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2003 DIGILAW 1690 (PNJ)

Sabita Behl v. State of Haryana

2003-12-18

NIRMAL SINGH

body2003
JUDGMENT Nirmal Singh, J. - This is a petition under Section 389(2) read with Section 482 of the Code of Criminal Procedure (for short, Criminal Procedure Code) for suspension of sentence during the pendency of the appeal bearing No. 23 dated 4.12.2001 pending in the Court of Additional Sessions Judge, Faridabad and against judgment and order dated 2.11.2001 and 10.11.2001 passed by the Additional Chief Judicial Magistrate, Faridabad, whereby the petitioner has been convicted and sentenced in a case bearing FIR No. 3B2 dated 22.5.1999 under Sections 420, 467, 468, 471 and 120-B Indian Penal Code registered with Police Station Central, Faridabad. 2. The petitioner earlier had filed a petition bearing Criminal Miscellaneous No. 20327-M of 2002 for suspension of sentence, which came up for hearing on 28.10.2002 before Honble R.C. Kathuria, J. (as he then was), the sentence was not suspended, however, the Additional Sessions Judge was directed to dispose of the appeal within two months from the date of receipt of copy of the order. But, the appeal has not been disposed of by the learned Additional Sessions Judge, Faridabad as co-accused Sunil Behl has filed an application for additional evidence before the learned Additional Sessions Judge. The application for additional evidence was declined and the co-accused Sunil Behl filed a petition bearing Criminal Revision No. 520 of 2003 which is pending for hearing. In the meanwhile, as per the counsel for the petitioner, the petitioner has already undergone four years and nine months, whereas the substance sentence awarded to the petitioner is of four years. The petitioner was imposed fine of Rs. 35 lac on four counts and in default of payment of fine to further undergo rigorous imprisonment for six month on each count. The petitioner was sentenced as under :- "1) Rigorous imprisonment for a period of three years and fine of Rs. 5 lacs under Section 420 read with Section 120-B Indian Penal Code. In default of payment of fine to undergo further rigorous imprisonment for a period of six months. 2) Rigorous imprisonment for a period of four years and a fine of Rs. 10 lacs under Section 467 rear with Section 120-B Indian Penal Code. In default of payment of fine to undergo further rigorous imprisonment for a period of six months. 3) Rigorous imprisonment for a period of four years and a fine of Rs. 2) Rigorous imprisonment for a period of four years and a fine of Rs. 10 lacs under Section 467 rear with Section 120-B Indian Penal Code. In default of payment of fine to undergo further rigorous imprisonment for a period of six months. 3) Rigorous imprisonment for a period of four years and a fine of Rs. 10 lacs under Section 468 read with Section 120-B Indian Penal Code. In default of payment of fine to undergo further rigorous imprisonment for a period of six months. 4) Rigorous imprisonment for a period of four years and a fine of Rs. 10 lacs under Section 471 read with Section 120-B Indian Penal Code. In default of payment of fine to undergo further rigorous imprisonment for a period of six months." 3. The ponly point which is to be considered is whether on account of non- payment of fine, the petitioner can be kept in custody. Sub-section (2) of Section 357 Criminal Procedure Code reads as under :- "357. Order to pay compensation. - (1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied - (a) in defraying the expenses properly incurred in the prosecution; (b) in the payment to any person compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court; (c) when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855), entitled to recover the damages from the person sentenced for the loss resulting to them from such death; (d) when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, in compensating any bonafide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto. (2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal. (3) When the Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order of the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced. (4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Sessions when exercising its powers of revision. (5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account of any sum paid or recovered as compensation under this action." 4. A perusal of the Section shows that when a fine is imposed, in any case that matter is subject to appeal, the fine cannot be recovered till the presenting of the appeal or if the appeal is presented and is entertained the fine cannot be recovered before the adjudication of the appeal. 5. This proposition was also considered by the Apex Court in Criminal Appeal No. 1243 of 2003 titled Sabita Behl v. State of Haryana, decided on 26.9.2003. So, taking into consideration the facts and circumstances of the case, sentence awarded to the petitioner is suspended during the pendency of the appeal before the Additional Sessions Judge, Faridabad but this subject to furnishing of bond of Rs. 10 lac with two sureties of the like amount each. Bail to the satisfaction of Chief Judicial Magistrate, Faridabad. Petition allowed.