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CR.MA/9017/2010 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 9017 of 2010
In
CRIMINAL
APPEAL No. 1343 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
RANJITSINH
HANUBHA JADEJA - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================
Appearance
:
MR TEJAS P
SATTA for
Applicant(s) : 1,
MR LR POOJARI, ADDL. PUBLIC PROSECUTOR for
Respondent(s) : 1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 13/08/2010
ORAL
JUDGMENT
The
present application has been filed by the applicant original accused
for suspension of sentence under sec. 389 of Cr.P.C. and for grant of
bail on the grounds set out in the application.
2. The
applicant original accused has been convicted in Special Case (GEB)
No. 37/2008 by the learned Special Judge (GEB), Bhuj, vide judgment
and order dated 19.7.2010 recording conviction of the accused for
the offence under sec. 135(1)(A) of the Electricity Act, 2003
imposing sentence of R.I. for 1 year & 6 months and fine of Rs.
1,52,652/-, i/d R.I for 6 months.
3. Learned
advocate Mr. Satta referred to the judgment and submitted that as per
the findings given, the basic amount is Rs. 50,884.13 which is
assessed for the theft of energy and still the fine imposed is three
times higher and further it is also recorded that it is the first
offence. He therefore submitted that considering the provisions of
sec. 389 of Cr.P.C., when he has deposited the basic amount, the
present application may be allowed.
4. Learned
APP Mr. Poojari resisted the application.
5. In
view of rival submissions, it is required to be considered whether
the present application can be entertained or not.
6. At
the outset, it is required to be mentioned that the theft of energy
is considered as Rs. 50,884.13 and though it is also stated to be the
first offence, fine is imposed three times the amount which is a
matter requiring consideration. The submission made by the learned
advocate that he has a good chance of succeeding in the appeal and it
cannot be this amount of fine for which he may have to remain in jail
requires to be considered.
Sec.
135(1) provides as under:
“xxx xxx xxx
Provided
that in a case where the load abstracted, consumed, or used or
attempted abstraction or attempted consumption or attempted use –
(i) xxx xxx xxx
(ii) exceeds
10 Kilowatt, the fine imposed on first conviction shall not be less
than three times the financial gain on account of such theft of
electricity ……”
8. Therefore,
having regard to this provision what has been provided for is the
payment of fine. It is true that normally while passing an order of
suspension of sentence, the fine is required to be paid. However,
this is a case where, on the one hand, there is a legislative
provision providing for imposition of fine, but, at the same time, it
results in deprivation of life and liberty as provided under Art. 21
of the Constitution of India, because a person like the accused may
not have the resources to deposit such huge amount of fine.
9. The
penology has two-fold object, (1) punishing the criminal for his
deterrence, and (2) reformation. This has a reference to the aspect
of sentence depending upon the nature of offence. The present
offence though is theft of energy is more emphasising on the aspect
of economic offence for which the legislature has provided a higher
fine, but it will have to be considered in light of the criminal
jurisprudence and penology with reference to the basic concept of
bail and Art. 21 of the Constitution of India.
10. It
is well accepted by catena of judicial pronouncements expressing the
underlying principles laying down guidelines for grant of bail and
what are the relevant factors which are required to be considered.
In the same way, sec. 389 of Cr.P.C. which provides for suspension of
sentence and releasing the accused on bail has to be considered in
light of the guidelines with regard to the exercise of discretion
under sec. 389.
11. It
is well accepted that the aspect of sentence and the fine is one
thing and the suspension of sentence under sec. 389 of Cr.P.C and
releasing the accused on bail are different aspects. The Hon’ble
Apex Court in catena of judicial pronouncements has observed that
when there is a fixed term sentence, normally, the discretion has to
be exercised referring to the scheme of sec. 389. The provisions of
sec. 389 and in particular sub-sec. (3), require recording of special
reasons for not suspending the sentence.
12. The
Hon’ble Apex Court in a judgment in the case of Suresh
Kumar & ors. v. State (NCT of Delhi) reported in
(2001) 10 SCC 338 has observed and quoted referring to the earlier
judgment in (1999) 4 SCC 421 :
“When
a convicted person is sentenced to a fixed period of sentence and
when he files an appeal under any statutory right, suspension of
sentence can be considered by the appellate court liberally unless
there are exceptional circumstances.”
13. Catena
of judicial pronouncements have emphasised on this aspect depending
upon the nature of offence and the sentence that in case of short
sentence or sentence for a lesser period, an application for
suspension of sentence should be considered liberally.
14. It
is required to be mentioned that the word “sentence”
would include the fine imposed inasmuch as the word “sentence”
needs to be interpreted broadly to include both the sentence for
imprisonment as well as the fine.
15. Therefore,
in the facts and circumstances, while maintaining the balance between
the right of the accused and the prosecution, the present application
deserves to be allowed.
16. Accordingly,
the present application stands allowed. The substantive sentence
imposed by the learned Special Judge (GEB), Bhuj vide judgment and
order dated 19.7.2010 shall remain under suspension till final
hearing and disposal of the appeal.
17. The
applicant is ordered to be released on bail on his furnishing a bond
of Rs. 10,000/- (Rupees Ten thousand only) with one surety of the
like amount to the satisfaction of the trial court and subject to the
conditions that the applicant shall:
(a) not
take undue advantage of his liberty or abuse his liberty.
(b) not
to try to tamper with the evidence or pressurize the prosecution
witnesses or complainant in any manner.
(c) maintain
law and order.
(d) surrender
his passport, if any, to the lower court, within a week.
Rule
is made absolute. D.S. permitted.
(Rajesh H. Shukla, J.)
(hn)
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