TaxTMI 
TaxTMI 
TaxTMI 
2018 (11) TMI 1886
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....re, 1973 (Cr.P.C.) being Criminal Appeal No. 17/2014 against the aforesaid judgment and the Appellate Court, on receipt of the fresh appeal vide order dated 31.3.2014 passed the following order: "Heard. Appeal is admitted. Application for suspension of sentence is allowed for reason stated therein and sentence is suspended during the pendency of the present appeal. The appellant be released on bail on furnishing bail bond/personal bond in the sum of Rs. 10,000/- with one local surety of the like amount subject to satisfaction of the concerned trial court. Copy of the order be sent to the concerned court. Put up for arguments on 09.4.2014. In the meantime TCR be summoned for the next date of hearing." 4. Thereafter, the Appellate Court, vide order dated 29.8.2014 while dismissing the appeal, passed the following order: "Arguments heard. Vide my detailed separate order of even date application u/s. 340 Cr.P.C. moved by the appellant/accused is dismissed. Vide my detail order of even date, the present appeal is devoid of merits and same is hereby dismissed. TCR if any be sent back to Ld. Trial Court with copy of ....
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.... delivered by the appellate court, is unacceptable. Observations of the Single Bench of Bombay High Court (in case reported as Moinoddin, S/O. Khodboddin vs. State of Maharashtra, (2003) IILLJ 1040 Bom.) are relevant. Same reads as under:- "14. Reading proviso to Section 387 of the Criminal Procedure Code, it may be argued that, it is not mandatory upon the appellate Court to direct the accused to be brought up or required to attend, to hear the judgment delivered because of the words "shall not" incorporated in the proviso. However, this proviso is required to be read in the light of Section 387 read with Sections 353(5) and 353(6). Provisions regarding the judgment, as contained in Chapter XXVII of the Criminal Procedure Code are applicable to the judgment of subordinate appellate Court and in Section 387 also the words used are "shall apply". The proviso to Section 387, therefore, shall stand controlled by the provisions contained in Section 353(5) and 353(6) and, therefore, the subordinate appellate Court will be obliged to secure the presence of accused/appellant before it for pronouncement of judgment except in the cases wherein the judgment is of acquittal or one of ....
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....il to serve the sentence. Admittedly, in the present case, the accused was not present before the Appellate Court at the time of pronouncement of judgment and he did not surrender as per requirement of law, therefore, in absence of his surrender the present revision petition is not maintainable." 8. Further, in the matter of Mohammad Yusuf v. State of Rajasthan through P.P., Criminal Revision Petition No. 1148/2010, the Rajasthan High Court reiterated the principles followed in Ramesh Kumar (supra) and vide order dated 12.9.2011 held as under: "(4) ....... As is clear from sub-section (3) of Section 389 CrPC, at the time of pronouncement of judgment by the trial court, the accused may apply for suspension of sentence, showing his intention to appeal before the appellate court. The trial court may suspend the sentence for a period of one month for filing the appeal. After filing of the appeal under Section 374 CrPC, appellate court may exercise the power under Section 389 CrPC to suspend the sentence during the pendency of appeal, but while passing the judgment in appeal, the appellate court is not given discretion to exercise the power as provided under Section 389(3) CrPC....
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....ould not be pressed due to negligence of earlier counsel. Though this plea has not been raised by the petitioner No. 2 in his application but seems to have been raised by the learned counsel for the petitioner No. 2 as an afterthought to blame the earlier counsel to create a cause for not pressing the application for the suspension of the order on sentence. I am not convinced with this submission of the learned counsel for the petitioner No. 2. It is seen that it has become a habit to blame the earlier counsels without any basis, though the complaints against earlier counsels in some cases may be true but to substantiate such complaints, there should be some action or material from the side of the petitioner on the record. The petitioner No. 2 in this case has not complained against the earlier counsel to the Bar Council of Delhi or Bar Council of India in this regard at any point of time. The submissions made are required to be nipped in the bud. It is also not the case of the petitioner No. 2 that he had at any point of time asked his counsel about the suspension of the sentence. Even otherwise, this submission of the petitioner No. 2 has no bearing on the merits of the present a....