BRAJESH KUMAR SHARMA Vs. RAMPRAKASH KULSHRESTHA

JUDGEMENT

(1.) THE instant petition has been filed by the petitioner impugning the order dated 4.12.2006 passed by Session Judge, Morena in Criminal Appeal No. 183/06. Vide impugned order the learned Judge, while considering an application under section 389 of CrPC filed on behalf of the petitioner for suspension of the sentence awarded by the Court below, has observed that only sentence of imprisonment can be suspended by him and not the fine imposed by the Court below and directed that amount of fine Rs. 1,35,000/- is to be deposited by the petitioner. It is further directed by him that the the sentence of imprisonment imposed on the petitioner shall remain suspended on his furnishing his personal bond of Rs. 5,000/- alongwith surety for the condition that he will remain present in the appellate Court during the hearing of the appeal. Imposing the condition of depositing the amount has been assailed by this petition on behalf of the petitioner.

(2.) IT is submitted by Shri Jain, the learned counsel appearing on behalf of the petitioner, that the petitioner is in jail since 28.11.2006 only because, that he could not deposit the aforementioned amount. In support he has drawn the attention of the Court on a judgment of the apex Court in the case of Pankajbhai Nagjibhai Patel v. State of Gujarat and another [AIR 2001 SC 567], and has submitted that the learned Magistrate was not empowered to impose fine amount more than Rs. 10,000/- as provided by section 29(2) of CrPC. Imposing a fine of Rs.1,35,000/- by the learned Magistrate vide the impugned judgment dated 28.11.2006, is thus beyond jurisdiction and is illegal. Considering the period of custody of the petitioner the aforementioned condition of depositing the amount, ought to be set aside.

(3.) COMING to the present case, on perusal of the impugned order, it appears that the learned Judge having appellate jurisdiction, while disposing of an application under section 389 of CrPC has observed in para 5, that under the provision the sentence of fine cannot be suspended by him i.e. by the appellate Court. This observation in the order is not correct. To understand it in a better way, perusal of the provision will be beneficial, which is quoted herein below :