Garh Himmat Singh Tehsil Mahuwa, District Dausa vs State Of Rajasthan, Through P.p

Judgment

2. Versus State Of Rajasthan, Through P.p Laxmikant Jhalani S/o Girish Jhalani, Aged About 34 Years, R/o Behind Sbbj Mandawar, Mandawar, Tehsil Mahuwa, District Dausa ----Respondents For Petitioner(s)

: Mr. Dharmendra Joshi Mr. Kanhaiyalal Choudhary For Respondent(s) : Mr. Prashant Sharma, PP Mr. Rajneesh Gupta with Mr. Utkarsh Goyal HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 25/03/2025 Order

1. Instant S.B. Criminal revision petition is preferred by petitioner-accused aggrieved from dismissal of criminal appeal No. 09/2020 (CIS No. 21/2017) on dated 15.07.2022 by learned Additional Sessions Judge, Mahuwa, District Dausa whereby judgment of conviction and sentence dated

05.12.2016 in criminal case No. 434/2014 passed by learned Judicial Magistrate, Mahuwa, District Dausa was upheld and affirmed. The petitioner-accused was convicted under Section 138 of NI Act and further sentenced to undergo simple [2025:RJ-JP:19762] (2 of 9) [CRLR-1464/2022] imprisonment of 2 years with fine of ₹5,000/- and further imposition of compensation of ₹15 lacs.

2. Learned counsel for petitioner while relying upon grounds of revision petition submitted that the trial Court has passed an order of conviction and the petitioner-accused has filed an appeal but same was dismissed. He further submitted that the petitioner has a right to challenge the order of both the Courts before this Hon’ble Court without surrender before the Trial Court. He also submitted that he has filed a certificate under Rule 311(3) of Rajasthan High Court Rules, 1952 and specifically stated that the petitioner has not surrendered. He also submitted that it is not mandatory for the petitioner to surrender after dismissal of the appeal. He also submitted that once the revision petition is filed under Sections 397/401 Cr.P.C. before this Hon’ble Court, then the revision petition is required to be decided on merits. He further submitted that no legal provision mandates the surrender of petitioner-accused to maintain the revision petition.

3. Learned counsel for petitioner has placed reliance upon judgment in case of Vishnu Teli Vs. The State of Rajasthan and Anr. (S.B. Criminal Revision Petition No. 1734/2009) order dated 25.11.2010, Shanker Singh Vs. Gajraj Singh (S.B. Criminal Revision Petition No. 122/2020) order dated 03.02.2020, Sunil Sharma and Ors. Vs. Om Parkash Porwa and Ors. 2020 SC Online Raj 2627, Nand Kishore Mittal Vs. State of Raj. (S.B. Criminal Revision No. 1662/2016), Ibrahim Vs. State of [2025:RJ-JP:19762] (3 of 9) [CRLR-1464/2022] Kerala 1979 KLT 857 (Kerala), Easwaramurthy Vs. N. Krishnaswamy 2006 (2) DCR 439, Popat Dattatraya Ajabe and Anr. Vs. The State of Maharashtra, Criminal Application No. 1238/2020 in Criminal Revision Application No. 89/2020 (Bombay), Sou Manjusha Sham Nalwade Vs. The State of Maharashtra and Anr., S.B. Criminal Application No. 789 of 2019 in Criminal Application No. 67/2019 (Bombay) and Vijaybhai Gaurinath Sarga Vs. Rashmikant Ratilal Shah Criminal Revision Application No. 488/2020, (Gujarat) and submitted that without actual surrender of accused a revision petition to challenge judgment of conviction and sentence is maintainable. He further submitted that this Hon’ble Court has to consider the interest of justice and it is not necessary to send a person behind bar. He further referred the order dated 16.02.2022 in the case of Pawan Narayaniya Vs. Rajasthan High Court (D.B. Civil Writ Petition No. 2668/2022) and submitted that the judgment in case of Vishnu Teli Vs. The State of Rajasthan and Anr. (supra) is approved by Hon’ble Division Bench. He further referred the judgment of Hon’ble Supreme Court in case of Vivek Rai Vs. High Court of Jharkhand AIR 2015 SC 1088 and submitted that without actual surrender, a revision petition or an appeal is maintainable before the Hon’ble High Court. He also submitted that a D.B. Civil writ Petition No. 15223/2022 is filed by present petitioner, wherein a notice has been issued. [2025:RJ-JP:19762] (4 of 9) [CRLR-1464/2022]

4. Aforesaid contentions were opposed by learned Public Prosecutor and learned counsel for respondent-complainant. Learned counsel for respondent-complainant has referred the provision of Cr.P.C. and submitted that Section 389 Cr.P.C. is applicable only when a criminal appeal is filed from judgment of conviction, but in case of any second appeal or revision after dismissal of first appeal, provision under Section 389 Cr.P.C. is not applicable. He also submitted that the Office has objected to the maintainability and this Hon’ble Court has already considered this issue in order dated 14.09.2022, therefore, this revision petition is not maintainable.

5. Heard learned counsels for the parties along with learned Public Prosecutor. Perused the record. Also perused the judgments of Hon’ble Supreme Court, Co-ordinate Bench of this Court and other High Courts as referred by learned counsel for petitioner.

6. The facts giving rise to institution of present revision petition are that respondent No.2-complainant has filed a criminal complaint under Section 138 of N.I. Act after dishonour of a cheque. Learned Judicial Magistrate, Mahuwa after trial has convicted the petitioner-accused under Section 138 of N.I. Act and sentenced him to undergo imprisonment and also imposed fine for compensation.

7. An appeal is preferred by this petitioner-accused before learned Additional Sessions Judge and same was dismissed on 15.07.2022 affirming the judgment of conviction and sentence. After dismissal of criminal appeal affirming the judgment of conviction and sentence, the petitioner-accused [2025:RJ-JP:19762] (5 of 9) [CRLR-1464/2022] has preferred revision petition under Section 397/401 of Cr.P.C. to challenge the judgment of conviction and sentence.

8. The Office has raised an objection in terms of Rule 311(3) of Rajasthan High Court Rules, 1952. The petitioner- accused has requested to waive these objections and matter was listed before a Co-ordinate Bench on 14.09.2022 and after considering the judgments as referred by petitioner- accused, a Co-ordinate Bench has dismissed the application for suspension of sentence and granted a liberty to the petitioner-accused to re-file application for suspension of sentence after compliance of Rule 311(3) of Rajasthan High Court Rules, 1952.

9. Now, we have considered the issue of maintainability of this petition which is filed to challenge judgment of conviction and sentence passed by the Trial Court and affirmed by the Appellate Court. Section 389 of Cr.P.C. provides for suspension of sentence and release on bail pending an appeal and by a convicted person.

10. Now, Chapter XXIX which relates to appeal, this is the only provision regarding suspension of sentence. Chapter XXX of Cr.P.C. deals with reference and revision. Section 397 provides for calling of records to exercise power of revision whereas Section 401 empowers the High Court to consider revision petition. In the entire Chapter there is no provision for suspension of sentence as provided under Section 389 in Chapter XXIX of Cr.P.C.

11. A Co-ordinate Bench of this Court in bunch of S.B. Criminal Revision Petitions after considering the judgments as [2025:RJ-JP:19762] (6 of 9) [CRLR-1464/2022] referred by learned counsel has laid down that there is no provision under the rules including under Rule 311 and 323 of Rajasthan High Court Rules, 1952 to grant exemption from surrender, therefore, if the defect(s) are not cured within a specific time, then revision petition would be dismissed as non-maintainable. The lead judgment in case of M/s Mario Luis Vs. Meenakshi Tikiwal (S.B. Criminal Revision Petition No. 894/2023, order dated 27.09.2023) has already considered the judgment in case of Vishnu Teli Vs. The State of Rajasthan and Anr. (supra), Shanker Singh Vs. Gajraj Singh (supra), Sunil Sharma and Ors. Vs. Om Parkash Porwa (supra), Nand Kishore Mittal Vs. State of Raj. (supra), Ibrahim Vs. State of Kerala (supra), Easwaramurthy Vs. N. Krishnaswamy (supra), Popat Dattatraya Ajabe and Anr. Vs. The State of Maharashtra (supra) and Vijaybhai Gaurinath Sarga Vs. Rashmikant Ratilal Shah (supra). A Co-ordinate Bench has also considered judgment of Hon’ble Supreme Court in case of Vivek Rai Vs. High Court of Jharkhand (supra) and Division Bench Order in case of Dhaniram Saini (supra).

12. The findings recorded by a Co-ordinate bench clearly indicate that the accused has failed to remain present on date of pronouncement of judgment by the Appellate Court, therefore, he could not been taken in custody. It was further held that the revision petition is not maintainable, unless accused is taken in custody. [2025:RJ-JP:19762] (7 of 9) [CRLR-1464/2022]

13. Very recently Hon’ble Supreme Court in case of Daulat Singh Vs. State of Madhya Pradesh SLP (Criminal) Diary No.20900/2024 (order dated 30.07.2024) has considered the power of exemption of High Court under Section 482 of Cr.P.C. and held that High Court cannot exempted from surrender while considering a revision petition. Hon’ble Supreme Court has also referred the judgment in case of Vivek Rai Vs. High Court of Jharkhand (supra). The relevant portion of judgment of Daulat Singh Vs. State of Madhya Pradesh (supra) is reproduced as under:-

7. The judgment and order dated 25.01.2024, by which the High Court thought it fit to dismiss the application of the petitioner seeking exemption on the ground that the same is not maintainable is challenged in this special leave petition on the primary contention that the same is in the teeth of the decision of this Court in Vivek Rai & Anr. vs. High Court of Jharkhand3. Relying on paragraph 11 of such decision, learned counsel appearing for the petitioner contends that it is well settled principle of law that the High Court, in exercise of its inherent power, may consider it appropriate to grant exemption from surrendering having regard to the nature and circumstances of a particular case; and, in view thereof, the High Court was in error in holding that in no case is an application seeking exemption from surrendering is maintainable. 8. We do not agree with the submission advanced on behalf of the petitioner for the reasons that follow. 10. A reading of paragraph 11 of the decision in Vivek Rai (supra), which according to learned counsel contains the ratio of the judgment, reveals a concession given by the learned counsel appearing for the High Court of Jharkhand that Rule 159 of the 2001 Rules does not affect the inherent power of the high court to exempt the requirement of surrender in exceptional situations. This was followed by the observation: “It cannot thus, be argued that prohibition against posting of a revision petition for admission applies even to a situation where on an application of the petitioner, on a case being made out, the Court, in exercise of its inherent power, considers it appropriate to grant exemption from surrender having regard to the nature and circumstances of a case.” 11. If indeed such observation has to be construed as a proposition of law having been laid down by this Court that a high court in exercise of its inherent powers may, in exceptional cases, exempt the requirement of surrender, as learned counsel would wish us to construe, we find such proposition to be debatable. [2025:RJ-JP:19762] (8 of 9) [CRLR-1464/2022] Inherent powers of a high court saved by Section 482 of the Code of Criminal Procedure5 are to be exercised to make such orders as may be necessary to give effect to any order under the Code (emphasis supplied by us) or to prevent abuse of the process of any court or otherwise to secure the ends of justice. It could lead to a travesty of justice if Section 482 of the Code were read in a manner extending liberty to a convict to urge a high court to exercise its inherent power to grant exemption from surrender prior to entertainment of a revision petition, when there are concurrent findings rendered by two courts of competent jurisdiction – conviction recorded by the trial court and affirmance thereof by the appellate court - and particularly when it is the duty of a high court, even under Section 482, to give effect to orders passed under the Code. 12. Significantly, the legislature having thought it fit to introduce a provision enabling a convict to seek benefit of suspension of sentence pending an appeal did so by enacting Section 389 of the Code. The Code has no provision permitting an application to seek exemption from surrender. We are minded to hold that the omission in the Code with regard to providing an avenue for a convict suffering a sentence to seek exemption from surrender, pending a revision, is a conscious act of the legislature. 14. It is a cardinal principle that while gathering the 6 Order XX Rule 3 and Order XXII Rule 5 legislative intent, attention has to be paid to what has been said as well as what has not been said. 15. We do not, therefore, consider it appropriate to accept as a sound proposition of law that a high court, in exercise of its inherent power, may grant exemption from surrendering in a particular case despite concurrent findings of conviction oblivious of the duty of giving effect to orders passed under the Code and/or to prevent abuse of the process of a court. 16. Having regard to our disagreement with the view expressed in Vivek Rai (supra), which is a decision of a coordinate Bench, reference to a larger Bench is desirable. However, notwithstanding the same and notwithstanding the finding on maintainability returned by the High Court, we have looked into the merits of the petitioner’s claim; and, having regard to the order we propose to pass, we do not consider it necessary to make a reference. 17. The premise/event citing which exemption from surrendering was claimed by the petitioner before the High Court is that of old- age related illness/ailments. Certificates issued by a doctor, which the petitioner relied on, are available at pages 68 and 73 of the paper book. These certificates have once again been relied on before us by learned counsel for the petitioner to persuade us hold that the High Court was in error in not granting relief, as claimed. 18. We have read the certificates. It is abundantly clear from its contents that the same have been procured by the petitioner for the purpose of seeking exemption. If indeed the petitioner is suffering from hepatitis, as claimed, laboratory test reports ought to have been placed on record for our consideration. In the absence thereof, we are not impressed that there exists exceptional reason for granting the prayer of the petitioner. [2025:RJ-JP:19762] (9 of 9) [CRLR-1464/2022]

14. The counsel for petitioner has further used the word “interest of justice” so as to consider this revision petition on merit. A very recently Hon’ble Supreme Court in case of P. Subba Reddy (died) by LRs. And Ors. Vs. Special Deputy Collector (LA) 2024 INSC 286 while considering the provision of Limitation Act has disapproved the grant of relief in the name of “interest of justice”. The relevant portion of judgment is produced as under:- (iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act;

15. While considering the judgments as referred by learned counsel for petitioner, I am of the considered view that unless the petitioner surrender before the Trial Court, he has no right or authority to file a revision petition to challenge the judgment of conviction and sentence of trial Court, which was affirmed by the Appellate Court.

16. An attempt is made by the present petitioner to file incorrect certificate under Rule 311(3) of Rajasthan High Court Rules, 1952 and same is not sufficient, thus, this revision petition sans merits and we cannot grant a relief against the provisions of law.

17. In view of aforesaid, the instant revision petition No. 1464/2022 is not maintainable and same is hereby dismissed with pending application(s), if any. MONU /194-S (ASHOK KUMAR JAIN),J