- Bench - Justice Raghuvendra S. Rathore
- Appellant - Amarveer Singh
- Respondent - State of Rajasthan & Ors.
Issues
• Can an accused be taken into custody during trial in a bailable offense?
• While exercising appellate powers, should a person be made to suffer imprisonment simply because the conditions imposed in suspending the sentence are harsh?
Facts
• A complaint had been filed against the accused under Section 138 of the Negotiable Instruments Act and it was alleged that a cheque amounting to Rs. 12,50,000/- had been issued in the favour of the complainant.
• At his appearance in the trial court, the petitioner -b due to unavoidable circumstances and error on the part of his counsel -b had his bail bonds forfeited on 29/05/2009. When this forfeiture came to light, the petitioner surrendered and he was then sent to judicial custody. A bail application filed by the petitioner has been rejected and he has been behind the bars since.
• The application by the counsel of the petitioner to submit final arguments was rejected by the trial court, twice and the learned trial court proceeded to give out its judgement which pronounced the petitioner guilty and levied upon him a compensation of 15 lacs to pay to the complainant.
• Feeling aggrieved by the verdict, the petitioner decided to file an appeal against the order in the Appellate Court. The petitioner also pleaded for the sentence to be suspended under Section 389 of the CrPc. The sentence imposed could be suspended if the petitioner can deposit 50% of the fine before the trial court within 15 days -b held the Appellate Court.
• The order given by the Appellate Court was perceived as “illegal” and “sheer abuse of the law” by the counsel of the petitioner and the matter was taken up by the Rajasthan High Court (Jaipur).
Appellant's Contentions
• The counsel for the petitioner had pleaded the Appellate Court to reconsider their decision since the petitioner was the only earning member of his family and arranging that sum of money, from behind the bars was impossible for him. However, when the Court rejected this plea, the counsel filed in the high court for the impugned order of depositing 50% of the fee to be set aside and the petitioner be released on the requisite bail bonds.
• The learned counsel for the petitioner has submitted that the impugned order passed by the learned Appellate Court is a sheer abuse of process of the court because he has imposed a condition of depositing 50% of the fine while suspending the sentence during the pendency of the appeal, which is not only onerous but wholly illegal.
• He further contends that imposition of such conditions amounts to deprivation of petitioner to be released on bail during pendency of appeal, because it would be extremely difficult for the petitioner to arrange 7,50,000/- (50% of the amount of the fine) from behind the bars.
Respondent's Contentions
• While supporting the Appellate Court's judgement, the learned public prosecutor contended that it is the discretion of the court to pass an order however it deems fit regarding the bail bonds.
Judgement of the High Court
The court held that the accused booked under Section 138 of Negotiable Instrument Act would ordinarily be granted bail since the offence was a non-bailable one and therefore they are not to be taken in the custody during the trial. Likewise, a person should not be made to suffer imprisonment only because conditions imposed for suspending the sentence are harsh.
Consequently, the petition was allowed and the impugned order, to the extent of depositing 50% of the fine was squashed and set aside.
Relevant Paragraphs
• 7. I am of the opinion that this miscellaneous petition has merits for the reasons more than one. It is to be noted that a bare perusal of the judgment passed by the learned trial court on 15.07.2009 goes to show that it had convicted the petitioner under Section 138 of the Negotiable Instruments Act and sentenced him for two years' S.I. Further, it was ordered that the accused petitioner shall pay to the complainant an amount of Rs. 15 lacs as compensation. The order impugned passed by the learned Appellate Court is a glaring example of non-application of judicious mind and having been passed in haste, so much so that the learned Appellate Court has ordered that the petitioner shall deposit 50% of the amount of fine before the learned trial court
• 9. An important aspect of the present matter and noticed by this Court is that a trend has been developed by the learned courts below where onerous conditions are being imposed while suspending the sentence and releasing the accused on bail during pendency of the appeal. Therefore, it is considered necessary that the issue be taken up in detail by this Court. It would be relevant to refer the provisions of law with regard to release on bail of an accused under Sections 389, 437, and 439 Cr.P.C.,
• 10. The suspension of sentence is to release the accused on bail. In fact, the very heading of Section 389 Cr.P.C., states that “suspension of sentence pending the appeal; release of appellant on bail.” Furthermore, the said provision has empowers the appellate Court to see that the execution of sentence or order appealed against, be suspended and also if he is in confinement that he be released on bail. Similarly, the said provision, in different eventuality, mentions about release of the accused on bail.
• 11. When a matter is considered fit for hearing and the substantive sentence of the petitioner is ordered to be suspended then imposition of condition of payment of amount, out of fine or compensation, is not at all justified. This would mean that if a person who is not in a position to make payment (Downloaded on 16/12/2020 at 02:18:19 PM) 11 of the said amount, his sentence would not be suspended and he would be deprived of hearing of appeal and will have to undergo sentence, although ultimately he may be acquitted. Poverty of the accused should not come in the way of hearing the appeal or suspension of sentence in case the appeal is found to be worth hearing.
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