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2012 DIGILAW 2225 (RAJ)

Mohar Singh v. State of Rajasthan

2012-11-23

PRASHANT KUMAR AGARWAL

body2012
JUDGMENT 1. - Heard learned counsel for the parties. 2. The accused-petitioners have preferred this criminal miscellaneous petition under Section 482 Criminal Procedure Code against that part of order dated 06.11.2012 passed by the Additional Sessions Judge No. 2, Kishangarh Bas, (District Alwar) passed in Criminal Appeal No. 26/2012 whereby the learned Appellate Court while suspending the sentence awarded by the trial Court further imposed a condition that the petitioners shall deposit the entire amount of fine awarded by the trial Court. 3. Brief relevant facts for the disposal of this petition are that the accused-petitioners were convicted by the trial Court i.e. Judicial Magistrate, Mundawar, (District Alwar) in Regular Criminal Case No. 23/07.09.2003 vide judgment and order dated 25.10.2012 for the offences under Sections 148, 447, 341 or 341 read with Section 149, 323 or 323 read with Section 149, 325 or 325 read with Section 149 and for offence under Section 326 or 326/149 Indian Penal Code and sentenced for imprisonment of various periods and also for various amounts of fine. 4. Feeling aggrieved, the petitioners filed the aforesaid appeal under Section 374 Criminal Procedure Code and the same was admitted by the Appellate Court. Along with.the appeal, application under Section 389 Criminal Procedure Code for suspension of sentence was also filed by the petitioners and the same was allowed by the Appellate Court with the condition that each and every petitioner shall submit surety bond of Rs. 10,000/- and personal bond of the like amount to the satisfaction of the trial Court. At the same time a further condition was also imposed that each and every petitioner shall deposit entire amount of fine imposed by the trial Court. Feeling aggrieved with the condition of deposit of amount of fine, the petitioners are before this Court by way of this criminal miscellaneous petition. 5. At the same time a further condition was also imposed that each and every petitioner shall deposit entire amount of fine imposed by the trial Court. Feeling aggrieved with the condition of deposit of amount of fine, the petitioners are before this Court by way of this criminal miscellaneous petition. 5. Assailing the imposition of aforesaid condition, learned counsel for the petitioners submits that every accused has statutory and fundamental right to file appeal against a judgment of conviction and order of sentence passed by the trial Court and to seek, suspension of sentence awarded by the trial Court and the Appellate Court has no jurisdiction to impose any condition including the condition of deposit of amount of fine or a part thereof white suspending the sentence, but in the present case learned Appellate Court without considering the well settled legal position has illegally imposed the aforesaid condition which, in fact tantamounts to refusal of suspension of the sentence. It was further submitted that the financial condition of the petitioners is not.such that they can fulfil the condition imposed by the trial Court and the same, will deprive the petitioners to be released on bail during pendency of the appeal despite, the fact that the Appellate Court after, finding substance in the appeal, has admitted the same. It was prayed that the condition imposed by the Appellate Court may be set aside wholly or atleast in part. 6. In support of his submissions learned counsel for the petitioners relied upon the case of Mool Chand & Ors. v. State of Rajasthan reported in 1992 RCC 289 and Budha Ram v. The State of Rajasthan reported in 1980 RCC 13. 7. I have considered the submissions made on behalf of the petitioners and the material made available for my perusal as well as the relevant legal provisions and the case law. 8. On consideration of prevalent legal position in this regard this submission of learned counsel for the petitioners is of no merit that while suspending sentence awarded by the trial Court, the Appellate Court has no jurisdiction to impose any condition including deposit of whole or part of fine amount awarded by the trial Court. 8. On consideration of prevalent legal position in this regard this submission of learned counsel for the petitioners is of no merit that while suspending sentence awarded by the trial Court, the Appellate Court has no jurisdiction to impose any condition including deposit of whole or part of fine amount awarded by the trial Court. This Court & recently in the case of Suresh Chand Sharma v. State of Rajasthan & Anr., (S.B. Criminal Miscellaneous Petition No. 1137/2012) vide order dated 02.11.2012, after considering various decisions of Hon'ble Supreme Court as well as of this High Court, has held that while suspending sentence under Section 389 Cr.P.C., the Appellate Court Is : entitled to impose condition upon the appellant including condition of deposit of fine/compensation or part thereof but the condition so imposed could not be unreasonable and onerous virtually amounting to refusal of suspension of sentence. 9. In view of the above, this contention of learned counsel for the petitioners is not legally tenable that no such condition can be imposed by the Appellate Court while suspending the sentence awarded by the trial Court. 10. Now, in the facts and circumstances of the present case, it is to be considered whether the condition of deposit of entire amount of fine imposed by the Appellate Court can be said to be unreasonable and onerous. 11. In the facts and circumstances of the case and more particularly looking to the fact that the petitioners have rural background, the condition imposed by the Appellate Court to the extent of deposit of entire amount appears to be unreasonable and onerous and it is required to be modified suitably. Therefore, in the facts and circumstances of the case, the condition imposed by the Appellate Court is modified in the manner that instead of entire amount of fine each and every accused-petitioner shall deposit only 50% amount thereof in the trial Court. 12. Consequently, this criminal miscellaneous petition is partly allowed with the aforesaid modification. 13. In view of the aforesaid order, the stay application does not survive and the same is also stands disposed of. *******