MAHADEV PRASAD SRIVASTAV Vs. HIGH COURT OF JHARKHAND

JUDGEMENT

(1.) The petitioner was convicted on 23rd April, 2002 u/S. 420, I.P.C. by the learned Judicial Magistrate 1st Class, Ranchi in G. R. case No. 918 of 1990 and was sentenced to undergo R/I for two years and to pay a fine of Rs. 1000/- and in default to undergo S/I for three months. The appeal No. 36 of 2002 preferred by petitioner against the judgment of conviction and sentence was also dismissed on 16th August, 2003 by learned 4th Additional Judicial Commissioner-cum-Special Judge, CBI (AHD Scam), Ranchi. Against the aforesaid judgment of conviction and sentence/appellate order, the petitioner stated to have preferred a criminal revision application (number not given) before this Court challenging the correctness, legality and propriety of his conviction and sentence.

(2.) Under Rule 159 of the "High Court of Jharkhand Rules, 2001", the petitioner is required to submit a surrender certificate. If he has not surrendered, a petition to be accompanied by an application seeking leave to surrender is required to be filed within a specified period. Rule 159 reads as follows :

(3.) According to petitioner, Rule 159, asking a convicted person to surrender to the custody of the Court is arbitrary, discriminatory, illegal and is contrary to sub-section (3) to Section 389, Cr. P. C. The counsel for the petitioner submitted that though the High Court has power to frame rule under Clause-D of sub-section (1) to Section 477, Cr. P. C. and/Section 29 of the Bihar Reorganisation Act, 2000, it cannot frame any rule Inconsistent with statutory provisions, such as sub-section (3) to Section 389, Cr. P. C., as the petitioner has a right to pray suspension of conviction and sentence. The aforesaid submission of the petitioner cannot be accepted. Section 389, Cr. P. C. relates to suspension of sentence pending the appeal; release of appellant on bail. The said section is not applicable in the case of revision. Once an appeal against judgment of conviction and sentence is dismissed by the appellate Court, it has no power under Section 389 to suspend sentence or grant bail to the accused to prefer revision application before the High Court.I In the case of Dllip Umare v. State of Maharashtra, reported in 1996 Cri LJ 721 (Bom), the Bombay High Court held that once appeal is dismissed by the appellate Court, the appellant cannot plead that he is on bail. Under Section 397 read with Section 401, Cr. P. C., the High Court or any Sessions Judge may call for and examine the record of any proceeding of any inferior Criminal Court situated within its Jurisdiction for the purpose of satisfying itself as to the correctness, legality and property of any finding. When calling for such record, the Court may 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. Normally, before suspension of sentence or grant of ball the Court is supposed to look into the nature of offence and the period the applicant is in custody. When the Court is satisfied that due to practical reasons a revision application cannot be disposed of expeditiously may suspend the sentence so as to make the revision right, meaningful and effective, but no person can claim such relief as a matter of right. As a result of above discussion, Rule 159 of the "High Court of Jharkhand Rules 2001" cannot be held to be arbitrary, discriminatory, and illegal nor it can be stated to be vlolative of any statutory Act.