The appellate court has the discretionary power under Section 430 of the BNSS (formerly Section 389 CrPC) to suspend a sentence of fine, but such power must be exercised judiciously, balancing the statutory purpose of the fine with the appellant's circumstances.

ORAL ORDER

ORDER IN CRIMINAL APPEAL :

Admit.

Learned APP Ms.C.M.Shah waives service of notice of admission for the respondent no.1 – State.

ORDER IN CRIMINAL MISC. APPLICATION :

1. Rule. Learned APP waives service of notice of rule for the respondent – State.

2. By way of present application under Section 430 of the BNSS, 2023, the applicant - accused is seeking suspension of the order of fine imposed pursuant to the judgment of conviction rendered on 16.04.2026 by the learned Special (Electricity) Judge and 2nd Additional Sessions Judge, Jamnagar (hereinafter referred to as ‘the Trial Court”) in Special Electricity Case No. 82 of 2024 for the offence punishable under Section 135 of the Electricity Act, 2003, whereby, the applicant came to be held guilty but the learned Trial Court extended the benefit of probation and released the applicant on a probation of two years and fine quantified at three times the amount of electricity bill to be paid within thirty days and in default to undergo simple imprisonment of one year.

3. Heard learned advocate Mr. Meet D. Pansuria for the applicant and learned APP Ms.C.M.Shah for the respondent – State and perused the impugned judgment and order passed by the learned Trial Court and the paper book produced by the learned advocate for the applicant.

4. Learned advocate Mr. Meet D. Pansuria for the applicant has submitted that applicant has been convicted under the provision of the Electricity Act; however, the applicant has been granted probation, the imposition of substantial fine operates harshly and immediate recovery would cause undue prejudice. It is further contended that the appeal raises arguable issues and, therefore, the order of execution of sentence of fine deserves to be suspended.

5. Per contra, learned APP Ms.C.M.Shah has opposed the application contending that the fine imposed under the statute is mandatory in nature and forms an integral part of the sentence, and merely because the benefit of probation is granted, the accused cannot claim suspension of fine as a matter of right.

6. Having considered the rival submissions and perused the record, it emerges that the Trial Court, while recording conviction, has already taken a lenient view by extending the benefit of probation, thereby suspending the substantive sentence of imprisonment. The fine imposed is not merely ancillary but is statutorily linked with the offence involving theft or unauthorized use of electricity, intended to ensure deterrence and restitution.

7. The Apex Court in Central Bureau of Investigation Versus Ashok Sirpal in Criminal Appeal No. 4277 of 2024 in Para 5 and 6 has observed as under:

CONSIDERATION OF SUBMISSIONS

5. Section 389 of the CrPC reads thus:

“389. Suspension of sentence pending the appeal; release of appellant on bail.

(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond:

Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release:

Provided further that in cases where a convicted person is released on bail it shall be