Can the appellate court allow the appellant to furnish suitable security in lieu of payment of fine by him during pendency of appeal? This question arises for consideration in this petition.

2. Petitioner filed an appeal against the conviction and sentence passed against him for offence under the Abkari Act. In the said appeal, this court suspended the sentence of imprisonment alone, on an application filed by appellant. The sentence of fine was not suspended but this court granted time for payment of fine. According to petitioner, he is not able to deposit the huge amount of fine of Rs.1 lakh which is imposed on him, being the minimum fine for offence under Section 8(1) and (2) of the Abkari Act.

3. Petitioner is stated to be a coolie, getting a meager income of Rs.1,000 which is not sufficient to meet even his daily needs. Petitioner is not having any landed property, except the house where he is living with his family. He is also a heart patient. He has also taken loans from the bank and could not even repay the same. In such circumstances, in spite of best efforts, he cannot deposit the fine. It is also averred in the affidavit filed by the petitioner that people of the locality are protecting him and his family, but for their support, the entire family would have committed suicide.

4. It is also stated in the petition that certain people of the locality have come forward to help him by offering sufficient security, including landed property, in lieu of payment of fine. He produced documents to prove all these averments. According to petitioner, he has a strong case in appeal. He expects that the appeal be allowed and the conviction and sentence be set aside. In the above circumstances, he requests that he may be allowed to furnish solvent sureties and also landed security in lieu of payment of fine of Rs.1 lakh during pendency of this appeal.

5. Can this prayer be allowed?

6. First of all, there is no specific provision in the Code of Criminal Procedure which permits the court to accept security or surety in lieu of payment of fine, during pendency of appeal. But, in a case where sentence of fine is not suspended and fine cannot be paid by appellant due to financial incapacity, appellant will be forced to undergo imprisonment, which is imposed in default of payment of a fine. He will be compelled to undergo default sentence well in advance and even before correctness of the conviction is examined on a detailed final hearing.

7. It can also so happen that by the time the appellant is found not guilty by appellate court, he would have already suffered a part of the sentence imposed for the offence. An accused thus, undergoes the default sentence, during the pendency of the appeal itself, even before the merit in the appeal is tested by the court. Strictly speaking, such imprisonment cannot be said to be illegal or unauthorized because, it is within powers of appellate court to suspend or not suspend the sentence of fine. However, this renders the right of appeal nugatory because appellant is compelled to undergo a part of the sentence for the offence of which he may be found not guilty, towards end of the proceedings.

8. Experience would show that at least in some of the cases, such imprisonment pending appeal would be undeserving. There may be cases where innocent persons are falsely implicated, witnesses are purchased and tutored to speak against him and such persons are convicted also. But, the merit of the contentions can be appreciated only after a detailed hearing. A wrong conviction may be corrected only towards the end of the proceedings. But that time, appellant would have already Undergone the trauma of the imprisonment. All these happen mainly due to the incapacity of appellant to pay the fine immediately.

9. The other reason is the failure in the Criminal Justice System in this country.

There is no mechanism by which all appeals can ordinarily be disposed of on the same day of filing of the appeal or at least