# Praveen Kumar Agarwal Revisionist v. State of U.P. & Ors

- **Citation:** (2025) 3 ILRA 480
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-03-04
- **Case number:** Criminal Revision No. 6045 of 2024
- **Bench:** Manjive Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/praveen-kumar-agarwal-revisionist-v-state-of-u-p-ors-53214
- **Pages:** 17

## Headnote

CRIMINAL LAW - Revisional Jurisdiction -
Conviction
under
Section
138
of
Negotiable
Instruments
Act,
1881
-
Dismissal
of
appeal
due
to
nonappearance - Maintainability of revision
without surrender - Rule 3(4), Chapter
XVIII, Part III of Allahabad High Court
Rules, 1952 - Mandatory requirement of
surrender before filing revision - No
application
seeking
exemption
from
surrender filed - Observed, requirement of
filing
surrender
certificate
not
inconsistent with Sections 397 and 401
CrPC - Convict has to either be in custody
or seek exemption based on exceptional
circumstances - Discretionary jurisdiction
under
revisional
powers
not
to
be
exercised in absence of compliance or
justification - However, liberty granted to
file fresh revision upon compliance with
rules- Held, revision not maintainable and
liable to be dismissed. (Paras 20, 21, 23,
24, 25, 27, 28, 30, 32, 33, and 34)

HELD:
Section 397 Cr.P.C. and Section 401 Cr.P.C. do
not provide that the High Court would refuse to
entertain the criminal revision if the accused,
after his conviction and dismissal of his appeal,
has not surrendered before the court concerned.
However, it is noteworthy that the remedy in the
form of criminal revision is a discretionary
remedy and it is the discretion of the High Court
to entertain a criminal revision or to refuse to
entertain it. (Para 21)

Rule 3(4) of Chapter XVIII of Part III of the
Rules of 1952 provides that in a case in which
sentence of imprisonment has been awarded,
the application for revision shall also contain a
certificate signed by the Advocate for the
applicant or the applicant, stating therein that
the accused was not on bail or that, if he was
on bail, he has surrendered to it. Rule 2 of
Chapter XVIII of Part III of the Rules of 1952
further provides that where the Bench before
which a motion is made for the admission of a
petition of appeal or an application for revision
or other application finds that it is not
accompanied by the requisite papers, if any, or
is otherwise not in order or has not been
presented within time to it, may decline to
receive it or reject it or pass such other order as
it may consider fit. (Para 23)

From a bare perusal of the language used by
the rule making authority in Rule 3(4) of
Chapter XVIII of Part III of the Rules of 1952, it
is patently manifest that there is a mandatory
requirement that if a person had been convicted
and had been sentenced for imprisonment,
while filing application for revision, he shall file a
certificate along with the revision stating therein
that either he was not on bail or if he was on
bail, he had surrendered to it. The rule making
authority knowingly had used the words "shall
also contain a certificate" to make it crystal clear
that the revisionist to make his revision in order,
3 All. Praveen Kumar Agarwal Vs. State of U.P. & Ors.
481
has to compulsorily file a certificate of his
surrender before the court concerned and once
the said r

## Text

_Characters 0–39,979 of 56,609. This is a partial read: ask again with offset=39979 for what follows._

480 INDIAN LAW REPORTS ALLAHABAD SERIES
to Case Crime No. 509 of 2021 under
Section 8/21 of N.D.P.S. Act, 1985, is
hereby set-aside.

21. The learned Special Judge
(N.D.P.S.)/Additional District and Sessions
Judge, Court No. 12, Saharanpur is directed
to reconsider the application filed by the
revisionist for release of vehicle i.e. Innova
Car bearing Registration No. HR78-3205
on its merits, strictly in accordance with the
law laid down by the Hon'ble Supreme
Court in the case of Bishwajit Dey (Supra).
----------
(2025) 3 ILRA 480
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.03.2025

BEFORE

THE HON'BLE MANJIVE SHUKLA, J.

Criminal Revision No. 6045 of 2024

Praveen Kumar Agarwal ...Revisionist
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Revisionist:
Padmakar Pandey

Counsel for the Respondents:
G.A.

CRIMINAL LAW - Revisional Jurisdiction -
Conviction
under
Section
138
of
Negotiable
Instruments
Act,
1881
-
Dismissal
of
appeal
due
to
nonappearance - Maintainability of revision
without surrender - Rule 3(4), Chapter
XVIII, Part III of Allahabad High Court
Rules, 1952 - Mandatory requirement of
surrender before filing revision - No
application
seeking
exemption
from
surrender filed - Observed, requirement of
filing
surrender
certificate
not
inconsistent with Sections 397 and 401
CrPC - Convict has to either be in custody
or seek exemption based on exceptional
circumstances - Discretionary jurisdiction
under
revisional
powers
not
to
be
exercised in absence of compliance or
justification - However, liberty granted to
file fresh revision upon compliance with
rules- Held, revision not maintainable and
liable to be dismissed. (Paras 20, 21, 23,
24, 25, 27, 28, 30, 32, 33, and 34)

HELD:
Section 397 Cr.P.C. and Section 401 Cr.P.C. do
not provide that the High Court would refuse to
entertain the criminal revision if the accused,
after his conviction and dismissal of his appeal,
has not surrendered before the court concerned.
However, it is noteworthy that the remedy in the
form of criminal revision is a discretionary
remedy and it is the discretion of the High Court
to entertain a criminal revision or to refuse to
entertain it. (Para 21)

Rule 3(4) of Chapter XVIII of Part III of the
Rules of 1952 provides that in a case in which
sentence of imprisonment has been awarded,
the application for revision shall also contain a
certificate signed by the Advocate for the
applicant or the applicant, stating therein that
the accused was not on bail or that, if he was
on bail, he has surrendered to it. Rule 2 of
Chapter XVIII of Part III of the Rules of 1952
further provides that where the Bench before
which a motion is made for the admission of a
petition of appeal or an application for revision
or other application finds that it is not
accompanied by the requisite papers, if any, or
is otherwise not in order or has not been
presented within time to it, may decline to
receive it or reject it or pass such other order as
it may consider fit. (Para 23)

From a bare perusal of the language used by
the rule making authority in Rule 3(4) of
Chapter XVIII of Part III of the Rules of 1952, it
is patently manifest that there is a mandatory
requirement that if a person had been convicted
and had been sentenced for imprisonment,
while filing application for revision, he shall file a
certificate along with the revision stating therein
that either he was not on bail or if he was on
bail, he had surrendered to it. The rule making
authority knowingly had used the words "shall
also contain a certificate" to make it crystal clear
that the revisionist to make his revision in order,
3 All. Praveen Kumar Agarwal Vs. State of U.P. & Ors.
481
has to compulsorily file a certificate of his
surrender before the court concerned and once
the said requirement is not fulfilled, it would be
the discretion of the High Court to reject the
revision as per the provisions made in Rule 2 of
Chapter XVIII of Part III of the Rules of 1952.
Further, the aforesaid Rule 2 of Chapter XVIII of
Part III of the Rules of 1952 also gives
discretion to the High Court that in exceptional
circumstances, the High Court can consider the
request for exempting the revisionist from filing
such certificate. (Para 24)

This Court is of the view that Rule 2 and Rule
3(4) of Chapter XVIII of Part III of the Rules of
1952 are not inconsistent with the provisions
made in Section 397 Cr.P.C. and Section 401
Crt.P.C. and if they are read together, they lead
to a conclusion that normally the revisionist,
while filing a criminal revision, has to file a
certificate stating therein that either he was not
on bail during trial and appeal or if he was on
bail, he had surrendered to it but in exceptional
circumstances, the revisionist can come forward
and
demonstrate
those
exceptional
circumstances before the High Court and can
seek exemption from filing such certificate but if
such exemption has not been claimed, the
revision filed by the convict without surrender
before the court concerned would not be
entertained by the High Court. (Para 25)

The Hon'ble Supreme Court in the aforesaid
judgment rendered in the case of Vivek Rai
(supra) had categorically recorded a finding that
it is a well known practice that generally a
revision against the conviction and sentence of
imprisonment is filed after the appeal is
dismissed and the convicted person is taken into
custody. The Hon'ble Supreme Court in its
judgment had further held that the rules framed
by the High Court of Jharkhand for regulating its
procedure and thereby providing that for filing a
criminal revision under Section 397 Cr.P.C. read
with Section 401 Cr.P.C., the convict has to first
surrender before the court concerned and only
thereafter
his
criminal
revision
can
be
entertained by the High Court, are in no way
inconsistent with the provisions made in Section
397 Cr.P.C. and 401 Cr.P.C. The Hon'ble Supreme
Court in its judgment had also held that there is
always a discretion with the High Court that if in
extraordinary circumstances, the convict seeks
exemption from surrender, he can file an
application before the High Court and that
application can always be considered and the
discretion can be exercised by the High Court.
(para 30)

Now, this Court proceeds to consider the
purport of Rule 2 and Rule 3(4) of Chapter XVIII
of Part III of the Rules of 1952 in the matter of
criminal revision under Section 397 Cr.P.C. read
with Section 401 Cr.P.C., in the light of the
aforesaid judgments rendered by the Hon'ble
Supreme Court and the High Court of Madhya
Pradesh at Indore. It is apparent that Sections
235, 248 and 353 Cr.P.C. categorically provide
that on conviction of an accused, he has to
surrender before the court concerned and in his
presence, the court would take decision in
respect of the sentence. If the provisions made
in the different sections of the Code of Criminal
Procedure are considered together, it is patently
manifest that after conviction, it is obligatory on
the convict to surrender before the trial court
and if he has not surrendered, it is duty of the
court concerned to ensure the surrender of the
convict before it. (Para 32)

The Allahabad High Court had framed rules
known as Allahabad High Court Rules, 1952.
Rule 2 read with Rule 3(4) of Chapter XVIII of
Part III of the Rules of 1952 categorically
provide that a convict should file a certificate
along with the criminal revision certifying that,
either he was not on bail or if he was on bail, he
had surrendered before it and once the said
certificate is not accompanied with the revision,
it would not be in order and would be liable to
be rejected by the High Court. It is noteworthy
that the rule making authority in Rule 3(4) of
Chapter XVIII of Part III of the Rules of 1952
had intentionally used the words "shall also
contain a certificate" thereby to make the
requirements under the rule mandatory for the
revisionist meaning thereby that unless the
convict, while filing criminal revision under
Section 397 Cr.P.C. read with Section 401 Cr.P.C.
gives a certificate that he had surrendered, the
criminal revision would not be in order and
would not be entertained by the High Court.
However, if Rule 2 is read with Rule 3(4) of
Chapter XVIII of Part III of the Rules of 1952,
that leaves the scope for filing an application
seeking exemption from surrender by the
482 INDIAN LAW REPORTS ALLAHABAD SERIES
revisionist on the basis of some extraordinary
circumstances and if the said exemption is
prayed for, the High Court can take into
consideration the said application seeking
exemption and can pass necessary order. (Para
34)

In
view
of
the
aforesaid
facts
and
circumstances, particularly keeping in view the
provisions of Rule 2 and Rule 3(4) of Chapter
XVIII of Part III of the Rules of 1952 and further
keeping in view that the remedy of revision
provided under Section 397 Cr.P.C. read with
Section 401 Cr.P.C. is a discretionary remedy,
this Court declines to exercise its discretion to
entertain this revision. (para 36)

Revision Application dismissed. (E-14)

List of Cases cited:

1. Vivek Rai & anr. Vs High Court of Jharkhand
through Registrar General & anr., (2015) 12 SCC
86

2.
Criminal
Revision
No.1912
of
2024,
Devnarayan Vs Prateek Goenka

3. Bihari Prasad Singh Vs St. of Bihar & anr.,
(2000) 10 SCC 346

(Delivered by Hon'ble Manjive Shukla, J.)

1. Heard Sri Prakash Naik, learned
Senior Advocate, assisted by Sri Tapan
Thattey and Sri Padmaker Pandey, learned
counsels appearing for the revisionist, Sri
Brajendra Pratap Singh, learned Additional
Government Advocate appearing for the
State and Sri Sushil Kumar Shukla and Sri
R.K. Singh Chandel, learned counsels
appearing for Opposite Party No. 2.

2. The instant revision has been filed
under Section 397 Cr.P.C. read with Section
401 Cr.P.C. challenging therein, the judgment
and order dated 21.8.2024 passed by the
learned Sessions Judge in Criminal Appeal
No.105 of 2022 and Criminal Appeal No.177
of 2022 whereby, the appeal filed by the
revisionist i.e. Criminal Appeal No.105 of
2022 had been dismissed due to absence of
the appellant before the appellate court and
Criminal Appeal No.177 of 2022 had been
allowed and the fine imposed by the trial
court vide order dated 26.8.2022 had been
enhanced
from
Rs.32,31,50,000/-
to
Rs.64,63,00,000/-.

Brief facts of the case

3. The Opposite Party No.2 filed a
complaint case, alleging therein that the
revisionist had committed offence punishable
under Section 138 of the Negotiable
Instruments Act, 1881 (hereinafter referred to
the 'Act of 1881'). The revisionist appeared
before the trial court and was enlarged on
bail. Later on, the Compliant Case No.6352
of 2016 had been decided vide judgment and
order
dated
26.8.2022
whereby,
the
revisionist had been convicted for the offence
punishable under Section 138 of the Act of
1881 and had been sentenced for simple
imprisonment of two years along with fine of
Rs.32,31,50,000/-. The revisionist filed an
appeal against the aforesaid order of the trial
court dated 26.8.2022 and the said appeal was
numbered as Criminal Appeal No.105 of
2022. The Opposite Party No.2 also
challenged the order dated 26.8.2022 passed
by the trial court by filing Criminal Appeal
No.177 of 2022 wherein, the prayer was
made for enhancement of the amount of fine
imposed by the trial court.

4. The aforesaid both the criminal
appeals i.e. Criminal Appeal No.105 of 2022
and Criminal Appeal No.177 of 2022 were
connected and heard together by the appellate
court.

5. The present revisionist was
granted interim bail by the trial court, till he
3 All. Praveen Kumar Agarwal Vs. State of U.P. & Ors.
483
files the appeal and therefore, he after filing
of the appeal, filed an application before
the appellate court for suspension of the
execution of the sentence awarded by the
trial court and on that application, the
appellate court passed order on 20.9.2022
directing the appellant to deposit 50% of
the amount of fine i.e. Rs.16,15,50,000/-
and further provided that the plea of
suspension of sentence shall be considered
after deposit of the said 50% of the amount
of fine. The present revisionist did not
comply with the aforesaid order dated
20.9.2022 and challenged the same by
filing a petition before this Court under
Section 482 Cr.P.C.

6. Ultimately, the appellate court
had decided both the aforesaid criminal
appeals i.e. Criminal Appeal No.105 of
2022 and Criminal Appeal No.177 of 2022
by a common judgment and order dated
21.8.2024.

7. The appellate court in its
judgment and order dated 21.8.2024 had
recorded a finding that the appellant i.e. the
present revisionist has been continuously
absent before the appellate court therefore,
the appeal had been dismissed in default.
The learned appellate court vide order
dated 21.8.2024 had allowed Criminal
Appeal No.177 of 2022 whereby, the fine
imposed against the present revisionist vide
order dated 26.8.2022 passed by the trial
court,
had
been
enhanced
from
Rs.32,31,50,000/- to Rs.64,63,00,000/-

Submissions
on
behalf
of
Opposite Party No.2

8. Sri Sushil Kumar Shukla,
learned counsel appearing for Opposite
Party No. 2, at the very outset, has raised a
preliminary
objection
regarding
maintainability of this revision on the
ground that the revisionist has not complied
with the provisions of Rule 3(4) of Chapter
XVIII of Part III of the Allahabad High
Court Rules, 1952 (hereinafter referred to
as the 'Rules of 1952') whereunder, it is
mandatory that after dismissal of the appeal
filed against the order of conviction, the
convicted person must surrender before the
court concerned and thereafter he may file
a criminal revision under Section 397
Cr.P.C. read with Section 401 Cr.P.C.
annexing therewith the certificate stating
therein that either the revisionist was not on
bail or after dismissal of his appeal, he has
surrendered before the court concerned but
in the revision in hand, no such certificate
has been annexed. Sri Sushil Kumar
Shukla, learned counsel appearing for
Opposite Party No. 2 has also submitted
that even the revisionist, while filing the
instant criminal revision, has not filed any
application seeking exemption from filing
of the mandatory certificate to the effect
that either the revisionist was not on bail or
after dismissal of the appeal, he has
surrendered before the court concerned
therefore, the criminal revision filed by the
revisionist is not maintainable and as such,
is liable to be dismissed by this Court.

9. Sri Sushil Kumar Shukla,
learned counsel appearing for Opposite
Party No. 2 has submitted that Rule 3(4) of
Chapter XVIII of Part III of the Rules of
1952 provides that a criminal revision shall
contain a certificate signed by the Advocate
of the revisionist or the revisionist stating
therein that the accused was not on bail or
if he was on bail, he had surrendered to it.
It has further been submitted that the
revisionist had been convicted by the trial
court for the offence punishable under
Section 138 of the Act of 1881 and had
been sentenced for simple imprisonment of
484 INDIAN LAW REPORTS ALLAHABAD SERIES
two years but the revisionist, in terms of the
order of conviction, has not surrendered
before the court concerned. The appeal
filed by the revisionist against the order of
conviction had also been dismissed vidc
order dated 21.08.2024 but instead of
surrendering before the court concerned,
the revisionist straightaway had filed the
instant criminal revision.

10. Learned counsel appearing for
Opposite Party No.2 has argued that the
language used by the rule making authority
in Rule 3(4) of Chapter XVIII of Part III of
the Rules of 1952, makes it mandatory for
the accused to surrender before the court
concerned and thereafter to file a criminal
revision, against the order of the trial court
and the order passed by the appellate court,
before this Court under Section 397 Cr.P.C.
read with Section 401 Cr.P.C. It has further
been argued that the common practice in
the Hon'ble Supreme Court as well as in
different High Courts across the country is
that once a person had been convicted by
the trial court and his appeal had been
dismissed, he has to surrender before the
court concerned and only thereafter he can
be allowed to file a criminal revision under
Section 397 Cr.P.C. read with Section 401
Cr.P.C. or he can avail any other remedy
available under law.

11. Learned counsel appearing for
Opposite Party No. 2 has emphatically
submitted
before
this
Court
that
the
revisionist is anyhow trying to avoid his
surrender before the court however, after his
conviction by the trial court it is mandatory
that he should surrender before the court
concerned and if he does not surrender, it is
obligatory on the trial court to ensure his
surrender. It has further been submitted that
the basic principle is that once a person had
been convicted and his appeal against the
order of conviction had been dismissed, he
must show respect to the orders passed by the
courts and should surrender before the court
concerned, only thereafter the High Court
would exercise its discretionary jurisdiction
enshrined under Section 397 Cr.P.C.

12. Sri Sushil Kumar Shukla,
learned counsel appearing for Opposite Party
No. 2 has relied on the judgment rendered by
the Hon'ble Supreme Court in the case of
Vivek Rai and Another Vs. High Court of
Jharkhand through Registrar General and
another, (2015) 12 SCC 86 and the judgment
dated 28.5.2024 rendered by the High Court
of Madhya Pradesh at Indore in Criminal
Revision No.1912 of 2024, Devnarayan Vs.
Prateek Goenka. It has been argued on
behalf of Opposite Party No.2 that the law
laid down in the aforesaid judgments makes it
mandatory that the revisionist should first
surrender before the court concerned and
only thereafter his revision can be entertained
and heard by the High Court.

13. It has also been argued on behalf
of Opposite Party No.2 that even otherwise
the revisionist, while filing the instant
revision, has not filed any application seeking
exemption
from
complying
with
the
mandatory requirements under Rule 3(4) of
Chapter XVIII of Part III of the Rules of
1952 therefore, there is no occasion for this
Court to exercise its inherent power to grant
exemption
to
the
revisionist
from
surrendering before the court concerned and
to entertain the revision.

Submissions on behalf of the
revisionist

14. Sri Prakash Naik, learned
Senior
Advocate
appearing
for
the
revisionist has submitted that the provisions
contained in Rule 3(4) of Chapter XVIII of
3 All. Praveen Kumar Agarwal Vs. State of U.P. & Ors.
485
Part III of the Rules of 1952 are in respect
of the contents of the revision but it is
nowhere provided that if the certificate
mentioning
therein
that
either
the
revisionist was not on bail or if he was on
bail, he had surrendered before the court
concerned, is not annexed with the criminal
revision, the High Court would not
entertain
the
revision
therefore,
the
preliminary objection raised on behalf of
Opposite Party No.2, on its face, is
misconceived and is liable to be rejected.

15. Sri Prakash Naik, learned
Senior
Advocate
appearing
for
the
revisionist has argued that the substantive
provision regarding the remedy of revision
available to the revisionist is Section 397
Cr.P.C. and the said section nowhere
provides that the revisionist first has to
surrender before the court concerned and
only
thereafter
his
revision
can
be
entertained by the High Court therefore,
even if the requirements under Rule 3(4) of
Chapter XVIII of Part III of the Rules of
1952 are missing, this Court cannot refuse
to entertain the instant criminal revision on
the ground that after dismissal of the
appeal, the revisionist has not surrendered
before the court concerned. It has further
been argued that the appeal filed by the
revisionist against the order of conviction
and sentence had been dismissed by the
appellate court only due to continuous
absence of the revisionist before the
appellate court i.e. the appeal had been
dismissed for want of prosecution whereas,
it is well settled proposition of law that the
appeal filed against the order of conviction
and sentence is to be decided on its own
merit and it cannot be dismissed for want
of prosecution.

16. Sri Prakash Naik, learned
Senior
Advocate
appearing
for
the
revisionist has relied on the judgment
rendered by the Hon'ble Supreme Court in
the case of Bihari Prasad Singh vs. State
of Bihar and another, (2000) 10 SCC 346
and has submitted that the Hon'ble
Supreme Court in the said judgment had
categorically held that in the Code of
Criminal Procedure, there is no such
provision which authorizes the High Court
to dismiss the application for revision only
because the convict has not surrendered.

17. Learned Senior Advocate
appearing for the revisionist has thus
concluded his arguments and has submitted
that the preliminary objection raised on
behalf of Opposite Party No.2, regarding
maintainability of this criminal revision, is
absolutely misconceived and is liable to be
rejected by this Court and further the
revision may be allowed and the matter
may be remanded to the appellate court to
consider and decide the appeal filed by the
revisionist, on merit.

Analysis of the arguments and
conclusions

18. I have heard the arguments
advanced by the learned counsels appearing
for the parties and have perused the
documents filed by the parties before this
Court.

19. The revisionist has filed the
instant criminal revision under Section 397
Cr.P.C. read with Section 401 Cr.P.C. For
ready reference, Section 397 Cr.P.C. and
Section 401 Cr.P.C. are extracted as under:-

"397. Calling for records
to exercise of powers of revision.-
(1) The High Court or any Sessions
Judge may call for and examine the
record of any proceeding before
486 INDIAN LAW REPORTS ALLAHABAD SERIES
any inferior Criminal Court situate
within its or his local jurisdiction
for the purpose of satisfying itself
or himself as to the correctness,
legality or propriety of any finding,
sentence or order, recorded or
passed, and as to the regularity of
any proceedings of such inferior
Court, and may, when calling, for
such
record,
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 pending
the examination of the record.
Explanation.-All
Magistrates, whether Executive or
Judicial, and whether exercising
original or appellate jurisdiction,
shall be deemed to be inferior to
the Sessions Judge for the purposes
of this sub-section and of section
398.
(2) The powers of revision
conferred by sub-section (1) shall
not be exercised in relation to any
interlocutory order passed in any
appeal, inquiry, trial or other
proceeding.
(3) If an application under
this section has been made by any
person either to the High Court or
to the Sessions Judge, no further
application by the same person
shall be entertained by the other of
them."
"401. High Court's powers
of revision.-(1) In the case of any
proceeding the record of which has
been called for by itself or which
otherwise comes to its knowledge,
the
High Court
may,
in
its
discretion, exercise any of the
powers conferred on a Court of
Appeal by sections 386, 389, 390
and 391 or on a Court of Session
by section 307, and, when the
Judges composing the Court of
Revision are equally divided in
opinion, the case shall be disposed
of in the manner provided by
section 392.
(2) No order under this
section shall be made to the
prejudice of the accused or other
person unless he has had an
opportunity of being heard either
personally or by pleader in his own
defence.
(3) Nothing in this section
shall be deemed to authorise a
High Court to convert a finding of
acquittal into one conviction.
(4) Where under this Code
an appeal lies and no appeal is
brought, no proceeding by way of
revision shall be entertained at the
instance of the party who could
have appealed.
(5) Where under this Code
an appeal lies but an application
for revision has been made to the
High Court by any person and the
High Court is satisfied that such
application was made under the
erroneous belief that no appeal lies
thereto and that it is necessary in
the interests of Justice so to do, the
High
Court
may
treat
the
application for revision as a
petition of appeal and deal with the
same accordingly."

20. The aforesaid Section 397
Cr.P.C. provides that the High Court or any
Sessions Judge may call for and examine
the record of any proceeding before any
inferior Criminal Court situate within its or
his local jurisdiction for the purpose of
satisfying itself; to the correctness, legality
3 All. Praveen Kumar Agarwal Vs. State of U.P. & Ors.
487
or propriety of any finding, sentence or
order, recorded or passed, and as to the
regularity of any proceedings of such
inferior Court, and may, when calling, for
such record, direct that the execution of any
sentence or order be suspended, and if the
accused is in confinement that he be
released on bail on his own bond pending
the examination of the record.

21. Section 397 Cr.P.C. and
Section 401 Cr.P.C. do not provide that the
High Court would refuse to entertain the
criminal revision if the accused, after his
conviction and dismissal of his appeal, has
not surrendered before the court concerned.
However, it is noteworthy that the remedy
in the form of criminal revision is a
discretionary remedy and it is the discretion
of the High Court to entertain a criminal
revision or to refuse to entertain it.

22. The Allahabad High Court had
framed Allahabad High Court Rules, 1952
for regulating its procedure. For ready
reference, Rule 2 and Rule 3 of Chapter
XVIII of Part III of the Rules of 1952 are
extracted as under:-

2. Order of Court on
motion to admit an appeal or
application :- Where the Bench
before which a motion is made for
the admission of a petition of
appeal or an application for
revision or other application finds
that it is not accompanied by the
requisite papers, if any, or is
otherwise not in order or has not
been presented within time it may
decline to receive it or reject it or
pass such other order as it may
consider fit.
Where it finds that such
petition or application is in order,
has been presented within time and
is accompanied by the requisite
papers, if any, it may-
(i) in the case of petition of
appeal make an order admitting it
and directing notice to be issued;
and
(ii) in the case of an
application for revision or other
application dismiss it or direct
notice to be issued or pass such
other order as it may deem fit :
Provided
that
nothing
contained
in
this
Rule
shall
preclude the Bench from dismissing
any petition of appeal [under
Section 384 of the Code of
Criminal Procedure, 1973], or
require notice of an application to
be issued where notice of such
application
has
already
been
served upon the other party or his
Advocate."

"3. Contents of petition of
appeal or application for revision
or other application :- (1) Every
petition of appeal or application
for revision or other application
shall
be
accompanied
by
date/eventwise synopsis of the case
and shall further state-

(a) the name and, where
the appeal or revision is not on
behalf of State, the address, of each
appellant or applicant;
(b) the name and, where
the opposite party is not the State,
the address, if available, of each
opposite party;
(c) the Court of whose
order the appeal or revision is filed
and the name of presiding officer of
such Court;
488 INDIAN LAW REPORTS ALLAHABAD SERIES
(d) the nature of the order
passed
including
the
sentence
awarded, if any, by such Court;
(e) the provisions of law
defining the offence of which the
accused person was convicted or
acquitted by such Court or under
which he was dealt with by such
Court;
(f) the ground or grounds,
numbered
consecutively,
of
objection to the order from which
the appeal or revision is filed;
(g) the relief sought; and
shall be signed by the appellant or
the applicant, as the case may be,
or by an Advocate on his behalf.
(2) If the advocates are
relying upon any judgement, they
must
have
three
photocopies
thereof ready, two for the Judges
and one for the other side.
(3) A petition of appeal
from
an
appellate
order
or
acquittal or an application for the
revision of an order passed in
appeal or revision shall also state
the name and description of the
Court which tried the case in the
first instance and the nature of the
order passed by it.
(4) In a case in which a
sentence of imprisonment has been
awarded the petition of appeal or
the application for revision shall
also contain a certificate signed by
the Advocate for the appellant or
the applicant, as the case may be,
stating that the accused was not on
bail or that, if he was on bail, he
has surrendered to it. In a case in
which bail has been granted by the
Court appealed from order subsection (3) of Section 389 of the
Code of Criminal Procedure, 1973,
the fact shall be stated in the
petition of appeal indicating the
period for which such bail has been
granted."

23. Rule 3(4) of Chapter XVIII of
Part III of the Rules of 1952 provides that
in
a
case
in
which
sentence
of
imprisonment has been awarded, the
application for revision shall also contain a
certificate signed by the Advocate for the
applicant or the applicant, stating therein
that the accused was not on bail or that, if
he was on bail, he has surrendered to it.
Rule 2 of Chapter XVIII of Part III of the
Rules of 1952 further provides that where
the Bench before which a motion is made
for the admission of a petition of appeal or
an application for revision or other
application finds that it is not accompanied
by the requisite papers, if any, or is
otherwise not in order or has not been
presented within time to it, may decline to
receive it or reject it or pass such other
order as it may consider fit.

24. From a bare perusal of the
language used by the rule making authority
in Rule 3(4) of Chapter XVIII of Part III of
the Rules of 1952, it is patently manifest
that there is a mandatory requirement that if
a person had been convicted and had been
sentenced for imprisonment, while filing
application for revision, he shall file a
certificate along with the revision stating
therein that either he was not on bail or if
he was on bail, he had surrendered to it.
The rule making authority knowingly had
used the words "shall also contain a
certificate" to make it crystal clear that the
revisionist to make his revision in order,
has to compulsorily file a certificate of his
surrender before the court concerned and
once the said requirement is not fulfilled, it
would be the discretion of the High Court
3 All. Praveen Kumar Agarwal Vs. State of U.P. & Ors.
489
to reject the revision as per the provisions
made in Rule 2 of Chapter XVIII of Part III
of the Rules of 1952. Further, the aforesaid
Rule 2 of Chapter XVIII of Part III of the
Rules of 1952 also gives discretion to the
High
Court
that
in
exceptional
circumstances, the High Court can consider
the request for exempting the revisionist
from filing such certificate.

25. This Court is of the view that
Rule 2 and Rule 3(4) of Chapter XVIII of
Part III of the Rules of 1952 are not
inconsistent with the provisions made in
Section 397 Cr.P.C. and Section 401
Crt.P.C. and if they are read together, they
lead to a conclusion that normally the
revisionist, while filing a criminal revision,
has to file a certificate stating therein that
either he was not on bail during trial and
appeal or if he was on bail, he had
surrendered to it but in exceptional
circumstances, the revisionist can come
forward and demonstrate those exceptional
circumstances before the High Court and
can seek exemption from filing such
certificate but if such exemption has not
been claimed, the revision filed by the
convict without surrender before the court
concerned would not be entertained by the
High Court.

26. The Hon'ble Supreme Court
had rendered a judgment in the case of
Bihari Prasad Singh vs. State of Bihar
and another, (2000) 10 SCC 346 and had
held that there is no provision in the Code
of Criminal Procedure that for invoking the
revisional jurisdiction of the High Court,
the person who had been convicted and his
appeal had been dismissed, must surrender
before the court concerned.

27. I have carefully gone through
the aforesaid judgment rendered by the
Hon'ble Supreme Court in the case of
Bihari Prasad Singh (supra) and it
transpires that the matter which was before
the Hon'ble Supreme Court arose from the
Patna High Court and it was found that in
the Patna High Court, there is no rule
requiring a convict to surrender before the
court concerned before filing of a criminal
revision and further there is no provision in
the Code of Criminal Procedure that if a
convict had not surrendered, his revision
would not be entertained by the High
Court. Now, when the aforesaid judgment
rendered by the Hon'ble Supreme Court is
seen with Rule 2 and Rule 3(4) of Chapter
XVIII of Part III of the Rules of 1952, it
becomes apparent that the rules applicable
in the Allahabad High Court make it
mandatory that a convict before filing a
criminal revision before the Allahabad
High Court must surrender in the court
concerned.

28. In view of Rule 3(4) of
Chapter XVIII of Part III of the Rules of
1952, this Court is of the view that the
aforesaid
judgment
rendered
by
the
Hon'ble Supreme Court in the case of
Bihari Prasad Singh (supra) is of no help
to the revisionist.

29. The Hon'ble Supreme Court in
its judgment rendered in the case of Vivek
Rai and Another Vs. High Court of
Jharkhand through Registrar General
and another, (2015) 12 SCC 86 had held
that Rule 159 of the Jharkhand High Court
Rules which provides that a convict before
filing a criminal revision under Section 397
Cr.P.C. read with Section 401 Cr.P.C. must
surrender before the competent court, is not
inconsistent with the provisions made in
Section 397 Cr.P.C. and Section 401 Cr.P.C.
The relevant paragraphs of the judgment
rendered by the Hon'ble Supreme Court in
490 INDIAN LAW REPORTS ALLAHABAD SERIES
the case of Vivek Rai (supra) are extracted
as under:-

"2. The rule in question is
as follows:
"159.
In
the
case
of
revision under Sections 397 and
401
of
Code
of
Criminal
Procedure, 1973 arising out of
conviction
and
sentence
of
imprisonment, the petitioner shall
state whether the petition shall be
accompanied by a certified copy of
the relevant order. If he has not
surrendered the petition shall be
accompanied by an application
seeking leave to surrender within a
specified period. On sufficient
cause being shown, the Bench may
grant such time and on such
conditions as it thinks and proper.
No such revision shall be posted for
admission unless the petitioner has
surrendered to custody in the court
concerned."
x x x x x x x x
6. We do not find any merit
in the challenge to the validity of
the Rule. It is well known practice
that generally a revision against
conviction and sentence is filed
after an appeal is dismissed and the
convicted person is taken into
custody in the Court itself. The
object of the Rule is to ensure that
a person who has been convicted
by two courts obeys the law and
does not abscond. The provision
cannot thus be held to be arbitrary
in any manner. The provision is to
regulate the procedure of the Court
and does not, in any manner,
conflict
with
the
substantive
provisions of the Cr.P.C. relied
upon by the petitioners.
7. A similar provision exists
in the Supreme Court Rules,
1966. In K.M. Nanavti vs. State of
Bombay this Court considered the
scope
and
effect
of
identical
provision of Order XXI Rule 6 of
the Supreme Court Rules, then
applicable, which read as follows :
"14... 'Where the petitioner
has been sentenced to a term of
imprisonment, the petition shall
state whether the petitioner has
surrendered.
Unless
the
court
otherwise orders, the petition shall
not be posted for hearing until the
petitioner has surrendered to his
sentence".
It was observed that the
Rule only crystalised the preexisting practice of this Court and
the High Courts. Further, question
considered was whether the Rule
violated
Article
161
of
the
Constitution which
conferred
power on Governor to suspend the
sentence as in that case, the
Governor
had
suspended
the
sentence but still the convict was
required
under
the
Rule
to
surrender. This Court held that
power of the Governor could not
regulate procedure of the Court
and if the case was to be heard by
this Court, unless this Court
granted
exemption,
the
Rule
prevailed. We are not concerned
with the said question in the
present case. Relevant observations
in the said judgemnt are :
"14. ........This Rule was, in
terms, introduced into the Supreme
Court Rules last year and it only
crystallized the preexisting practice
of this court, which is also the
practice in the High Courts. That
3 All. Praveen Kumar Agarwal Vs. State of U.P. & Ors.
491
practice is based on the very sound
principle which was recognised
long ago by the Full Bench of the
High Court of Judicature, North
Western Provinces, in 1870, in R. v.
Bisheshar Pershad. In that case no
order of conviction had been
passed. Only a warrant had been
issued against the accused and as
the warrant had been returned
unserved a proclamation had been
issued and attachment of the
property of the accused had been
ordered, with a view to compelling
him to surrender. The validity of the
warrant
had
been
challenged
before the High Court. The High
Court refused to entertain his
petition until he had surrendered
because he was deemed to be in
contempt of a lawfully constituted
authority. The accused person in
pursuance of the order of the High
Court surrendered and after he had
surrendered, the matter was dealt
with by the High Court on its
merits. But as observed above the
Rules framed under Article 145 are
only in aid of the powers of this
court under Article 142 and the
main
question
that
falls
for
consideration is, whether the order
of
suspension
passed
by
the
Governor under Article 161 could
operate when this court had been
moved for granting special leave to
appeal from the judgment and
order of the High Court. As soon as
the petitioner put in a petition for
special leave to appeal the matter
became sub judice in this court.
This court under its Rules could
insist
upon
the
petitioner
surrendering to his sentence as a
condition precedent to his being
heard by this court, though this
court could dispense with and in a
proper case could exempt him from
the operation of that Rule. It is not
disputed that this court has the
power to stay the execution of the
sentence and to grant bail pending
the disposal of the application for
special leave to appeal. Rule 28 of
Order 21 of the Rules does not
cover that period, but even so the
power of the court under Article
142 of the Constitution to make
such order as is necessary for
doing complete justice in this case
was not disputed and it would be
open to this court even while an
application for special leave is
pending to grant bail under the
powers it has under Article 142 to
pass any order in any matter which
is necessary for doing complete
justice.
xxxxxxxxxxxxxx
10. Only further submission
put forward is that inherent power
of the Court to direct listing of the
case by exempting the requirement
of surrender has been taken away.
It is pointed out that even in the
Supreme Court Rules prohibition
against listing without surrender is
not
applicable
if
the
Court
otherwise directs.