Madhya Pradesh High Court
Amarchand @ Amit vs The State Of Madhya Pradesh on 20 March, 2026
Author: Avanindra Kumar Singh
Bench: Avanindra Kumar Singh
NEUTRAL CITATION NO. 2026:MPHC-JBP:23535
1 CRR-4150-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 20th OF MARCH, 2026
CRIMINAL REVISION No. 4150 of 2025
AMARCHAND @ AMIT
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Manish Tiwari - learned counsel for the applicant.
Shri Abhay Raj Singh - learned P.L. for the respondent/ State.
ORDER
This is a revision against the judgment DATED 9.1.2023 passed by the
learned Chief Judicial Magistrate, Tikamgarh in RCT No. 1400040/2016
(State of M.P. Vs. Amar Chandra @ Amit) whereby the learned Trial Court
has convicted the accused under Section 34(2) of the M.P. Excise Act, 1915
and sentenced him to undergo R.I. for 1 year with fine of Rs. 25,000/-; in
default 3 months S.I.
Against the judgment of the Trial Court, the applicant filed appeal
bearing CRA No. 32/2023 (Amarchand @ Amit Rai V/s. State of M.P.)
which was dismissed on 19.10.2023. Against the dismissal of appeal, the
revision is filed. It is mentioned in the memo of revision that applicant is
absconding. On perusal of the order-sheets, it is seen that on 9.10.2025, Ms.
Sabhyata Yadav, who appeared for the applicant, had undertaken to
comply with the provision of Rule 48 of Chapter – X of the High
Court of Madhya Pradesh Rules, 2008 when it was pointed out by
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Hon’ble Coordinate Bench that the applicant had not surrendered before
the trial Court and he is not in jail.
Mr. Manish Tiwari, learned counsel for the applicant submits that this
case listed for orders on maintainability as revision is delayed by 584 days.
His party wants that if revision is not found to be maintainable in the facts
and circumstances of the case then they want to approach Hon’ble Supreme
Court, therefore, learned counsel for the applicant was heard.
He relied upon the judgment passed by Hon’ble Supreme Court in the
case of Vivek Rai and another Vs. High Court of Jharkhand through
Registrar General and others, (2015) 12 SCC 86.
Learned Panel Lawyer for the State submits that in a case under Excise
Act when accused is absconding, no liberty can be given to the accused to
hear his revision while he is absconding.
Considered the matter.
This Court has dealt this aspect of the matter in CRR No. 3879 of
2020 (Gudda Raikwar Vs. Ashok Jain and others) , vide order dated
9.12.2025 on an application for exemption from surrender, which is
reproduced below :-
“I.A. 22874/25 is an application for exemption from surrender.
2. Learned counsel for both the parties have been heard.
3. In short, the accused/ applicant has been convicted under
Section 138 of the Negotiable Instruments Act in a case under
Negotiable Instrument Act by the Trial Court vide judgment dated
15-01-2025 in the case of Ashok Jain vs. Gudda Raikwar SC NIA
1815/2017 and has been punished with imprisonment and
compensation cost as per para 24 and 26 of the judgment with
default stipulation as per para 27.
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4. Appeal was filed by the appellant bearing Criminal Appeal
No. 55/2025. The Learned Additional Session Judge vide
judgement dated 18-07-2025 dismissed the appeal of the appellant
accused Gudda Raikawar, against which a revision has been filed.
5. In the instant I.A. attention is invited to paragraph 4, 5 and 6
of the order dated 20.02.2024 passed in CRR 729/24 (Sanjay
Nagayach Vs State of M.P) decided on 20-2-24 which is as below
:-
“4. After careful scrutiny of Section 397 of Code of
Criminal Procedure and also Rule 48 of Chapter X of
M.P. High Court Rules and Orders, it is clear that there
is no requirement of surrendering before Court and to
be confined or in jail for preferring criminal revision
before High Court. If applicant is not in confinement,
then also criminal revision is maintainable before the
High Court. 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. Once order of suspension of execution of
sentence or order to suspend judgment of appellate
Court is passed then if accused/applicant is in jail, he is
to be released on bail. If accused is not in jail then Court
may order him to furnish bail bonds for his appearance
before the High Court when required.
5. Applicant has filed an application i.e. I.A. No.
4216/2024 for exemption to surrender. Prima facie,
illegality and impropriety in order is pointed out before
the Court. In view of same, record from the trial Court
is summoned. 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.
6. The applicant shall furnish a personal bond in the
sum of Rs.50,000/- (Rupees fifty thousand only) to theSignature Not Verified
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satisfaction of the trial Court, for his appearance before
Registry of this Court on 26.04.2024 and on further
dates as may be fixed by the Office till final disposal of
the case.”
6. Considered the arguments of counsel for both the parties.
At the time of arguments, learned Senior Counsel Shri Shekhar Sharma
along with Shri S.K. Pathak submitted that in the impugned judgement of
Sanjay Nagayach (Supra) judgement of Madras High Court in the case of
Easwaramurthy Vs. N. Krishnaswamy, 2006 SCC Online Mad 1231 ,
relevant paragraphs are quoted and relied which are as under:-
“The words “direct that the execution of any sentence or order be
suspended” have to be read dis-conjuctively from the words and if
the accused is in confinement that he be released on bail or on his
bond pending the examination of the record. Suspension of the
execution of any sentence or order postulates that the petitioner is
not in confinement. This Section gives jurisdiction to the
revisional Court to suspend sentence even though the petitioner is
not in confinement. The question of releasing Him on bail arises
only when he is in confinement. Therefore, when the accused in
confinement makes an application for suspension of sentence on
order, the Court should not, only order suspension of the sentence
or order but order his release on bail also. Not so, when he is not
in confinement. This Section clearly recognizes the difference
between a case where an accused is in confinement and when not
in confinement. Thus, it will not be proper for the revisional Court
to insist upon an accused to be remanded to confinement before
his sentence can be suspended, for, that will be acting against the
dear and express provisions contained in Section 397(1) of the
Code, quoted above, enabling the revisional Court to exercise the
twin jurisdiction vested in it in cases where the accused is in
confinement and not in confinement. The matter becomes clear
when the other sections of the Code are also considered…. 8……the
revisional Court need not insist upon the confinement of the
accused before ordering suspension of sentence or order passed
against him. If the accused is in confinement, the revisional Court
will have to direct his release on bail; if he is not in confinement,
the revisional Court need only suspend the execution of the
sentence or order, either on the bond already executed or asSignature Not Verified
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directed by the revisional Court. Since the relevant provisions of
the Code have clearly delineated the situation where the accusers
presence is necessary, and since Section 397 is silent about the
custody or confinement of the accused, the revisional Court need
not insist upon bringing the accused to confinement before
exercising the powers under Section 397(1) of the Code.”
6. In view of the abovesaid decision of the Hon’ble Supreme Court
as well as the decision rendered by his Lordship Justice Khalid (as
he then was), it is well settled that in respect of the revision against
conviction and sentence, for granting the relief of suspension of
sentence, the accused need not surrender and undergo confinement
and filing revision without surrendering and confinement is well
within the power contemplated Under Section 397(1) of Cr.P.C. as
Section 397(1) Cr.P.C. itself is very clear that there Is absolutely
no ambiguity as the reading of the words “direct that execution of
any sentence or order be suspended.”
7. The judgement of Hon’ble Kerala High Court in case of Ibrahim Vs. State of Kerala in
1979 SCC Online Ker 140 – relevant paragraph as mentioned below has also been relied.
“5. The jurisdiction of the appellate Court for suspension of
sentence pending appeal is provided in S. 389 of the Code. For an
appreciation of the question involved, S. 389(1) and (3) of the
Code have to be read carefully. The headnote of S. 389 is
“Suspension of sentence pending the appeal; release of appellant
on bail”. From this headnote itself it is clear that the code
recognises the clear distinction between suspension of sentence
and release on bail. In other words, it is not always necessary that
suspension of sentence should be followed by release of the
accused on bail, the release of the accused on bail becoming
necessary only when the accused is in confinement. S. 389(1) and
(3) read: “(1) Pending any appeal by a convicted person, the
Appellate Court may, for reasons to be recorded by it in writing,
order that the execution of the sentence or order appealed against
be suspended and, also, if be is in confinement, that he be released
on bail, or on his own bond.
xxxx
(3) Where the convicted person satisfies the Court by which he is
convicted that he intends to present an appeal, the Court shall,–
(i) where such person, being on bail, is sentenced to
imprisonment for a term not exceeding three years; orSignature Not Verified
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(ii) where the offence of which such person has been convicted is
a bailable one, and he is on bail,
7. S. 389(1) read above, confers two powers on the appellate
Court: to suspend the sentence and release the accused on bail, if
he is in confinement. S. 389(3) enables the convicting Court, in
cases of conviction both under bailable and non-bailable offences,
contrary to what was contained in S. 426(2)(A), of the old Code,
to direct the person convicted to be released on bail; on condition
that if he is convicted, the sentence should not exceed a term of
three years. Thus, S. 389(1) enables the appellate Court to suspend
the sentence or release the accused on bail, while S. 389(3)
enables the convicting Court to release an accused on bail even
after conviction. None of the above-said sections make it
obligatory on the part of the appellate Court to insist upon the
accused to be present to receive judgment and none of the
provisions require the revisional Court to insist upon the
confinement of the accused before suspending the execution of the
sentence or order.
9. I should not be understood to hold that under no circumstances
can a revisional Court insist upon the attendance of an accused or
his surrender to his bail before sentence is suspended. In cases
where the appellate Court after pronouncing judgment directs that
the accused’s bail bonds are cancelled, the accused has necessarily
to surrender to his bail before he can obtain an order of suspension
of his sentence, from the revisional Court. And in so doing, the
revisional Court has necessarily to release the petitioner on bail in
addition to suspending the sentence passed against him; which
means that if there is no direction by the appellate Court for
cancellation of the bail bonds, there is no necessity to release the
accused on bail, because there is no need for him to surrender to
his bail. Since S. 397 visualises exercise of dual powers by the
revisional Court, to suspend the sentence and to release the
accused on bail, it presupposes the fact that in one case, the
accused is not in confinement while in the other he is in
confinement. It is not as though the revisional Court has no
powers to get the presence of the accused at any time. Under S.
401 the High Court has all the powers that the Court of Appeal
can exercise under Ss. 386, 389, 390 and 391. The High Court is
enabled, in an appeal against acquittal, by S. 390 of the Code to
issue a warrant directing that the accused be arrested and brought
before it or any subordinate Court and the Court before which he is
brought can commit him to prison till the disposal of the appeal.
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Where an accused is acquitted, his bail bonds are automatically
cancelled. The High Court can in appropriate cases resort to S. 390
of the Code. In an appeal against acquittal, the accused need not
be brought at all. Since the High Court in revision exercises all the
powers of an appellate Court, it can in appropriate cases direct the
accused to be brought up or direct him to attend the Court to hear
the judgment. But has it the power under S. 387 of the Code.
Among the sections enumerated in S. 401, S. 387 has been
deliberately omitted, for the good reason that S. 387, deals with
subordinate appellate Courts. The Code does not visualise the
need for the High Court requiring the attendance of the accused to
receive the judgment because necessary consequences will follow
in enforcement of the bail bond executed by the accused after the
judgment is rendered by the High Court.”
8. Reliance was also placed by the learned counsel for the applicant on the
case of Vivek Rai and another Vs High Court of Jharkhand through Registrar
General and Others, (2015) 12 SCC 86 and submitted that judgment of
Daulat Singh Vs. State of M.P., SLP (Criminal) Diary No(s). 20900/2024
cannot be applicable as in Daulat Singh’s case (supra), although the
judgment of Vivek Rai (Supra) was considered in para 9 and 16 but in para
16 even after considering that reference to a larger Bench is desirable but
matter was not referred to a larger Bench but looking to the fact that medical
certificate of the applicant was not found to be reliable in Daulat Singh’s
case relief was not granted hence judgment in Daulat Singh’s case (Supra) is
not a judgment in rem but a judgment in personam.
9. Reference is also made to the judgment of Hon’ble Coordinate
Bench of this court in the case of Rajeev Sharma Vs. Raj Babu Sharma –
CRR 5872/23 dated 18-11-2024 wherein suspension was allowed on
depositing Rs. 5,48,000/- out of Rs.7,40,000/- in a cheque bounce case.
Reliance is also placed on CRR No. 2640 of 2024 (Smt. Deepa Ragde Vs.
Shri Neelesh Chourasiya) – order dated 28.06.2024 in which Hon’ble
Coordinate Bench in a N.I. Act Revision allowed suspension on deposit of
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30% of compensation amount.
10. It was also argued that the case of Satish Sharma Vs.
Dharmendra Shukla in Criminal Revision No. 1124/25 judgement dated 05-
08-2025 does not lay down the correct law as it does not refer to the
judgment of Vivek Rai (Supra) in correct legal spirit.
11. Reference is also made to revision in Maqbul Khan Vs. The
Regional Officer, Pollution Control Board Rewa in CRR No. 2487/2021 –
order dated 07-02-2022 in which Hon’ble Coordinate Bench dismissed the
application for exemption from surrender but Hon’ble Supreme Court in SLP
1860/22 order dated 04-03-2022 exempted the petitioner from surrendering
(meanwhile) thereafter vide order dated 08-07-2022 Hon’ble Coordinate
Bench granted suspension of sentence.
12. Therefore, it is prayed in the instant I.A. 22874/25 that on the
basis of the above-mentioned order of Hon’ble Coordinate bench of this
Court exemption from surrender should be granted.
13. Whereas counsel for the respondent relying on the judgment of
Hon’ble Supreme Court in the case of SLP (Criminal) Diary No. 20900/2024
( Daulat Singh Vs State of M.P. ) – judgment dated 30-7-2024, has argued
that Supreme Court has held that accused has to be in custody before the
revision is considered by the High Court.
14. Judgment of Malkhan Singh Vs. Mohar Singh – CRR 5301 /24
judgement dated 13-11-2024 and orders dated 09.07.2025 passed in Dinesh
Mohaniya Vs. State of M.P. – CRR 2714/2024 and Gurmit Singh Vs.
Niranjan Singh – CRR No. 5126/2019 wherein custody was held mandatory.
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15. Therefore, there are two views, one regarding requirement of
surrendering before the hearing of revision in High Court and another is that
surrender is not mandatory.
16. While in the case of Vivek Rai (Supra) challenge was made to
Rule 159 of Jharkhand High Court rules, 2001 in which challenge was
dismissed by Hon’ble Supreme Court. In the case of Daulat Singh (Supra)
Hon’ble Supreme Court in para 9 also held that though not similarly worded,
Rule 159 of the 2001 Rules bears resemblance with Rule 48 of the 2008
Rules and while seeking to demand the same requirement is intended to
achieve the same purpose as Rule 48.
In the case of Daulat Singh (Supra) in paragraph 10, Hon’ble Supreme
Court has also held that on reading paragraph 11 of the decision in Vivek Rai
(Supra), concession was given by the learned counsel appearing in 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 cases.
Paragraph 11 of the judgment in Vivek Rai (Supra) is reproduced as
below :-
“11. It has not been disputed even by the learned counsel for the High Court
that the Rule does not affect the inherent power of the High Court to exempt
the requirement of surrender in exceptional situations.”
Whereas, in the case of Daulat Singh (Supra) in a matter related to
the Prevention of Food Adulteration Act, 1954, Hon’ble Supreme
Court held that custody of the reversioner is required and although
Hon’ble Supreme Court held that reference to a larger Bench is
desirable but in the fact and circumstances of the case as the
applicant Daulat Singh failed to prove any exceptional
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circumstances including his illness his petition was dismissed and
reference to larger Bench was not made.
17. In the case of Malkhan Singh (Supra) in matter under N.I.A.
Act requirement of surrender was held mandatory in the light of
Daulat Singh (Supra). In the case of Dinesh Mohaniya (Supra) a
case under Negotiable Instruments Act considering all the grounds
and Rule 48 of MP High Court Rules 2008, it was held that
surrender is a must and directed the appellant to surrender before
the Trial Court.
18. In the case of Satish Sharma (Supra) it was held by Hon’ble
Coordinate Bench that surrender is a requirement for considering
the revision and this case is also related to Negotiable Instrument
Act, same is the view of Co-ordinates Branch in the Judgement of
Brij Kishore Vs. Gouri Shanker (Mrat) Dwara Smt. Jaijuvar –
CRR No. 2141 of 2025, judgment dated 4.9.2025, which also
relied on the Judgement of Satish Sharma (Supra) and Daulat
Singh (Supra).
19. Therefore, it is seen that judgement of Sanjay Nagayach Vs.
State of M.P. CRR 729/24 order dated 20-02-2024 can no longer
be held binding in the light of the subsequent Judgements of the
Hon’ble Supreme Court in the case of Daulat Singh (Supra) dated
30-07-24. Besides the above legal facts in the case before this
court no ground is made of any sort regarding illness etc. on which
exemption from surrender is sought.
20. At the time of arguments, learned Sr. Counsel submitted that
in this case contrary to the provisions of Negotiable Instruments
Act notice of only 10 days was given when the cheque was
dishonoured whereas the minimum notice period is 15 days as per
Section 138 of the Negotiable Instruments Act but on this point
case is not being head on merit but only considered whether
surrender is must or not in the facts and circumstances of the case.
21. Accordingly, I.A. 22874/25 for exemption from surrender
cannot be allowed on any ground either under exceptional
circumstances or on any legal basis in the fact and circumstances
of this case. Accordingly I.A. 22874/25 is dismissed.
List after one week.”
In that order, this Court has considered the effect of judgment of
Hon’ble Supreme Court in the case of Vivek Rai. It is seen that in this case no
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application is filed for exemption from surrender. Hence, in the light of the
order as discussed in the case of Gudda Raikwar (Supra) in which the
judgment of Hon’ble Supreme Court is also considered and so also the
judgments of Hon’ble Coordinate Bench, this revision, which is time barred
revision is not maintainable.
Hence, this revision is dismissed as not maintainable.
(AVANINDRA KUMAR SINGH)
JUDGE
VSG
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