HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal appeal No. 494/2009 Aopellant Heeralal, S/o Shri Ramhaiya Marar, Aged about 40 years, R/o ViUage- Kikirda, Chowki-Hasoud, P.S. Jaijepur, Distt, Jaajgir-Champa, Chhattisgarh. VERSUS Non-AppeUaat State of Chhattisgarh, Through -Station House OfBcer, P.S. -Jagepur, Distt- Jaajgir-champa, Chhattisgarh. CRIMINAL APPBAL UNDER SBCTION 374 (21 OF CODB OP CRIMINAL PROCEDURB. (SB :Hon'ble Mr.T.P. Sharma J.) Present:-. Shri Pankaj Shrivastava, Advocate for the Appellant. Shri Rajendra Tripathi, P.L. forthe State/Non-appeliaiit. ORAL- ORDER (Passed oa 13/7/2009) Present appellant has been convicted by Additional Sessions Judge, Sakti (Janjgir-Champa) videjudgment of order dated 30/6/2009 in S.T. N0. 65/2009 for the offence punishable under Section 325 of I.P.C and sentenced Rigorous Imprisonment for 3 years and fine of Rs. 5000/-. Application under Section 389 (1) of the Criminal Procedure Code, 1973 (for short Code) for suspension of sentence of imprisonment also fine has been filed on behalf of the appellant which reveals that fine has not paid by the appellant, court below has suspended the sentence awarded to the appellant under Section 389 (3) of the Code till 19/7/09. Leanied counsel for the appellant submits that present appellant is in bail and is not in custody and in the light of decision of Dilip S. Dananukar v. Kotak Mahindara Co. Ltd. And another1 iri which it has been held by the Apex Court that appeal is a fundamental right under Section 374 read with Article 21 of the Constitution of India therefore even if appellant does not surrender to himself then the appeal is competent. ' _(2007) 6 SCC 528 ^ Present appellant has been convicted and sentenced for imprisonment and also for fine by the Additional Sessions Judge as a trial Court in accordance with Section 389(3), of the Code the trial court was competent to suspend the sentence of imprisonment only the provisions reads as follows:. 389. Suspensiem of sentence pending the appeal; relwise af appellant on bail'(l) Pending amf appeal by a convicted person, the Appellate Court may sentence or order appealed against be suspended and, also ifhe is in confinement, that he he released on bail, oronhis own bond: Provided that the appellate Court shall, befor^ releasing on bailoron his own bond a convicted person who is conuicted 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 Prosecutorforshowing causein writing against such release. Provided further that in cases where a wnvicted person is released on baU it shall beopen to the Public Prosecutor tofile an application for the canceUation oftke baU. (2) The power conferred by this section on an Appellate Court may be exerdsed also by the High Court in the case ofan appeal by mnvicted person to a Court subordinate thereto. (3) When the convicted person satisfies the Cburt by whidz he is conuicted that he intends to present an appeal, fheCkmrt shall," (i) where such person, being on bail, is sentenced to imprisonment for a term not exoQeding threeyears, or (ii) where the offence of which such person has been wnvicted is a bailable one, and he is on bail, Order that the conuicted person be released on bail unless there are spedal reasons for rejusing bail, for such period as will afford suffident 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 deemedto be suspended. (4) When the appellant is ultimately sentenced to inyrisonment for a term or to irnprisonment for tife, the time during which he is so released shaU be exduded in oomputing the termforwhich he is so sentenced. ^ c 5, Court below has also imposed the fine of Rs. 5,000/-. In accordance with Section 424 of the Code which reads as follows:- The court who imposed the fine is competent to suspend the execution of the fine when the offender has been sentenced to fine only. 424. Suspension of execuUon of sentence of imprisonfnent.- (1) When an offender has been sentenced to fine only and to imprisonment in default ofpayment ofthejine and thefine is not paid forthwith, the Court may- (a) order that thefine shcdl bepayable either infully orbefore a date not more than thirty daysfrom the date ofthe order, or in two orthree installments, ofwhidz thefirst shall bepayable on or before a date not more than thirty daysfrom the date of the order and the otheror others at an interval or at interuals, asthe case may be, ofnot more than thirty days; (b) suspend the execution of the sentence of imprisonment and release theoffender, on the execuiion by the offenderofa bond, with or appearance before the Court on the date or dates on or before which payment ofthefineor the installment thereof, as the case may be, is to be made; and ifthe amount ofthefine or of any installment, as the case may be, is not realized on or before the latest date on whidz it ispayable underthe order, the Court may direct the sentence ofimprisonmentto be carried in to execution at once. (2)_ The provisions of sub-section (1) shall be applicable cdso inany casem which an orderfor thepayment ofmoney has been made on non-recovery ofwhidz imprisonment may be awarded and the money is not paid forthwith and, if the person against whom the order has been made, on being required to enter into a bond such as is referred to in that sub- section, fails to do so, the Courts may at once pass sentence of imprisonment. If courts only imposes fine then that may be suspended in terms of Section 424 of the Code but in the present case court below has sentenced the imprisonment and also fine and in default further rigorous imprisonment of 6 months which cannot be suspended in accordance with Section 424 oftheCode in this case learned Additional Sessions Judge was not competent to suspend .^sw^, ^.&^';r n ^I both the sentence even under the provisions of Sections 389 (3) and 424 of the Code appellant has preferred this appeal on 8/7/2009 and he has not surrender himself into custody for serving the sentence passed in default of fine. Appellant has not paid the fine or is not m custody.In case of Dilip S. (supra) the Apex Court has held that right of appeal is fundamental right but such right is in accordance with law and procedure prescribed and with subject to other prevalent law time being enforce. Appellant has neither paid the fine nor in custody in such a situation the present appeal is not competent and dismissed as not competent. Leamed Additional Sessions Judge has committed material illegality. Let comment be asked from the Additional Sessions Judge, Sakti District Janjgir-Champa and placed for consideration. Sd/- T.P. Sharma Judge