampering and tampering with evidence and witnesses and no chance of run away and therefore, in special case this Revision Application may be proceeded. 8. In Re- learned advocate Mr. D.K. Puj has submitted that in earlier case accused was not present in the Court, in our case accused was present at the time of pronouncement of judgment at the trial Court, therefore, facts and circumstances are different and therefore, custody of the accused is mus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingly. Learned advocate has also in addition to this referred the powers of both of this Court under Section 397 of the Code, hence Section 397 of the Code is read as under: Sec. 397 - Calling for records to exercise 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; 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. Explanation.--All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section 398. (2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub-section (1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended. (4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced. 12.1 It appears that object of legislation is to make the accused person sincere about his presence to ensure that the person who has been convicted by two Courts obeys the law and does not abscond. 13. 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 Magistrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is well settled that in respect of the revision against conviction and sentence, for granting the relief of suspension of sentence, the accused need not surrender and undergo confinement and filing revision without surrendering and confinement is well within the power contemplated Under Section 397(1) of Cr.P.C. as Section 397(1) Cr.P.C. itself is very clear that there Is absolutely no ambiguity as the reading of the words direct that execution of any sentence or order be suspended. 7. In view of the above, I am of the considered view that in these matters, more particularly in respect of any revision against conviction that the accused need not surrender and undergo confinement for seeking the relief of suspension of sentence pending disposal of the criminal revision. The Courts are coming across the difficulties of the accused and more particularly in the cases Under Section 138 of N.I. Act and other compoundable offences where there is possibility of compounding the offence within a short period and in such event, insisting upon the accused concerned to undergo the confinement for seeking the relief of suspension of sentence, may result in miscarriage of Justice. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ily placed reliance on the judgment Bihari Prasad Singh vs. State of Bihar (Supra) reported in 2000 (10) SCC 346 and 2000 SCC (Cri) 1380, wherein identical question come up before the Hon'ble Supreme Court whether revision application can be dismissed solely on the grounds of accused has not surrendered, reply was given in Para -3, which reads as under: Para 3:- Under the Provisions of the Criminal Procedure Code, there is no such requirement though many High Courts in this country have made such provision in the respective rules of the High Court. But it is stated to us that there is no such rule in the Patna High Court Rules. In that view of the matter the High Court was not justified in rejecting the application for revision solely on the ground that the accused has not surrendered. 15.1 In the present case also this Court (Gujarat High Court) has not framed any Rules for that issue, therefore, Revision application cannot be dismissed solely on the grounds of accused has not surrendered. 15.2 This Court has also observed the judgment of Delhi High Court in case of Pritika Fashions Pvt Ltd Ors vs. State Ors decided on 29.11.2018. The only object behind a per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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