CENTRAL BUREAU OF INVESTIGATION Vs. ASHOK SIRPAL

JUDGEMENT

(1.) FACTUAL ASPECT : The factual controversy which arises in this appeal is very limited. The respondent - accused no.2, by judgment and order dtd. 27/1/2016 passed by the Special Judge, CBI (PC Act), Karkardooma Courts, East District, Delhi, was convicted for the offences punishable under Sec. 120B read with Ss. 420/419 of the Indian Penal Code (for short, 'the IPC') and Ss. 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (for short, 'the PC Act'). He was sentenced to undergo rigorous imprisonment for seven years for each offence. He was sentenced to pay a fine of Rs.95,00,000.00. In default of the payment of the fine, he was ordered to undergo simple imprisonment for a period of 21 months. The substantive sentences were ordered to run concurrently. The respondent preferred an appeal against conviction before the Delhi High Court. The appeal was admitted. By the impugned order dtd. 29/9/2016, the sentence was suspended by the learned Single Judge of Delhi High Court on the respondent furnishing personal bond in the sum of Rs.50,000.00 with one surety of the like amount subject to the satisfaction of the learned Trial Judge. A further condition was imposed on the respondent of not leaving the country without prior permission of the Trial Court.

(2.) On 19/3/2018, while issuing notice, this Court passed the following order:

(3.) Shri K. M. Nataraj, learned Additional Solicitor General of India, pointed out that the finding against the respondent and co-accused by the Special Court is that there was an embezzlement of approximately a sum of Rs.46,00,000.00. He pointed out that what is suspended under the impugned order is the substantive sentence of 7 years. As the respondent has paid only a sum of Rs.15,00,000.00 out of the total fine amount of Rs.95,00,000.00 and as the direction to pay a fine has not been suspended under the impugned order, the respondent will have to be taken into custody for undergoing sentence imposed in default of payment of a fine. Learned ASG relied upon the decision of this Court in the case of Satyendra Kumar Mehra v. State of Jharkhand, (2018) 15 SCC 139. He pointed out the interpretation put by this Court to Sec. 357 of the Code of Criminal Procedure, 1973 (for short, 'the CrPC'). He relied upon what is held in paragraph 36 of the said decision. He urged that there is a power to suspend the fine conferred by Sec. 389 of the CrPC with or without condition. He submitted that the impugned order does not record that the order of fine has been suspended. He, therefore, submitted that the impugned order would not help the respondent to avoid enforcement of the sentence in default of payment of the fine. He submitted that, in any case, the High Court could not have granted an unconditional stay of the order directing payment of a fine of Rs.95,00,000.00. He submitted that until the impugned order was passed, the respondent had only been incarcerated for about 8 months.