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2019 DIGILAW 729 (HP)

Kamal Dev v. State of Himachal Pradesh

2019-06-18

SANDEEP SHARMA

body2019
JUDGMENT : Sandeep Sharma, J. (Oral) Being aggrieved and dissatisfied with the order dated 16.5.2018, passed by learned Sessions Judge, Hamirpur, District Hamirpur, Himachal Pradesh, in Cr.M.A. No.76 of 2018 in Cr. Appeal No.27 of 2018, whereby an application under Section 389(1) Cr.P.C for suspension of sentence imposed by the learned Chief Judicial Magistrate, Hamirpur, H.P., in complaint No.37-I/2015, on 1.5.2018/2.5.2018, came to be allowed subject to the petitioner's (hereinafter referred to as the accused) furnishing personal and surety bonds to the tune of Rs. 10,000/- to the satisfaction of the learned trial Court and also subject to depositing of the cheque amount before the learned trial Court within a period of 30 days with the undertaking to surrender before the learned trial Court to serve out the sentence in the event of failure of his appeal, petitioner has approached this Court in the instant proceedings filed under Section 482 Cr.P.C, praying therein to set-aside the order dated 16.5.2018 vide which the petitioner was called to deposit the entire cheque amount. 2. While issuing notice, this Court called upon the petitioner to deposit 50% of the cheque amount before the learned trial Court. It is not in dispute that pursuant to order, dated 18.7.2018,accused has already deposited 50% of the cheque amount with the learned trial Court. 3. Though, careful perusal of Section 374(3) Cr.P.C, nowhere suggests that at the time of filing appeal, appellant can be asked to deposit amount, if any, awarded by the learned trial Court, but certainly careful perusal of Section 389 Cr.P.C, which empowers the Appellate Court to suspend the sentence awarded by the learned trial Court during the pendency of the appeal, suggest that Court can ask the appellant to furnish bonds, so that his presence is secured during the pendency of the appeal and he makes himself available to serve the sentence awarded by the learned Appellate Court in the event of failure of appeal having been filed by him. 4. Leaving everything aside, right to appeal is a statutory right as it protects the liberty of the convict/ accused. It also provides further forum to agitate the issue of his liberty. The right to appeal is considered as a fundamental right under Article 12 of the Constitution of India. The Hon'ble Apex Court in Dilip S. Dahanukar versus Kotak Mahindra Co. It also provides further forum to agitate the issue of his liberty. The right to appeal is considered as a fundamental right under Article 12 of the Constitution of India. The Hon'ble Apex Court in Dilip S. Dahanukar versus Kotak Mahindra Co. Ltd. & others, (2007) 6 Supreme Court Cases 528, has held as under:- “12. An appeal is indisputably a statutory right and an offender who has been convicted is entitled to avail the right of appeal which is provided for under Section 374 of the Code. Right of Appeal from a judgment of conviction affecting the liberty of a person keeping in view the expansive definition of Article 21 is also a Fundamental Right. Right of Appeal, thus, can neither be interfered with or impaired, nor it can be subjected to any condition. 55.Unfortunately, the Legislature has not made any express provision in this behalf. In absence of any express provision, the question must be considered having regard to the overall object of a statute. We have noticed hereinbefore that Article 21 of the Constitution of India read with Section 374 of Crl.P.C. confers a right of appeal. Such a right is an absolute one. In a case where a judgment of conviction has been awarded, the Court can release a person on bail having regard to the nature of offence but as also the other relevant factors including its effect on society. A person upon arrest may have to remain in jail as an under trial prisoner. So would a person upon conviction. A person may also have to remain in jail, in the event he defaults in payment of fine, if he is so directed. But when a direction is issued for payment of compensation, having regard to Sub-Section (2) of Section 357 of the Code, the application thereof should ordinarily be directed to be stayed. It will, therefore, be for the Court to stay the operation of that part of the judgment whereby and whereunder compensation has been directed to be paid, which would necessarily mean that some conditions therefor may also be imposed. A fortiori a part of the amount of compensation may be directed to be deposited, but the same must be a reasonable amount. 56. An order may not be passed which the appellant cannot comply with resulting him being sent to prison. A fortiori a part of the amount of compensation may be directed to be deposited, but the same must be a reasonable amount. 56. An order may not be passed which the appellant cannot comply with resulting him being sent to prison. Appellate Court, in such cases, must make an endeavour to strike a balance. Section 421 of the Code of the Criminal Procedure may take (sic be taken) recourse to, but therefor he cannot be remanded to custody.” 5. It is quite apparent from the aforesaid exposition of law that right of appeal can neither be interfered with or impaired, nor can it be subjected to any condition. Otherwise, very purpose of making party to deposit amount of compensation awarded by the trial Court is to ensure that in the event of failure of appeal filed by the convict, complainant or party in whose favour judgment of trial Court is passed, is not compelled to run from pillar to post to recover money awarded in his/her favour by the trial Court, but this Court is of the view that aforesaid interest of complainant can be well protected by the Court by putting convict to the stringent condition, especially in those cases where convict/party is not in a position to deposit the amount at once in terms of the judgment sought to be laid challenge by way of appeal in the Appellate Court. 6. Accordingly, in view of the above, the present petition is allowed and the learned Appellate Court below is directed to decide the appeal of the accused without insisting upon him to deposit the remaining 50% of the cheque amount. 7. Learned counsel for the parties undertake to cause presence of their respective clients before the learned Appellate Court below on 15th July, 2019, to enable it to proceed with the matter in terms of instant judgment passed by this Court. 8. Registry is directed to apprise the learned Court below with regard to passing of the instant judgment forthwith, so that needful is done well within the stipulated period. Pending application(s), if any, also stands disposed of.