Maintainability is Not the Same as Desirability: Punjab & Haryana High Court Clarifies That Non-Surrendering Convict Can File Criminal Revision

“The distinction between maintainability and desirability is as stark as chalk and cheese,” remarked Justice Sumeet Goel of the Punjab and Haryana High Court while holding that a criminal revision petition is maintainable even if the convict has not surrendered—in the absence of any explicit High Court Rule mandating otherwise.

High Court delivered a significant ruling affirming that the statutory provisions under Sections 397 and 401 of the CrPC and corresponding Sections 438 and 442 of the BNSS do not require surrender as a precondition to entertain a revision petition. However, the Court issued a nuanced warning: the power to entertain such petitions must not be misused by convicts to evade judicial discipline.

“No Rule Bars Filing of Criminal Revision Without Surrender”: High Court Rebuffs State’s Objection on Maintainability

The petitioner, Harcharan Singh, was convicted under Section 420 IPC by the Judicial Magistrate, Bathinda, in 2019 and sentenced to three years’ rigorous imprisonment. His appeal was dismissed by the Additional Sessions Judge on 27th May 2025, but he did not appear for the pronouncement of the appellate judgment, allegedly due to heart-related ailments.

When the petitioner filed a criminal revision petition with applications for time to surrender and suspension of sentence, the State objected, asserting that the petition was not maintainable since he had not surrendered.

Rejecting this contention, the Court held:

“Neither Section 397 CrPC nor Section 401 CrPC nor the extant rules framed by this High Court contain any provision suggesting non-maintainability of a revision petition in the absence of petitioner-convict having surrendered... Imposing such a fetter would amount to restricting a right conferred by the legislature.”

“Judicial Discretion Must Not Reward Indiscipline”: Court Sets Surrender Deadline While Holding Petition Maintainable

While affirming that no surrender was needed to invoke revisional jurisdiction, Justice Goel underscored that judicial discretion must not be exercised in a manner that condones deliberate evasion of the legal process.

“Where the conduct of the petitioner reflects evasion or contumacious disregard of process of law, the Court must lean against the grant of suspension of sentence,” the Court warned.

Nonetheless, since the petitioner cited medical grounds and was a 62-year-old man, the Court found it appropriate to grant time to surrender. It directed:

“The petitioner is directed to surrender before the learned trial Court on or before 18.08.2025... Failing which, steps shall be taken to arrest him forthwith.”

Supreme Court Judgments Cited: Legislature Silent, But Rules May Impose Surrender Requirement

Justice Goel reviewed extensive jurisprudence, including:

• Bihari Prasad Singh v. State of Bihar, where the SC held surrender not mandatory in the absence of High Court rules.

• Vivek Rai v. High Court of Jharkhand, which validated surrender requirements in Jharkhand Rules but maintained High Court’s discretion.

• Daulat Singh v. State of MP, where the SC held that Rule 48 of MP High Court Rules required surrender for maintainability.

Drawing from these, the Punjab and Haryana High Court concluded that in the absence of any such surrender clause in its own rules, revision petitions by non-surrendering convicts remain maintainable, though not automatically entertainable.

High Court Establishes Balanced Standard – No Bar, But No Blanket Relief

This judgment marks a nuanced evolution in procedural criminal jurisprudence. It preserves the legislative intent of allowing convicts to seek revisional remedy, while cautioning against abuse of process.

By differentiating “maintainability” from “desirability”, the Court sets an important precedent: legal doors remain open, but judicial mercy must not be mistaken for procedural loophole.

Date of Decision: 5th August 2025