Appeal against the conviction and suspension of sentence
1. The factual controversy which arises in this appeal is very limited. The respondent accused no.2, by judgment and order dated 27th January 2016 passed by the Special Judge, CBI (PC Act), Karkardooma Courts, East District, Delhi, was convicted for the offences punishable under Section 120B read with Sections 420/419 of the Indian Penal Code (for short, ‘the IPC’) and Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (for short, ‘the PC Act’). He was sentenced to undergo rigorous imprisonment for seven years for each offence. He was sentenced to pay a fine of Rs.95,00,000/. In default of the payment of the fine, he was ordered to undergo simple imprisonment for a period of 21 months. The substantive sentences were ordered to run concurrently. The respondent preferred an appeal against conviction before the Delhi High Court. The appeal was admitted. By the impugned order dated 29th September 2016, the sentence was suspended by the learned Single Judge of Delhi High Court on the respondent furnishing personal bond in the sum of Rs.50,000/with one surety of the like amount subject to the satisfaction of the learned Trial Judge. A further condition was imposed on the respondent of not leaving the country without prior permission of the Trial Court.
On the direction of the Hon’ble High court accused deposited rs. 15 lakh for suspension of sentence
2. On 19th March 2018, while issuing notice, this Court passed the following order:
“Delay condoned.
The learned Additional Solicitor General appearing for the petitioner – CBI submits that the respondent has not deposited the fine. The submission is recorded.
Issue notice.”
On 8th August 2023, the following order was passed:
“The learned Senior Counsel appearing for the respondent, on instructions, states that the respondent will deposit in this Court a sum of Rs.15 lakhs within three months from today.
Only in view of this statement, we adjourn this petition till 21.11.2023 to be listed on the top of the Board.
We make it clear that on the failure of the respondent to deposit the said amount, the order granting bail to the respondent is liable to be set aside.
As and when the said amount is deposited, the Registry will invest it in the interest bearing deposit with auto renewal facility.”
In terms of the said order, the respondent has deposited a sum of Rs.15,00,000/, which has been invested in a fixed deposit under the orders of this Court.
Consideration of submissions
“Section 389 Cr.P.C”
As per section 389(1) Cr.P.C it is mandate to give opportunity to the public prosecutor
The power of suspension of sentence under Section 389 of the CrPC (Corresponding to Section 430 of the Bharatiya Nagarik Suraksha Sanhita, 2023) is vested in the Appellate Court dealing with an appeal against the order of conviction. On a plain reading of subsection (1), the Appellate Court has the power to suspend the execution of a sentence or order appealed against. If the appellant/accused is in confinement, there is a power vesting in the Appellate Court to release him on bail pending the final disposal of the appeal. In case of offences covered by the first proviso to subsection (1) of Section 389, there is a mandate to give an opportunity to the Public Prosecutor to show cause in writing against such release before releasing a convicted person on bail. As stated earlier, the substantive sentence imposed on the respondent is rigorous imprisonment for seven years. In addition, there is a direction to pay a fine of Rs.95,00,000/. There are five kinds of punishmentprovided in Section 53 in Chapter III of the IPC, which reads thus:
“section 53 IPC”
Section 64, which is a part of the same chapter III, reads thus:
“Section 64”
Direction to pay fine issued against the convicted is also a sentence
Sections 4 and 8(2) of the Bharatiya Nyaya Sanhita, 2023, are the corresponding Sections. Section 64 of IPC uses the expression ‘offender is sentenced to a fine’. Moreover, the fine is one of the five punishments provided in Section 53. Thus, it is evident that the direction to pay a fine issued against the convicted accused is also a sentence. Under Section 64, the Court is empowered to direct that in default of payment of the fine, the offender shall suffer imprisonment for a specific term as directed therein. Therefore, there can be a sentence of fine and a further sentence in default of compliance with the sentence of fine.
Appellate court under section 389 Cr.P.C could suspend the sentence and fine both or could direct for deposit of fine or part of fine
6. In paragraph no.36 of the decision of this Court in the case of Satyendra Kumar Mehra ((2018) 15 SCC 139), this Court held thus:
“36. We, however, make it clear that the appellate court while exercising power under Section 389 CrPC can suspend the sentence of imprisonment as well as of fine without any condition or with conditions. There are no fetters on the power of the appellate court while exercising jurisdiction under Section 389 CrPC. The appellate court could have suspended the sentence and fine both or could have directed for deposit of fine or part of fine.”
Satyendra Kumar Mehra ((2018) 15 SCC 139)
Thus, while convicting an accused, if a direction is issued against him to pay a fine, such a direction can be suspended in the exercise of power under subsection (1) of Section 389 of the CrPC.
Appellate court should confirm that the condition does not make it difficult or impossible for the accused to comply
8. While suspending the sentence, especially the sentence of fine, the Appellate Court can impose conditions. Whether the order of suspension of the sentence of fine should be conditional or unconditional depends on the facts of each case and especially the nature of the offence. For example, when there is a sentence of fine imposed while convicting an accused for the offence punishable under Section 138 of the Negotiable Instrument Act, 1881, depending upon the facts of the case, the Appellate Court may impose a condition of depositing the fine amount or part thereof while suspending the sentence. However, the approach of the Court may be different in case of offences punishable under the IPC and cognate legislations. Whenever a prayer is for suspension of the sentence of fine, the Appellate Court must consider whether the sentence of fine can be suspended unconditionally or subject to conditions. However, the Court has to keep in mind that if a condition of the deposit of an amount is imposed while suspending the sentence of fine, the same should not be such that it is impossible for the appellant to comply with it. Such a condition may amount to defeating his right of appeal against the order of conviction, which may also violate his rights under Article 21 of the Constitution.
Amount deposited before the Hon’ble Supreme Court treated as condition for suspending the sentence
10. Hence, there is no reason to interfere with the impugned order, especially when the respondent has deposited a sum of Rs.15,00,000/ in this Court. The deposit of Rs.15,00,000/ shall be treated as a condition for suspending the sentence of fine. Accordingly, the appeal is disposed of with the above modification. The amount of Rs.15,00,000/ deposited by the respondent has been invested by the Registry in fixed deposit. Immediately after maturity of the existing fixed deposit, the Registry shall transfer the amount of Rs.15,00,000/ with interest accrued thereon to the Delhi High Court. The High Court shall invest the said amount in an appropriate fixed deposit with any nationalised bank till the disposal of the criminal appeal. Order regarding disbursal/withdrawal of the amount and interest accrued thereon shall be passed at the time of final disposal of the appeal.
Party
Central Bureau Of Investigation …Appellant Versus Ashok Sirpal …Respondent – Criminal Appeal No. 4277 Of 2024 – 2024 INSC 819 – October 24, 2024
