Punjab and Haryana High Court: In a criminal revision petition filed by the petitioner-convict challenging the order of sentence passed by the Judicial Magistrate 1st Class, Bathinda (‘JMIC’) and judgment passed by the Additional Sessions Judge, Bathinda (‘ASJ’), a Single Judge Bench of Sumeet Goel, J., opined that the difference between maintainability of a petition and desirability to entertain it was as distinct and stark as the difference between chalk and cheese. The Court stated that neither Sections 397 and 401 of the Criminal Procedure Code, 1973 (‘CrPC’) (Sections 438 and 442 of the Bhartiya Nagarik Suraksha Sanhita, 2023), nor indeed any extant rules framed by this High Court on its administrative side, contained any provision or even a subtle hint suggesting non-maintainability of a revision petition in the absence of petitioner having surrendered before the Appellate Court. The Court thus held that the criminal revision petition against the judgments of conviction (as also an application for suspension of sentence, etc.) was maintainable before this Court, without the petitioner having surrendered or being in custody, in the absence of any rule in the Punjab and Haryana High Court Rules/Orders proscribing such maintainability.
Background
In the present case, the petitioner was arraigned as an accused in FIR under Sections 420 and 34 of the Penal Code, 1860 (‘IPC’). Upon trial, the JMIC convicted and directed him to undergo rigorous imprisonment for 3 years along with a fine of Rs 1,000 and in default of payment of fine, to further undergo imprisonment for 15 days. Aggrieved by it, the petitioner preferred an appeal before the ASJ who dismissed it and upheld both the conviction as well as the quantum of sentence. Thus, the instant petition lies before the Court, whereby the petitioner challenged the ASJ’s and JMIC’s order, along with an application for grant of time to surrender and another application for suspension of substantive sentence during the pendency of the instant criminal revision petition.
The petitioner contended that the JMIC and ASJ failed to consider the fact that there was no cogent and convincing evidence against the petitioner. It was further submitted that the petitioner could not appear before the ASJ due to his ill health as he was suffering from heart related issue(s). On the other hand, the respondent contended that the petitioner intentionally avoided appearing before the ASJ to receive the judgment in appeal.
Analysis and Decision
The issue for consideration was “whether a criminal revision petition and application for extension of time to surrender and/or for suspension of sentence, when the petitioner had not surrendered and was not in custody, was maintainable?”.
The Court stated that neither Sections 397 and 401 of the CrPC (Sections 438 and 442 of the BNSS) nor any extant rules framed by this High Court on its administrative side, had any provision or gave even a subtle hint suggesting non-maintainability of a revision petition in the absence of petitioner having surrendered before the Appellate Court.
The Court opined that imposing such a fetter on the maintainability of revision petition or application for exemption from surrender and/or an application for suspension of sentence, would be to restrict a right which had been explicitly conferred by the legislature. Also, the Court stated that to superimpose any other fetters or to create procedural impediments to the exercise of this invaluable remedial jurisdiction, particularly in the conspicuous absence of explicit legislative direction or extant rules framed by the High Court on its administrative side, would be akin to constructing an artificial barrier to justice.
However, the Court opined that the petitioner in such a case should show tangible cause for not being present before the Appellate Court concerned to receive his judgment and resultantly not being in custody at the time of filing/hearing of his revision petition.
The Court held that a criminal revision petition against the judgments of conviction (as also an application for suspension of sentence, etc.) was maintainable before this High Court, without the petitioner having surrendered or being in custody, in the absence of any rule in the extant Punjab and Haryana High Court Rules/Orders proscribing such maintainability.
Further, the Court held that mere maintainability of a revision petition did not, ipso facto, translate into its desirability. The Court referred to the latter as a matter of judicial discretion which was inexorably linked to the bona fides and overall conduct of the petitioner, including the sufficiency of reasons proffered for non-appearance before the Appellate Court.
Furthermore, the Court stated that though such revision petition etc. would be maintainable in stricto-sense but desirability to entertain the same would depend upon the cause put forth by such petitioner. The Court opined that the difference between maintainability of a petition and desirability to entertain a petition was as distinct and stark as the difference between chalk and cheese. The Court observed that the desirability of entertaining such a petition was not automatic but contingent upon several factors, including, but not limited to, the overall conduct of petitioner; the sufficiency and bona fides of the reasons advanced for non-appearance before the Appellate Court; demonstrable submission of petitioner to the jurisdiction and authority of the courts of law.
The Court held that where the conduct of the petitioner reflected evasion or contumacious disregard of process of law, the Court must lean against the grant of suspension of sentence, lest it would be tantamount to condoning inexplicable defiance of judicial process. Also, no universal guidelines or parameters could be enumerated for exercise of this judicial discretion by this High Court while considering such an application for suspension of sentence.
Therefore, the Court opined that the criminal revision petition and the application(s) filed therein were maintainable despite the petitioner not being in custody. The Court further directed the petitioner to surrender before the Trial Court on or before 18-8-2025 and in case the petitioner surrendered, the said Trial Court shall send him to custody as per law and if the petitioner failed, the said Trial Court shall take steps to take the petitioner into custody.
[Harcharan Singh v. State of Punjab, CRR No. 1704 of 2025 (O&M), decided on 5-8-2025]
Advocates who appeared in this case:
For the Petitioner: Sandeep Singh, Advocate
For the Respondents: Gurpartap S. Bhullar, AAG Punjab
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