The Supreme Court today (October 24) held that where a condition to deposit an amount imposed by the appeal court during the suspension of a convict’s sentence is impossible for the appellant to comply with, it may defeat the right to appeal and may violate the appellant’s right under Article 21 of the Constitution.

“Whenever a prayer is for suspension of the penalty of fine, the Court of Appeal has to consider whether the penalty of fine can be suspended unconditionally or with certain conditions. However, the Court must bear in mind that if a condition is imposed on the payment of a sum on the occasion of the suspension of the fine, it should not be such that it is impossible for the appellant to comply with it. Such a condition may amount to defeating his right to appeal against the sentencing order, which may also violate his rights under Article 21 of the Constitution.“, the Court held.

A bank of Justice Abhay S Oka and Justice Augustine George Masih dismissed an appeal by the CBI challenging the Delhi High Court’s suspension of sentence to a man convicted of embezzling Rs. 46 lakhs.

Accused Ashok Sirpal was convicted by Special Judge, CBI on January 27, 2016 under Section 120B read with Sections 420 and 419 of the IPC and Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act. , 1988. He was sentenced to seven years’ rigorous imprisonment and a fine of Rs. 95 lakhs.

Sirpal appealed against his conviction before the Delhi HC. On September 29, 2016, the HC suspended his sentence for furnishing a personal guarantee of Rs. 50,000 with a single guarantee. This order was challenged by the CBI in the present appeal.

On 19 March 2018, the Supreme Court recorded that Sirpal had not deposited the fine amount of Rs. 95,00,000. The court ordered him to deposit Rs. 15 lakhs within three months, failing which his bail could be revoked. Sirpal deposited the said amount.

Additional Solicitor General KM Nataraj for the CBI argued that the HC had only suspended the sentence on the merits for seven years but had not suspended the fine imposed by the trial court. Since Sirpal had deposited only Rs. 15 lakhs from Rs. 95 thousand lei fine, he had to be arrested for not paying the fine. He argued that there was no record that the HC had suspended the fine.

Senior counsel Dama Sheshadri Naidu for Sirpal argued that the HC had stayed both the sentence on merits and the fine. He argued that the suspension is justified as the appeal against the conviction will not be heard soon.

Section 389 of the CrPC (corresponding to Section 430 of the Bharatiya Nagarik Suraksha Sanhita, 2023) empowers the appellate court to stay the sentence pending appeal.

The court stated that a direction to pay a fine issued against the convicted accused is also a punishment. “Section 64 (imprisonment for non-payment of fine) of the IPC uses the expression “offender shall be liable to fine”. Further, fine is one of the five punishments under section 53. Thus, it is clear that the direction to pay a fine issued against the convicted accused is also a punishment.“, the Court observed.

The Court relied on the judgment of Satyendra Kumar Mehra v. State of Jharkhand which held that an appellate court can suspend both a prison sentence and a fine either conditionally or unconditionally.

The Supreme Court noted that the Delhi HC, in its impugned order, had clearly suspended Sirpal’s sentence. The HC was aware that the conviction involved embezzlement of Rs. 46 lakhs and the trial court imposed a fine of Rs. 95 lakhs, the Court noted. Therefore, the Court rejected ASG’s argument that the fine was not suspended.

The Supreme Court said that during the suspension of a sentence, especially a fine, the appellate court can impose conditions depending on the specifics of each case and the nature of the offence. For example, in cases under section 138 of the Negotiable Instruments Act, the court may require the accused to deposit the fine or part thereof. However, for offenses under the IPC or similar laws, the court’s approach may vary.

The Court pointed out that if the conditions imposed are impossible for the appellant to comply with, it may defeat the right to appeal and violate Article 21 of the Constitution.

In that case, the total sentence, including imprisonment and non-payment of the fine, was eight years and nine months. The court considered the significant pendency of criminal appeals and the limited sentence in this case. The court found no reason to interfere with the Delhi HC order suspending the sentence, especially since Sirpal had already deposited Rs. 15 lakhs as directed by the Supreme Court.

The Supreme Court upheld the impugned order with the modification that the deposit of Rs. 15 lakhs by Sirpal to be treated as a condition for suspension of fine. The Court further ordered that the amount be transferred to the Delhi HC after maturity and invested in a fixed deposit with a nationalized bank pending disposal of the criminal appeal. The final order regarding the payment or withdrawal of the amount and accrued interest would be pronounced at the time of the resolution of the appeal, the Court held.

Case no. – Criminal appeal no. 4277 of 2024

Case Title – Central Bureau of Investigation vs. Ashok Sirpal

Reference: 2024 LiveLaw (SC) 840