Prayer
Criminal Appeal filed under Section 374 Cr.P.C., against the conviction and sentence passed by the Principal Sessions Court, Namakkal, in S.C.No.120/2016 dated 04.03.2017.
Affidavit and its use
Argument for seeking supporting affidavit for bail
21. The learned counsel for the appellant submitted that along with this Criminal Appeal, the petitioner has filed a Miscellaneous Petition seeking suspension of sentence. The learned counsel for the appellant submitted that there is no “Form” prescribed for such a petition, either in the Code of Criminal Procedure or, in the Criminal Rules of Practice. He further submitted that an affidavit need be filed along with the same.
Analysis
No forms for petition seeking bail in Cr.P.C or Cr.R.P
24. Plainly speaking, neither in the Criminal Procedure Code nor in the Criminal Rules of Practice, there is any Form prescribed for a petition seeking bail, anticipatory bail or bail by suspending the sentence pending a Criminal Appeal.
25. As rightly pointed out by the learned Senior Counsel, under Section 382 Cr.P.C., the Criminal Procedure Code has prescribed that every appeal shall be made in the Form of petition in writing. Even Section 382 Cr.P.C., does not prescribe that such petition should be accompanied by any affidavit. If we look into Section 407(3) Cr.P.C., every petition seeking transfer, in a criminal case from one Court to another Court shall except when the applicant is the Advocate General of the State, be supported by an affidavit or affirmation.
No affidavit to be filed in support of a petition seeking bail including suspension of sentence pending criminal appeal
26. Had it been the intention of the legislature that a petition filed seeking anticipatory bail under Section 438 Cr.P.C., should be accompanied by an affidavit, as it has been prescribed under Section 407 Cr.P.C, the Code of Criminal Procedure would have prescribed for filing an affidavit in support of the petition seeking anticipatory bail. The very fact that no such prescription is found in Section 438 Cr.P.C., would go to show that it is the intention of the legislature that it is suffice if mere petition is filed seeking anticipatory bail and there is no need to file any affidavit. Similarly, no affidavit need be filed in support of a petition seeking suspension of sentence pending criminal appeal or a petition seeking bail.
The High court has got the power under article 227 of the constitution of India, but not done
27. Apart from that, under Section 227 of the Constitution of India, the High Court has got power of superintendence over all Courts and in exercise of the said power, the High Court is empowered to make and issue general Rules and prescribe forms for regulating the practice and proceedings of such Courts. Thus, prescribing form for anticipatory bail or for any other purpose and regarding the practice and proceedings of such Courts by issuing rules falls within the administrative domain of the High Court under Article 227 of the Constitution of India. Similarly, under Section 483 Cr.P.C., the High court exercises similar power to prescribe the form or to issue any Rule on the administrative side. It is in exercise of the power conferred under these two provisions, the Criminal Rules of Practice and Circular orders have been issued by the High Court. If at all, any such Form is to be prescribed and Rule should be made, to the effect that a petition seeking anticipatory bail or bail or suspension of sentence, is to be supported by an affidavit of the party concerned, the High Court would have made such rule and prescribed the Form for the same in the Rules of Practice. The very fact that the High Court has not done so, would go to show that it is not necessary that the party seeking anticipatory bail or bail or suspension of sentence needs to file any affidavit in support of the petition nor to file the petition in a particular Form.
Madras Hon’ble court overruled the direction issued by the learned single judge and held that the petition for suspension of sentence without an affidavit is maintainable
29. On the judicial side, in our considered view, with great respect, we wish to state that such Rule or Prescription of a Form cannot be made. In such view of the matter, we are constrained to overrule the direction issued by the learned Single Judge in paragraph No.8 in Contempt Petition No.1368 of 2016 dated 26.10.2016.
30. In the instant case, in view of the overruling of paragraph No.8 of the said order, in our considered view, the petition filed by the appellant for suspension of sentence without an affidavit is maintainable. However, since the appeal itself is disposed of, we close the Criminal Miscellaneous Petition as no further orders are required in the same.
Conclusion: Conviction set aside
31. In the result, the Criminal Appeal is allowed and the conviction and sentence imposed on the appellant/accused by the learned Principal Sessions Judge, Namakkal, in S.C.No.120 of 2017 by judgment dated 04.03.2017 are hereby set aside. The appellant/accused is acquitted from the lone charge levelled against him and he is directed to be set at liberty, forthwith, unless his presence is required in connection with any other case. Fine amount, if any, paid by the appellant/accused, shall be refunded to him. Bail bond, if any, shall stand discharged.
Party
Sasikumar … Appellant/Accused vs State by the Inspector of Police, Namakkal Police Station, Namakkal District, Cr.No.698/2015 … Respondent/Complainant – Criminal Appeal No.198 of 2017 – 12.04.2017 – THE HONOURABLE MR.JUSTICE S.NAGAMUTHU AND THE HONOURABLE DR.JUSTICE ANITA SUMANTH.
