CENTRAL BUREAU OF INVESTIGATIONversusASHOK SIRPAL

                 [2024] 10 S.C.R. 930 : 2024 INSC 819

                    Central Bureau of Investigation
                                  v.
                             Ashok Sirpal
                     (Criminal Appeal No. 4277 of 2024)
                               24 October 2024
           [Abhay S. Oka* and Augustine George Masih, JJ.]

                            Issue for Consideration
       Matter pertains to the challenge to the order passed by the High
       Court suspending the sentence of imprisonment and the fine
       imposed on the accused who was convicted for embezzlement
       of Rs. 46 lakhs.

                                  Headnotes†
       Code of Criminal Procedure, 1973 – s.389 – Bharatiya Nagarik
       Suraksha Sanhita, 2023 – ss.430 – Penal Code, 1860 – s.64 –
       Bharatiya Nyaya Sanhita, 2023 – ss.4 and 8(2) – Suspension
       of sentence pending appeal; release of appellant on bail –
       Respondent-accused convicted for the offences punishable
       under the Penal Code and Prevention of Corruption Act, 1988
       for embezzlement of Rs. 46 lakhs and sentenced to rigorous
       imprisonment for seven years and fine of Rs. 95,00,000/- and
       in default to pay fine, was to undergo simple imprisonment
       for 21 months – However, the High Court suspended the
       sentence, on the respondent furnishing personal bond in the
       sum of Rs. 50,000/- with one surety – Correctness:
       Held: While convicting an accused, if a direction is issued against
       him to pay a fine, such a direction can be suspended in the
       exercise of power under sub-section (1) of s.389 – Whenever a
       prayer is for suspension of the sentence of fine, the Appellate Court
       must consider whether the sentence of fine can be suspended
       unconditionally or subject to conditions – However, the Court has
       to keep in mind that if a condition of the deposit of an amount is
       imposed while suspending the sentence of fine, the same should
       not be such that it is impossible for the appellant to comply with
       it – Such a condition may amount to defeating his right of appeal
       against the order of conviction, which may also violate his rights
       under Art.21 – In the impugned order, it was clearly mentioned

* Author
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             Central Bureau of Investigation v. Ashok Sirpal


     therein that the respondent's sentence stands suspended pending
     the hearing of the appeal subject to compliance of furnishing
     personal bond in the sum of Rs. 50,000/- – High Court was
     conscious of the fact that as the embezzlement alleged against
     the respondent and other accused persons was to the tune of
     Rs. 46 lakhs, the Special Court had sentenced the respondent to pay
     a fine of Rs. 95 lakhs – Sentence imposed on the respondent was
     of both imprisonment and payment of fine – Thus, it cannot be said
     that the sentence of the fine was not suspended – Total sentence,
     including substantive sentence and sentence in default of fine, will
     be imprisonment for eight years and nine months – Considering the
     huge pendency of criminal appeals triable by a Single Judge and
     considering the limited period sentence, not possible to find fault
     with the impugned order – Thus, interference with the impugned
     order not called for, especially when the respondent deposited
     a sum of Rs.15 lakhs in this Court, which is to be treated as a
     condition for suspending the sentence of fine. [Paras 6-10]

                              Case Law Cited
     Satyendra Kumar Mehra v. State of Jharkhand [2018] 4 SCR
     1033 : (2018) 15 SCC 139 – referred to.

                                List of Acts
     Penal Code, 1860; Prevention of Corruption Act, 1988; Code of
     Criminal Procedure, 1973; Bharatiya Nagarik Suraksha Sanhita,
     2023; Bharatiya Nyaya Sanhita, 2023; Negotiable Instrument
     Act, 1881.

                             List of Keywords
     Suspending sentence of imprisonment and fine imposed;
     Embezzlement; Rigorous imprisonment for seven years; Sentenced
     to pay fine of Rs.95,00,000/-; Furnishing personal bond; Suspension
     of sentence; Deposit of amount; Substantive sentence; Fixed
     deposit.

                            Case Arising From
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
     4277 of 2024
     From the Judgment and Order dated 29.09.2016 of the High Court
     of Delhi at New Delhi in CRLMB No. 948 of 2016
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                          Appearances for Parties

       K M Nataraj, A.S.G., Mukesh Kumar Maroria, Sanjay Kumar Tyagi,
       Veer Vikrant Singh, Sharath Nambiar, Nalin Kohli, Anuj Srinivas
       Udupa, Parantap Singh, Advs. for the Appellant.
       Dama Seshadri Naidu, Sr. Adv., Rahul Gupta, Deepak Sharma,
       Ms. Sivani Reddy, Advs. for the Respondent.

                 Judgment / Order of the Supreme Court

                                Judgment
       Abhay S. Oka, J.
       FACTUAL ASPECT
1.     The factual controversy which arises in this appeal is very limited.
       The respondent - accused no.2, by judgment and order dated
       27th January 2016 passed by the Special Judge, CBI (PC Act),
       Karkardooma Courts, East District, Delhi, was convicted for the
       offences punishable under Section 120B read with Sections
       420/419 of the Indian Penal Code (for short, ‘the IPC’) and
       Sections 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/-. 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 dated 29th September 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/-
       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 19th March 2018, while issuing notice, this Court passed the
       following order:
[2024] 10 S.C.R.                                                            933

                Central Bureau of Investigation v. Ashok Sirpal


             “ Delay condoned.
             The learned Additional Solicitor General appearing for
             the petitioner – CBI submits that the respondent has not
             deposited the fine. The submission is recorded.
             Issue notice.”
      On 8th August 2023, the following order was passed:
             “ The learned Senior Counsel appearing for the respondent,
             on instructions, states that the respondent will deposit in
             this Court a sum of Rs.15 lakhs within three months from
             today.
             Only in view of this statement, we adjourn this petition till
             21.11.2023 to be listed on the top of the Board.
             We make it clear that on the failure of the respondent to
             deposit the said amount, the order granting bail to the
             respondent is liable to be set aside.
             As and when the said amount is deposited, the Registry
             will invest it in the interest bearing deposit with auto
             renewal facility.”
      In terms of the said order, the respondent has deposited a sum of
      Rs.15,00,000/-, which has been invested in a fixed deposit under
      the orders of this Court.
      SUBMISSIONS
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/-. 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/- out of the total
      fine amount of Rs.95,00,000/- 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.1 He pointed out the interpretation put by this Court to


1    [2018] 4 SCR 1033 : (2018) 15 SCC 139
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       Section 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 Section 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/-. He
       submitted that until the impugned order was passed, the respondent
       had only been incarcerated for about 8 months.
4.     Shri Naidu, learner senior counsel representing the respondent,
       submitted that the entire sentence, including the sentence of fine,
       has been suspended by the impugned order. He submitted that the
       substantive sentence and the sentence in default of fine are limited
       period sentences. As the appeal against conviction is not likely to
       be heard in the near future, the High Court has rightly suspended
       the sentence.
       CONSIDERATION OF SUBMISSIONS
5.     Section 389 of the CrPC reads thus:
            “389. Suspension of sentence pending the appeal;
            release of appellant on bail.—(1) Pending any appeal by
            a convicted person, the Appellate Court may, for reasons
            to be recorded by it in writing, order that the execution
            of the sentence or order appealed against be suspended
            and, also, if he is in confinement, that he be released on
            bail, or on his own bond:
            Provided that the Appellate Court shall, before releasing on
            bail or on his own bond a convicted person who is convicted
            of an offence punishable with death or imprisonment for
            life or imprisonment for a term of not less than ten years,
            shall give opportunity to the Public Prosecutor for showing
            cause in writing against such release:
            Provided further that in cases where a convicted person is
            released on bail it shall be open to the Public Prosecutor
            to file an application for the cancellation of the bail.
[2024] 10 S.C.R.                                                         935

             Central Bureau of Investigation v. Ashok Sirpal


          (2) The power conferred by this section on an Appellate
          Court may be exercised also by the High Court in the case
          of an appeal by a convicted person to a Court subordinate
          thereto.
          (3) Where the convicted person satisfies the Court by which
          he is convicted that he intends to present an appeal, the
          Court shall, —
          (i) where such person, being on bail, is sentenced to
          imprisonment for a term not exceeding three years, or
          (ii) where the offence of which such person has been
          convicted is a bailable one, and he is on bail,
          order that the convicted person be released on bail, unless
          there are special reasons for refusing bail, for such period
          as will afford sufficient time to present the appeal and
          obtain the orders of the Appellate Court under sub-section
          (1); and the sentence of imprisonment shall, so long as
          he is so released on bail, be deemed to be suspended.
          (4) When the appellant is ultimately sentenced to
          imprisonment for a term or to imprisonment for life, the
          time during which he is so released shall be excluded in
          computing the term for which he is so sentenced.”
     The power of suspension of sentence under Section 389 of the CrPC
     (Corresponding to Section 430 of the Bharatiya Nagarik Suraksha
     Sanhita, 2023) is vested in the Appellate Court dealing with an appeal
     against the order of conviction. On a plain reading of sub-section (1),
     the Appellate Court has the power to suspend the execution of a
     sentence or order appealed against. If the appellant/accused is in
     confinement, there is a power vesting in the Appellate Court to release
     him on bail pending the final disposal of the appeal. In case of offences
     covered by the first proviso to sub-section (1) of Section 389, there
     is a mandate to give an opportunity to the Public Prosecutor to show
     cause in writing against such release before releasing a convicted
     person on bail. As stated earlier, the substantive sentence imposed
     on the respondent is rigorous imprisonment for seven years. In
     addition, there is a direction to pay a fine of Rs.95,00,000/-. There
     are five kinds of punishment provided in Section 53 in Chapter III
     of the IPC, which reads thus:
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            “53. “Punishments”.—The punishments to which offenders
            are liable under the provisions of this Code are—
            First—Death;
            Secondly—Imprisonment for life;
            Thirdly— [* * *];
            Fourthly—Imprisonment, which is of two descriptions,
            namely:—
                       (1) Rigorous, that is, with hard labour;
                       (2) Simple;
            Fifthly—Forfeiture of property;
            Sixthly—Fine.”
       Section 64, which is a part of the same chapter III, reads thus:
            “64. Sentence of imprisonment for non-payment of fine-
            In every case, of an offence punishable with imprisonment
            as well as fine, in which the offender is sentenced to a
            fine, whether with or without imprisonment,
            and in every case of an offence punishable with
            imprisonment or fine, or with fine only, in which the offender
            is sentenced to a fine,
            It shall be competent to the Court which sentences such
            offender to direct by the sentence that, in default of payment
            of the fine, the offender shall suffer imprisonment for a
            certain term, which imprisonment shall be in excess of any
            other imprisonment to which he may have been sentenced
            or to which he may be liable under a commutation of a
            sentence.”
                                                      (emphasis added)
       Sections 4 and 8(2) of the Bharatiya Nyaya Sanhita, 2023, are the
       corresponding Sections. Section 64 of IPC uses the expression
       ‘offender is sentenced to a fine’. Moreover, the fine is one of the
       five punishments provided in Section 53. Thus, it is evident that the
       direction to pay a fine issued against the convicted accused is also a
       sentence. Under Section 64, the Court is empowered to direct that in
[2024] 10 S.C.R.                                                        937

             Central Bureau of Investigation v. Ashok Sirpal


     default of payment of the fine, the offender shall suffer imprisonment
     for a specific term as directed therein. Therefore, there can be a
     sentence of fine and a further sentence in default of compliance
     with the sentence of fine.
6.   In paragraph no.36 of the decision of this Court in the case of
     Satyendra Kumar Mehra,1 this Court held thus:
          “36. We, however, make it clear that the appellate court
          while exercising power under Section 389 CrPC can
          suspend the sentence of imprisonment as well as of fine
          without any condition or with conditions. There are no
          fetters on the power of the appellate court while exercising
          jurisdiction under Section 389 CrPC. The appellate court
          could have suspended the sentence and fine both or could
          have directed for deposit of fine or part of fine.”
     Thus, while convicting an accused, if a direction is issued against
     him to pay a fine, such a direction can be suspended in the exercise
     of power under sub-section (1) of Section 389 of the CrPC.
7.   Coming back to the impugned order, it is clearly mentioned therein
     that the respondent’s sentence stands suspended pending the hearing
     of the appeal subject to compliance of furnishing personal bond in
     the sum of Rs.50,000/-. Perusal of the impugned order shows that
     the High Court was conscious of the fact that as the embezzlement
     alleged against the respondent and other accused persons was to
     the tune of Rs.46,00,000/-, the Special Court had sentenced the
     respondent to pay a fine of Rs.95,00,000/-. The order notes that
     the sentence imposed on the respondent was of both imprisonment
     and payment of fine. Therefore, on a plain reading of the impugned
     order, the argument of learned ASG that the sentence of the fine
     was not suspended cannot be accepted.
8.   While suspending the sentence, especially the sentence of fine,
     the Appellate Court can impose conditions. Whether the order
     of suspension of the sentence of fine should be conditional or
     unconditional depends on the facts of each case and especially the
     nature of the offence. For example, when there is a sentence of fine
     imposed while convicting an accused for the offence punishable under
     Section 138 of the Negotiable Instrument Act, 1881, depending upon
     the facts of the case, the Appellate Court may impose a condition
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       of depositing the fine amount or part thereof while suspending the
       sentence. However, the approach of the Court may be different in
       case of offences punishable under the IPC and cognate legislations.
       Whenever a prayer is for suspension of the sentence of fine, the
       Appellate Court must consider whether the sentence of fine can
       be suspended unconditionally or subject to conditions. However,
       the Court has to keep in mind that if a condition of the deposit of
       an amount is imposed while suspending the sentence of fine, the
       same should not be such that it is impossible for the appellant to
       comply with it. Such a condition may amount to defeating his right
       of appeal against the order of conviction, which may also violate his
       rights under Article 21 of the Constitution.
9.     In the facts of the case, the total sentence, including substantive
       sentence and sentence in default of fine, will be imprisonment for
       eight years and nine months. Considering the huge pendency of
       criminal appeals triable by a Single Judge and considering the limited
       period sentence, it is not possible to find fault with the impugned
       order passed way back on 29th September 2016.
10. Hence, there is no reason to interfere with the impugned order,
    especially when the respondent has deposited a sum of Rs.15,00,000/-
    in this Court. The deposit of Rs.15,00,000/- shall be treated as a
    condition for suspending the sentence of fine. Accordingly, the
    appeal is disposed of with the above modification. The amount of
    Rs.15,00,000/- deposited by the respondent has been invested by
    the Registry in fixed deposit. Immediately after maturity of the existing
    fixed deposit, the Registry shall transfer the amount of Rs.15,00,000/-
    with interest accrued thereon to the Delhi High Court. The High Court
    shall invest the said amount in an appropriate fixed deposit with
    any nationalised bank till the disposal of the criminal appeal. Order
    regarding disbursal/withdrawal of the amount and interest accrued
    thereon shall be passed at the time of final disposal of the appeal.

       Result of the case: Appeal disposed of.



       †
           Headnotes prepared by: Nidhi Jain