[S.397 CrPC] Not Mandatory For Accused To Surrender Or Remain In Jail To File Revision Application: MP High Court

The Madhya Pradesh High Court has iterated that the surrendering of an accused is not necessary before preferring a criminal revision application under Section 397 CrPC.

The single-judge bench of Justice Vishal Dhagat underscored that there is no bar under Section 397 CrPC for entertaining a revision application even though the applicant is not in confinement. After scrutinising Section 397 CrPC and Rule 48 of Chapter X of MP High Court Rules & Orders, the bench sitting at Jabalpur opined that criminal revision is maintainable even if the applicant is not in jail.

“…If counsel for applicant is able to point out any impropriety or illegality in the judgment passed by the Court below then High Court may exercise its jurisdiction and powers of revision to call for the records and examine the same. While passing orders for summoning the records for examination, High Court may direct execution of sentence or order to be suspended…”, the court pointed.

The single-judge bench also added that if the accused is in jail when the execution of the sentence is suspended or when the judgment of the appellate court itself is suspended, then he/she can be released on bail. In case he is not in jail then, he could be asked by the court to furnish bail bonds for appearance before the high court when required.

Accordingly, the court allowed the application filed seeking exemption from surrender, and records pertaining to the case were sought from the trial court by Justice Dhagat.

“…As held above, there is no requirement to surrender or to remain in jail for filing revision, therefore, I.A. No.4216/2024 is dismissed”, the court accordingly noted in the order. However, the applicant has been asked to furnish a personal bond of Rs 50,000/- to the satisfaction of trial court for his appearance before the registry on 26.04.2024 and further dates.

Before arriving at the said decision, the court placed extensive reliance on the judgments in Easwaramurthy v. N. Krishnaswamy 2006 SCC Online Mad 1231 and Ibrahim v. State of Kerala (1979) to pass the above order.

In Easwaramuthy, Madras High Court had held that the words 'direct that execution of sentence or order be suspended' mentioned in Section 397(1) CrPC must be read 'dis-conjunctively' from words 'and if the accused is in confinement that he be released on bail or on his bond pending the examination of the record'; the provision gives the revisional court the power to suspend sentence even if he/she is not in confinement. As per Madras High Court, this Section clearly recognized the difference between a case where an accused is in confinement and when not in confinement.

Madras High Court had then clarified that the question of releasing the applicant on bail arises only when that person is in confinement as understood from the words at the end of Section 397(1). If the accused is not in confinement and the court orders a suspension of sentence, there is no requirement to order the release of the applicant on bail.

In this case, a revision application was filed by the applicant against the enhancement of the sentence passed by the Additional Sessions Judge, Pawai District in the judgment dated 06.02.2024. Appearing for the applicant, Senior Advocate Anil Khare argued that a notice of enhancement of sentence was necessary before enhancement since the notice of appeal and the notice of enhancement are not the same.

In addition to that, as a substantial question of law, Mr Khare submitted that it's the court's prerogative to direct that execution of a sentence or order be suspended based on impropriety or illegality in the order passed by the lower court; Section 397 CrPC does not envisage a bar on entertaining the application if the accused is not in confinement.

Advocate Tanvi Khare assisted the senior counsel who appeared for the applicant. Government Advocate Akshay Namdeo appeared for the state.

Case Title: Sanjay Nagayach v. The State Of Madhya Pradesh

Case No: CRR No. 729 of 2024

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