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Direction For Payment Of Fine May Be Suspended U/S 389 Of The CrPC

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On 24.10.2024, a Division Bench of the Hon'ble Supreme Court of India in Criminal Appeal No. 4277 of 2024 titled Central Bureau of Investigation Vs. Ashok Sirpal has decided on a substantial question of law relating to the suspension of the sentence of fine, wherein, the Respondent/A2 was convicted for the offences punishable under Section 120B read with Sections 420/419 of the IPC and Sections 13(1)(d) and 13(2) of the PC Act. He was sentenced to undergo RI for 7 years for each offence. He was sentenced to pay a fine of Rs.95,00,000/­. In default of the payment of the fine, he was ordered to undergo SI for a period of 21 months. The substantive sentences were ordered to run concurrently. The Respondent preferred an appeal against conviction before the DHC and the same was admitted by the impugned order, the sentence was suspended by the Single Judge of the DHC.


The CBI approached the SC challenging the validity of the impugned order whereby the execution of sentence imposed on the Respondent/A2 was suspended on the ground that the impugned order does not record that the order of fine has been suspended, and therefore, the impugned order would not help the Respondent/A2 to avoid enforcement of the sentence in default of payment of the fine and further, in any case, the High Court could not have granted an unconditional stay of the order directing payment of a fine of   Rs.95,00,000/­.


Issue

Whether the order directing payment of the fine as punishment may be suspended under Section 389 of the CrPC? 


SC’s Observation

The power of suspension of sentence under Section 389 of the CrPC is vested in the   Appellate Court dealing with an appeal against the order of conviction. On a plain reading of sub­-section (1), the Appellate Court has the power to suspend the execution of a sentence or order appealed against. As stated earlier, the substantive sentence imposed on the Respondent/A2 is rigorous imprisonment for seven years. In addition, there is a direction to pay a fine of Rs.95,00,000/­. 


Section 64 of IPC uses the expression ‘offender is sentenced to a fine’. Moreover, the fine is one of the five punishments provided in Section 53. Thus, it is evident that the direction to pay a fine issued against the convicted accused is also a sentence. Under Section 64, the Court is empowered to direct that in default of payment of the fine, the offender shall suffer imprisonment for a specific term as directed therein. Therefore, there can be a sentence of fine and a further sentence in default of compliance with the sentence of fine.


The SC in the case of Satyendra Kumar Mehra v. State of Jharkhand, reported as,  (2018) 15 SCC 139, has held that: 

“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 of fine without any condition or with conditions. There are no fetters on the power of the appellate court while exercising jurisdiction under Section 389 CrPC. The appellate court could have suspended the sentence and fine both or could have directed for deposit of fine or part of fine.”


Thus, while convicting an accused, if a direction is issued against him to pay a fine, such a direction can be suspended in the exercise of power under sub­section (1) of Section 389 of the CrPC.


The Judgment

The SC observed and held that the impugned order notes that the sentence imposed on the Respondent/A2 was of both imprisonment and payment of the fine. Therefore, on a plain reading of the impugned order, the argument of the CBI that the sentence of fine was not suspended cannot be accepted. The SC further observed and directed that:

“8. While suspending the sentence, especially the sentence of fine, the Appellate Court can impose conditions. Whether the order of suspension of the sentence of fine should be conditional or unconditional depends on the facts of each case and especially the nature of the offence. For example, when there is a sentence of fine imposed while convicting an accused for the offence punishable under Section 138 of the Negotiable Instrument Act,   1881, depending upon the facts of the case, the Appellate Court may impose a condition of depositing the fine amount or part thereof while suspending the sentence. However, the approach of the Court may be different in case of offences punishable under the IPC and cognate legislations. Whenever a prayer is for suspension of the sentence of fine, the Appellate Court must consider whether the sentence of fine can be suspended unconditionally or subject to conditions. However, the Court has to keep in mind that if a condition of the deposit of an amount is imposed while suspending the sentence of fine, the same should not be such that it is impossible for the appellant to comply with it. Such a condition may amount to defeating his right of appeal against the order of conviction, which may also violate his rights under Article 21 of the Constitution.” 

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