HC In Revisional Jurisdiction Can Suspend Sentence Even If Convict Has Not Surrendered After Failed Appeal: Bombay High Court

The Aurangabad Bench of Bombay High Court held recently that a High Court, while entertaining a criminal revision application, can suspend the sentence of convicts even if they have not surrendered.

A division bench of Justice Mangesh S Patil and Justice SG Chapalgaonkar observed that when appeal against conviction has failed but the convict has not surrendered, the High Court in its revisional jurisdiction has the discretion to either suspend the sentence or direct execution of sentence.

“the High Court in exercise of the revisional jurisdiction could exercise the discretion to suspend the sentence even without the accused surrendering himself or is arrested. Conversely, though it can still decide the revision, it may simultaneously direct that a warrant is issued as contemplated under Section 418, so that the law could take its course and ensure that the convict whose conviction has not been suspended suffers the sentence”, the court held.

If the accused is seeking to misuse the process, the High Court can direct his arrest, but it would be independent of the issue regarding maintainability of the revision, the court added.

The court was dealing with revision applications filed by three individuals challenging their conviction under various sections of the IPC. They also sought suspension of their sentence. Their conviction and sentence by the Judicial Magistrate First Class was confirmed by the Additional Sessions Judge (subordinate appellate court).

The subordinate appellate court cancelled the bail bonds of the accused and directed them to surrender before the trial court for the execution of the sentence. However, they were not sent to jail under a conviction warrant, nor did they surrender. They approached the HC in a revision application.

The matter was initially before a Single Judge, who referred it to a larger bench to determine whether HC can entertain revision application and sentence suspension application of convicts who have not surrendered.

The question before the court was, "Whether, in the absence of a Rule regulating the procedure framed by the High Court for admission or listing the Revision without surrender, the High Court under revisional jurisdiction under Section 397 of the Cr.P.C. shall suspend the sentence without the surrender or arrest of the accused for sending him to jail for the execution of the sentence, as a matter of course?"

The court said that this question involves two issues –

1. Entertainment of Revision Without Surrender:

The court said that the first issue has been answered by the Supreme Court in Bihari Prasad Singh v. State of Bihar (2000), which held that in the absence of specific rules, the High Court cannot refuse to entertain a revision when the convicted person, whose appeal against conviction has been dismissed, has not surrendered. The court held that as Bombay HC has not framed any rules as contemplated by the SC that case, it cannot refuse to entertain the revision even when the accused has not surrendered.

2. Suspension of Sentence Without Surrender:

The court opined that the more complex issue was whether the High Court, in exercising revisional jurisdiction under Section 397 of the CrPC, could suspend the sentence without the accused surrendering.

Section 389 of CrPC empowers the trial court to suspend the sentence for some time to allow the accused to challenge the conviction. The appellate court can also suspend the sentence during the appeal. However, if the appellate court upholds the conviction, it is not empowered to further suspend sentence, the court noted.

The court noted that once the appeal is dismissed, and if the accused is not already in custody, a warrant must be issued under Section 418 for execution of sentence of imprisonment. Even if on bail, the accused would have to surrender, as the life of bail ceases with the appeal's conclusion.

However, the court relied on Supreme Court's stance in Vivek Rai and Anr. v. High Court of Jharkhand, in which it was held the absence of rules does not impede the High Court's inherent power to exempt the accused from surrendering in exceptional situations.

Ultimately, the court concluded that while the High Court cannot refuse to entertain a revision without surrender, it has the discretion, under its inherent powers and supervisory jurisdiction, to suspend the sentence without the accused surrendering, or direct execution of sentence as per CrPC.

Case no. – Criminal Revision Application No. 301 of 2022

Case Title – Ikba s/o Chandulal Shaikh and Anr. v. State of Maharashtra and Ors.

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