MP High Court Issues Notice On Plea Questioning Vires Of Rule Mandating Convict's Prior Surrender To Challenge Conviction

The Madhya Pradesh High Court has issued notice on a writ petition challenging the constitutionality of a provision under the MP High Court Rules 2008 mandating prior surrender by a convicted person as a pre-condition to challenge the conviction order. The plea asserts that Rule 48 is ultra vires the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which does not impose any such precondition of prior surrender before the filing of an appeal or revision. It contends that the rule infringes upon the rights of a convicted person under Articles 14, 19(1)(a) and 21 of the Constitution. The petitioner argued that by imposing an additional condition not contemplated by BNSS, Rule 48 exceeds the rule-making power of the High Court and is thus ultra vires the parent legislation.It thus seeks a direction to declare Rule 48 of the Madhya Pradesh High Court Rules 2008, insofar as it imposes a mandatory condition of prior surrender by a convicted person as a precondition for the maintainability of a criminal revision, as "ultra vires and is violative of Articles 14, 19 (1) (a) and 21 of the Constitution of India". It further seeks that the Rule be struck down to the extent of the pre-condition. and accordingly, be pleased to strike down the said Rule to that extent.The division bench of Acting Chief Justice Sanjeev Sachdeva and Justice Vinay Saraf in its order said, "Issue notice. Notice is accepted by the learned counsel for the respondent. Though State is not a party, we deem it expedient to issue notice to the State through the learned Advocate General. Notice is accepted by Shri Anubhav Jain, Government Advocate on behalf of the State. Let counter affidavit be filed within four weeks. List after four weeks". For context, Rule 48 under Chapter 10 states, "A memorandum of appeal or revision petition against conviction, except in cases where the sentence has been suspended by the Court below, shall contain a declaration to the effect that the convicted person is in custody or has surrendered after the conviction". Background:The court was hearing writ petition moved by Satish Sood, who was convicted by the Magistrate court in January this year for commission of the offences under the Madhya Pradesh Factories Rules and the MP Factories Act. Sood, along with a co-accused, was sentenced to 6 months rigorous imprisonment along with a fine of Rs. 1,35,000. The petitioner moved an appeal, which was dismissed by the sessions court in May, against which he moved the high court in a criminal revision petition. The petitioner also filed an application in the criminal revision seeking exemption from surrendering on the ground of apparent illegality in the conviction, asserting that he does not fall under the statutory category of 'occupier' or 'manager' as required under Section 92 of the Factories Act. Both the application and the criminal revision are pending before the high court. The petitioner thereafter moved a writ petition challenging Rule 48 of the MP High Court Rules claiming it to be ultra-vires. It raises the following question:"Whether a Criminal Revision Petition filed under Section 430 of BNSS by a convicted person challenging the judgment of conviction alongwith challenging the dismissal order of appeal, is maintainable before the Hon'ble High Court without the accused first surrendering to custody, or whether such surrender is a mandatory precondition for maintainability of the revision petition under the provisions of the Code of Criminal Procedure, 1973 (CrPC) or the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)?"The writ petition claims that the statutory scheme under the CrPC and BNSS does not mandate prior surrender to custody as a precondition for filing a Criminal Revision Petition against a judgment of conviction."Any requirement of surrender imposed through procedural rules or court practices would therefore be inconsistent with the express language of the statute. Such a condition introduces a substantive hurdle not envisaged by the legislature and would defeat the purpose of providing accessible statutory remedies to challenge a conviction. Hence, a revision petition filed by a convicted person is maintainable even in the absence of prior surrender and also without the custody," it adds. A complaint was filed alleging serious safety violations at a factory engaged in the production of Indian Made Foreign Liquor (IMFL). During an inspection on April 14, 2018, a coal bunker, aged around 12 to 13 years and improperly welded to a steel structure, collapsed due to poor maintenance.The incident reportedly led to the death of two workers and caused injuries to two others. The authorities cited multiple violations under the Factories Act, 1948 and Madhya Pradesh Rules, 1962. These included failure to report the accident, lack of safety shields on machinery, absence of a fire safety system, and incomplete records of contract workers; subsequently a criminal case was registered against Satish Sood, the...

MP High Court Issues Notice On Plea Questioning Vires Of Rule Mandating Convict's Prior Surrender To Challenge Conviction

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MP High Court Issues Notice On Plea Questioning Vires Of Rule Mandating Convict's Prior Surrender To Challenge Conviction

Jayanti Pahwa

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