MONIKA ACHARYA Vs. STATE OF ORISSA

JUDGEMENT

(1.) - Heard Mr. B.P. Ray, the learned counsel for the petitioner and Mr. S.K. Nayak, the learned AddI. Standing Counsel for the State.

(2.) This is a petition under Section 389(2), Cr. P.C. med by the petitioner, being aggrieved by the order passed by the learned Sessions Judge, Sundargarh, refusing to stay realisation of fine in Criminal Appeal No. 56 of 1999 preferred against the judgment dated 23-7-1999 passed by the learned JMFC, Rajgangapur in 2(c), C. C. Case No. 27 of 1997 (Trial No. 888 of 1997), convicting and sentencing the petitioner under Section 16(1)(a)(i)(ii) of the Prevention of Food Adulteration Act, 1954 to pay a fine of Rs. 5,000/- and in default to undergo S.I. for one year. The petitioner preferring the aforesaid appeal moved the learned Sessions Judge for stay of realisation of fine amount. But the learned Sessions Judge refused to grant stay on the ground that Section 424, Cr. P.C. is applicable to the case and as such no stay of realisation of fine can be granted. According to the learned Sessions Judge, the word sentenceT used in sub-section (1) of Section 389, Cr. P.C. refers to a sentence of imprisonment and therefore, in cases of fine only the provision contemplated under Section 424, Cr. P.C. would come to play and Section 381, Cr. P.C. has no application. The learned Sessions Judge has also observed that the Appellate Court in exercise of its power under Section 389, Cr. P.C. cannot pass any order to stay realisation of fine amount, pending disposal of the appeal, the accused having not been released on bail by the lower Court for preferring such appeal. According to him, the appellant is bound to pay the fine amount within the prescribed time limit as contemplated under Section 424, Cr. P.C. irrespective of the fact that whether he has preferred an appeal against the said order or not. With the above observation, the learned Judge has not only refused to grant stay of realisation of fine but has refused to admit the appeal until the said fine is paid.

(3.) The learned Counsel for the petitioner submits that Section 424, Cr. P.C. is applicable where the order of conviction and sentence is not appealable. According to the learned Counsel, the View taken by the learned Sessions Judge is contrary to the provisions of Section 389, Cr. P.C. and has a tendency to negative the right of appeal. On perusal of the aforesaid provision of law, it appears that the learned Sessions Judge, without applying his judicial mind to the aforesaid provisions, has erroneously refused to stay realisation of fine. His observation that the word sentence appearing in sub-section (1) of Section 389, Cr. P.C. refers to a substantive sentence only is also not acceptable, as imposition of fine following an order of conviction is also a sentence. The expression sentence means not only substantive sentence of imprisonment but also includes sentence of fine. Admittedly, for his conviction, the appellant-petitioner has been sentenced to pay a fine of Rs. 5,000/-. Under such circumstances, the appellant-petitioner has prayed for stay of realisation of fine amount from her till the disposal of the appeal. Under Section 389(1), Cr. P.C. the Appellate Court undoubtedly has jurisdiction to order suspension of the proceeding for the recovery of the fine amount during the pendency of the appeal. This is clear from the plain language of Section 389, Cr. P.C. which confers discretionary jurisdiction on the Appellate Court to suspend the execution of sentence during the pendency of the appeal. Therefore, it is erroneous to say that the word sentence appearing in sub-section (1) of Section 389, Cr. P.C. means only the substantive sentence of imprisonment and does not include sentence of fine. The View expressed by the learned Sessions Judge that the Appellate Court is not entitled to make any order for stay realisation of fine is also against the clear provisions of Section 389(1), Cr. P.C. Suspension of the sentence of fine can be effected by ordering the Court who has to make recovery to stay its realisation pending appeal. If no such order is made by the appellate Court, the fine can be realised despite an appeal is preferred and if subsequently the order of conviction is set aside and the appellant is found not guilty and the appeal is allowed, by that time the appellant would have suffered ignominy, harassment and inconvenience and the right of appeal would become meaningless. For the above reason also the other observation made by the learned Sessions Judge that only after payment of the fine amount, the admissibility of the appeal can be considered, appears to be improper and also against the law, as, while admitting the appeal, he has to consider whether prima facie the appeal has any merit.