Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(SC) 974

SUPREME COURT OF INDIA
ABHAY S. OKA, AUGUSTINE GEORGE MASIH, JJ.
Central Bureau of Investigation – Appellant
Versus
Ashok Sirpal – Respondent
Criminal Appeal No. 4277 of 2024
Decided On : 24-10-2024

Advocates Appeared:
For the Appellant(s) : Mr. K M Nataraj, A.S.G. Mr. Mukesh Kumar Maroria, AOR Mr. Sanjay Kumar Tyagi, Adv. Mr. Veer Vikrant Singh, Adv. Mr. Sharath Nambiar, Adv. Mr. Nalin Kohli, Adv. Mr. Anuj Srinivas Udupa, Adv. Mr. Parantap Singh, Adv. Miss Indira Bhakar,Adv. Mr. Vinayak Sharma,Adv. Mr. Vatsal Joshi,Adv. Mr. Anuj Srinivas Udupa,Adv. Mr. Chitransh Sharma,Adv. Miss Satvika Thakur,Adv. Mr. Yogya Rajpurohit,Adv. Mr. Aayush Saklani,Adv. Mr. Tanmay Mehta,Adv. Miss Nikita Capoor,Adv.
For the Respondent(s): Mr. Dama Seshadri Naidu, Sr. Adv. Mr. Deepak Sharma, Adv. Ms. Sivani Reddy, Adv. Mr. Rahul Gupta, AOR

IMPORTANT POINT
Suspension of sentence and release on bail – Direction to pay fine issued against convicted accused is also a sentence – While convicting accused, if a direction is issued against him to pay fine, such a direction can be suspended in exercise of power under sub-section (1) of Section 389 of Cr.P.C. – If a condition of deposit of an amount is imposed while suspending sentence of fine, same should not be such that it is impossible for appellant to comply with it.

Headnote:
Criminal Procedure Code, 1973 – Section 389 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 430 read with Sections 4 and 8(2)] – Suspension of sentence and release on bail – Conviction for offences punishable under Section 120B read with Sections 420/419 of Indian Penal Code and Sections 13(1)(d) and 13(2) of Prevention of Corruption Act, 1988 – Direction to pay fine issued against convicted accused is also a sentence – While convicting accused, if a direction is issued against him to pay fine, such a direction can be suspended in exercise of power under sub-section (1) of Section 389 of Cr.P.C. – While suspending sentence, especially sentence of fine, Appellate Court can impose conditions – Whether order of suspension of sentence of fine should be conditional or unconditional depends on facts of each case and especially nature of offence – Court has to keep in mind that if a condition of deposit of an amount is imposed while suspending sentence of fine, same should not be such that it is impossible for appellant to comply with it – Such a condition may amount to defeating his right of appeal against order of conviction which may also violate his rights under Article 21 of Constitution – In facts of the case, total sentence including substantive sentence and sentence in default of fine, will be imprisonment for eight years and nine months – Considering huge pendency of criminal appeals triable by a Single Judge and considering limited period sentence, impugned order upheld. (Paras 5, 8, 9 and 10)
Facts of the case:
Respondent-accused no.2, by judgment and order dated 27th January 2016 passed by 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 and Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988. 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/-. By impugned order dated 29th September 2016, sentence was suspended by Single Judge of Delhi High Court on respondent furnishing personal bond in sum of Rs.50,000/- with one surety of the like amount subject to satisfaction of Trial Judge. A further condition was imposed on respondent of not leaving country without prior permission of Trial Court.
Findings of Court:
In the facts of the case, total sentence, including substantive sentence and sentence in default of fine, will be imprisonment for eight years and nine months. Considering huge pendency of criminal appeals triable by a Single Judge and considering the limited period sentence, it is not possible to find fault with impugned order passed way back on 29th September 2016.
Result : Appeal disposed of with modification in order.

JUDGMENT :

ABHAY S. OKA, J.

FACTUAL ASPECT

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.

2. On 19th March 2018, while issuing notice, this Court passed the following order:

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.

SUBMISSIONS

3. Shri K.M. Nataraj, learned Additional Solicitor General of India, pointed out that the finding against the respondent and coaccused by the Special Court is that there was an embezzlement of approximately a sum of Rs. 46,00,000/. He pointed out that what is suspended under the impugned order is the substantive sentence of 7 years. As the respondent has paid only a sum of Rs. 15,00,000/ out of the total fine amount of Rs. 95,00,000/ and as the direction to pay a fine has not been suspended under the impugned order, the respondent will have to be taken into custody for undergoing sentence imposed in default of payment of a fine. Learned ASG relied upon the decision of this Court in the case of Satyendra Kumar Mehra v. State of Jharkhand, (2018) 15 SCC 139. He pointed out the interpretation put by this Court to Section 357 of the Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C.’). He relied upon what is held in paragraph 36 of the said decision. He urged that there is a power to suspend the fine conferred by Section 389 of the Cr.P.C. with or without condition. He submitted that the impugned order does not record that the order of fine has been suspended. He, therefore, submitted that the impugned order would not help the respondent to avoid enforcement of the sentence in default of payment of the fine. He submitted that, in any case, the High Court could not have granted an unconditional stay of the order directing payment of a fine of Rs. 95,00,000/. He submitted that until the impugned order was passed, the respondent had only been incarcerated for about 8 months.