H.R.Panwar, J. - (1.) Heard learned counsel for the parties on the application for suspension of sentence. Carefully gone through the judgment and order passed by both the Courts below as also the record of the trial Court.
(2.) Learned counsel for the petitioner submits that in view of the language of Section 397 Cr.P.C. it is not incumbent on the convict to surrender before seeking suspension of sentence. Learned counsel has relied on a decision of Kerala High Court in Ibrahim v. State of Kerala' wherein Kerala High Court held as under: "The revisional Court need not insist upon the confinement of the accused before ordering suspension of sentence or order passed against him. If the accused is in confinement, the revisional Court will have to direct his release on bail, if he is not in confinement, the revisional Court need only suspend the execution of the sentence or order, either on the bond already executed or as directed by the revisional Court. Since the relevant provisions of the Code have clearly delineated the situation where the accused's presence is necessary, and since Section 397 is si-lent about the custody or confinement of the accused, the revisional Court need not insist upon bringing the accused to confinement before exercising the powers under Section 397(1) of the Code."
(3.) Learned Public Prosecutor and learned counsel appearing for the complainant have opposed the application seeking suspension of sentence and submit that sentence is normally suspended when the accused is detained in jail and since the petitioner did not surrender, therefore, the sentence awarded to him may not be suspended.;