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2010 DIGILAW 367 (GUJ)

RANJITSINH HANUBHA JADEJA v. STATE OF GUJARAT

2010-08-13

RAJESH H.SHUKLA

body2010
JUDGMENT The present application has been filed by the applicant original accused for suspension of sentence under sec. 389 of Cr.P.C. and for grant of bail on the grounds set out in the application. 2. The applicant original accused has been convicted in Special Case (GEB) No. 37/2008 by the learned Special Judge (GEB), Bhuj, vide judgment and order dated 19.7.2010 recording conviction of the accused for the offence under sec. 135(1)(A) of the Electricity Act, 2003 imposing sentence of R.I. for 1 year & 6 months and fine of Rs. 1,52,652/-, i/d R.I for 6 months. 3. Learned advocate Mr. Satta referred to the judgment and submitted that as per the findings given, the basic amount is Rs. 50,884.13 which is assessed for the theft of energy and still the fine imposed is three times higher and further it is also recorded that it is the first offence. He therefore submitted that considering the provisions of sec. 389 of Cr.P.C., when he has deposited the basic amount, the present application may be allowed. 4. Learned APP Mr. Poojari resisted the application. 5. In view of rival submissions, it is required to be considered whether the present application can be entertained or not. 6. At the outset, it is required to be mentioned that the theft of energy is considered as Rs. 50,884.13 and though it is also stated to be the first offence, fine is imposed three times the amount which is a matter requiring consideration. The submission made by the learned advocate that he has a good chance of succeeding in the appeal and it cannot be this amount of fine for which he may have to remain in jail requires to be considered. Sec. 135(1) provides as under: “xxx xxx Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use - (i) xxx xxx (ii) exceeds 10 Kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity ......” 8. Therefore, having regard to this provision what has been provided for is the payment of fine. It is true that normally while passing an order of suspension of sentence, the fine is required to be paid. Therefore, having regard to this provision what has been provided for is the payment of fine. It is true that normally while passing an order of suspension of sentence, the fine is required to be paid. However, this is a case where, on the one hand, there is a legislative provision providing for imposition of fine, but, at the same time, it results in deprivation of life and liberty as provided under Art. 21 of the Constitution of India, because a person like the accused may not have the resources to deposit such huge amount of fine. 9. The penology has two-fold object, (1) punishing the criminal for his deterrence, and (2) reformation. This has a reference to the aspect of sentence depending upon the nature of offence. The present offence though is theft of energy is more emphasising on the aspect of economic offence for which the legislature has provided a higher fine, but it will have to be considered in light of the criminal jurisprudence and penology with reference to the basic concept of bail and Art. 21 of the Constitution of India. 10. It is well accepted by catena of judicial pronouncements expressing the underlying principles laying down guidelines for grant of bail and what are the relevant factors which are required to be considered. In the same way, sec. 389 of Cr.P.C. which provides for suspension of sentence and releasing the accused on bail has to be considered in light of the guidelines with regard to the exercise of discretion under sec. 389. 11. It is well accepted that the aspect of sentence and the fine is one thing and the suspension of sentence under sec. 389 of Cr.P.C and releasing the accused on bail are different aspects. The Hon'ble Apex Court in catena of judicial pronouncements has observed that when there is a fixed term sentence, normally, the discretion has to be exercised referring to the scheme of sec. 389. The provisions of sec. 389 and in particular sub-sec. (3), require recording of special reasons for not suspending the sentence. 12. The Hon'ble Apex Court in a judgment in the case of Suresh Kumar & ors. 389. The provisions of sec. 389 and in particular sub-sec. (3), require recording of special reasons for not suspending the sentence. 12. The Hon'ble Apex Court in a judgment in the case of Suresh Kumar & ors. v. State (NCT of Delhi) reported in (2001) 10 SCC 338 has observed and quoted referring to the earlier judgment in (1999) 4 SCC 421 : “When a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances.” 13. Catena of judicial pronouncements have emphasised on this aspect depending upon the nature of offence and the sentence that in case of short sentence or sentence for a lesser period, an application for suspension of sentence should be considered liberally. 14. It is required to be mentioned that the word “sentence” would include the fine imposed inasmuch as the word “sentence” needs to be interpreted broadly to include both the sentence for imprisonment as well as the fine. 15. Therefore, in the facts and circumstances, while maintaining the balance between the right of the accused and the prosecution, the present application deserves to be allowed. 16. Accordingly, the present application stands allowed. The substantive sentence imposed by the learned Special Judge (GEB), Bhuj vide judgment and order dated 19.7.2010 shall remain under suspension till final hearing and disposal of the appeal. 17. The applicant is ordered to be released on bail on his furnishing a bond of Rs. 10,000/- (Rupees Ten thousand only) with one surety of the like amount to the satisfaction of the trial court and subject to the conditions that the applicant shall: (a) not take undue advantage of his liberty or abuse his liberty. (b) not to try to tamper with the evidence or pressurize the prosecution witnesses or complainant in any manner. (c) maintain law and order. (d) surrender his passport, if any, to the lower court, within a week. Rule is made absolute. D.S. permitted.