Uttarakhand High Court
Abdul Jaheer & Ors. ... vs State Of Uttarakhand on 8 March, 2022
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Bail Application No. 4 of 2022
In
Criminal Appeal No. 57 of 2021
Abdul Jaheer & Ors. .......Appellants
-Versus-
State of Uttarakhand .......Respondent
Present:
Ms. Pushpa Joshi, the learned Senior Advocate assisted by Ms.
Chetna Latwal, the learned counsel for the applicant.
Mr. J.S. Virk, the learned Dy. Advocate General with Mr. Rakesh
Joshi, the learned Brief Holder for the State.
Date of hearing : 08.03.2022
Coram: Sri Sanjaya Kumar Mishra, ACJ.
Sri Alok Kumar Verma, J.
Upon hearing the learned counsel for the parties, the Court made
the following order.
Heard Ms. Pushpa Joshi, the learned Senior Advocate
assisted by Ms. Chetna Latwal, the learned counsel for the
applicant and Mr. J.S. Virk, the learned Dy. Advocate
General with Mr. Rakesh Joshi, the learned Brief Holder
for the State.
The appellant, namely, Abdul Jaheed, has filed this bail
application under Section 389 of Code of Criminal Procedure
(hereinafter referred to as the Code) for suspension of
sentence and grant of bail upon appeal. It is apparent that
he has been convicted along with two others under Section
302 of the Indian Penal Code read with Section 34 IPC, in
Session Trial No. 86 of 2015. The Court has already granted
order of suspension of the sentence and bail upon appeal to
the accused. By virtue of order passed by this Court on
06.07.2021 the convict-appellant Smt. Sanjeeda and by the
order dated 15.02.2022 the convict -appellant Abdul Sayeed
have been granted bail by this Court. So it is not disputed at
this stage by the learned Deputy Advocate General that the
case of the present applicant, as far as ambit of
appreciation of evidence is concerned, stands on the same
footing, as the other two appellant have been granted bail.
Moreover, he is permanent resident of Ward No. 3,
Sitarganj, Thana Udham Singh Nagar, and there is no
reasonable apprehension of his absconding from the process
of justice.
The bail application under Section 389 of the Code is
allowed. The sentence is suspended. The appellant Abdul
Jaheed be released on bail on the suitable terms and
conditions as deemed just and proper by the learned
Additional Sessions Judge, Khatima, District Udham Singh
Nagar.
Sri Sanjaya Kumar Mishra, ACJ.
However, at the time of the disposal of the application
under Section 389 of the Code, it was argued that the
appellate court do not have jurisdiction to grant stay of fine,
when it is not awarded along with compensation.
In course of hearing, we took into consideration the
case of Satyendra Kumar Mehra @ Satendera Kumar Mehra
vs. State of Jharkhand (2018) 15SCC 139, wherein the
Hon'ble Supreme Court has upheld the order of the Hon'ble
High Court of Jharkhand in not staying the imposition of
fine. It is apparent from the judgment that the appellant
has filed the appeal against the order of the High Court of
Jharkhand at Ranchi in Satyendra Kumar Mehra vs. State of
Jharkhand by which the High Court allowed the IA No. 892
of 2018 filed by the appellant, has directed to grant
suspension of sentence of the appellant and directed that
the appellant should deposit the fine amount awarded
before the original court.
It was argued in that case that by virtue of Section
357 of the Code, as an appeal has been filed before the
High Court, the amount of fine imposed by the trial court
gets automatically stayed till the decision of the appeal.
The Hon'ble Apex Court, however, took into
consideration Section 357 of the Code and especially Sub-
section (2) which provides if a fine is imposed in a case
which is subject to appeal, no such payment shall be made
before the period allowed for presenting the appeal has
elapsed, or, if any appeal be presented, before the decision
of the appeal. It is apparent from the judgment that the
Hon'ble Supreme Court came to the conclusion that Section
357(2) of the Code shall not be attracted in a case where
only fine is imposed but when a fine is imposed and
compensation is granted to the victim. However, the Hon'ble
Supreme Court at paragraph 36 of the judgment said that
the power of the Appellate Court under Section 389 of the
Code is not fettered and it can suspend the sentence of
imprisonment and order of fine also. We find it appropriate
to quote the exact words used by the Hon'ble Apex Court:-
"36. We, however, make it clear that the appellate court while
exercising power under Section 389 CrPC can suspend the
sentence of imprisonment as well as fine without any condition
or with conditions. There are no fetters as the power of the
appellate court while exercising jurisdiction under Section 389
CrPC. The appellate court could have suspend the sentence and
fine both or could have directed for deposit of fine or part of fine"
Hence, the suspension of sentence in this case shall be
construed to the suspension of sentence of imprisonment
and fine also.
(Sanjaya Kumar Mishra, ACJ.)
Sri Alok Kumar Verma, J.
With due respect, in Satyendra Kumar Mehra alias
Satendera Kumar Mehra vs. State of Jharkhand, (2018) 15
SCC 139, an appeal was preferred against the order of the
Hon'ble High Court of Jharkhand at Ranchi, whereby, the
Hon'ble High Court had directed to grant suspension of
sentence of the appellant and further directed that the
appellant should deposit the fine amount awarded before
the court below. The Hon'ble Supreme Court held that there
was no infirmity in the order of the High Court, where the
High Court has directed the appellant to deposit the fine
awarded by the trial court.
Therefore, according to me, suspension of sentence
does not automatically include stay of fine. The order to
stay fine may not even be passed.
(Alok Kumar Verma, J.)
Since, there is a difference of opinion qua the
suspension of fine, the Registry is directed to take
appropriate instructions for referring the matter to a Larger
Bench.
The matter is referred to the Full Bench for
determining the following question:-
"Whether the Appellate Court has jurisdiction to
stay imposition of fine by the learned Trial Court
under Section 389 of Code of Criminal Procedure,
even when no compensation is awarded by the
trial court?"
However, the appellant may be released on bail as per
the order.
Bail application stands disposed of.
Urgent certified copy of this order be issued to the
learned counsel for the parties on proper application.
(Alok Kumar Verma,J.) (Sanjaya Kumar Mishra, ACJ.)
PV
