Whether session court can insist for presence of complainant for hearing of stay application after admitting appeal against conviction in cheque dishonour case?
Be that as it may, this is a case where the learned Sessions Judge on July 28, 2014
passed an order in connection with Criminal Appeal No. 29/2014 and on that date, the
appeal has been admitted. However, he did not pass any order staying the operation of the
order of sentence and compensation. In all likely, the learned Sessions Judge has
overlooked the provision of sub-Section (2) of Section 357 Cr. P.C. According to the said
provision, if fine is imposed in a case which is subject to an appeal, no such payment shall
be made before the period allowed for presenting the appeal has elapsed, if an appeal be
presented, before the decision of the appeal. Therefore, according to the mandate of law,
since the appeal is admitted, the learned Sessions Judge was bound to stay the realization
of fine. Furthermore, the learned Judge might direct the petitioners to deposit a portion of
the compensation amount in the Trial Court but his approach in non-considering the
question of stay of the order of payment of fine and compensation, unless the complainant
appeared in court, is totally erroneous, improper and not in accordance with law. Judicial
discretion must always be supported by reason and justification and same cannot be
arbitrary and fanciful. When the learned Judge found merits in the appeal and categorically
recorded that there are grounds for admission and admitted the appeal, it is totally unjust
not to consider the question of stay of fine and compensation, more particularly, on the
face of provisions of sub-section 4 of section 357 CrPC. In any event, the learned Judge
should have taken up the matter for consideration of stay of fine and compensation, when
from the postal records, it is found that the complainant was avoiding the court process. 3
Having regard to above, it is directed within a week from the date of communication
of this order the Appeal court shall dispose of the question of stay of fine and
compensation without insisting presence of the complainant.
In the High Court at Calcutta
Criminal Revisional Jurisdiction
Appellate Side
Present
The Hon’ble Justice Ashim Kumar Roy
CRR No. 3685 of 2014
Nand Kishore Bhagat @ N. K. Bhagat & Anr.
Versus
Biswakantha Dey & Anr.
Judgment on : 16-01-2015
Citation;2015(3)crimes 623 cal
passed an order in connection with Criminal Appeal No. 29/2014 and on that date, the
appeal has been admitted. However, he did not pass any order staying the operation of the
order of sentence and compensation. In all likely, the learned Sessions Judge has
overlooked the provision of sub-Section (2) of Section 357 Cr. P.C. According to the said
provision, if fine is imposed in a case which is subject to an appeal, no such payment shall
be made before the period allowed for presenting the appeal has elapsed, if an appeal be
presented, before the decision of the appeal. Therefore, according to the mandate of law,
since the appeal is admitted, the learned Sessions Judge was bound to stay the realization
of fine. Furthermore, the learned Judge might direct the petitioners to deposit a portion of
the compensation amount in the Trial Court but his approach in non-considering the
question of stay of the order of payment of fine and compensation, unless the complainant
appeared in court, is totally erroneous, improper and not in accordance with law. Judicial
discretion must always be supported by reason and justification and same cannot be
arbitrary and fanciful. When the learned Judge found merits in the appeal and categorically
recorded that there are grounds for admission and admitted the appeal, it is totally unjust
not to consider the question of stay of fine and compensation, more particularly, on the
face of provisions of sub-section 4 of section 357 CrPC. In any event, the learned Judge
should have taken up the matter for consideration of stay of fine and compensation, when
from the postal records, it is found that the complainant was avoiding the court process. 3
Having regard to above, it is directed within a week from the date of communication
of this order the Appeal court shall dispose of the question of stay of fine and
compensation without insisting presence of the complainant.
In the High Court at Calcutta
Criminal Revisional Jurisdiction
Appellate Side
Present
The Hon’ble Justice Ashim Kumar Roy
CRR No. 3685 of 2014
Nand Kishore Bhagat @ N. K. Bhagat & Anr.
Versus
Biswakantha Dey & Anr.
Judgment on : 16-01-2015
Citation;2015(3)crimes 623 cal
https://www.lawweb.in/2015/11/whether-session-court-can-insist-for.html
