1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Criminal Misc. Petition No. 572/2010 (Bhagwati Sahay Katriya Versus State of Rajasthan & Another) Date of Order :: 2nd April, 2010 HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Chiranji Lal Saini, counsel for the petitioner. Mr. Amit Punia, PP for the State BY THE COURT: By way of this criminal misc. petition filed under Section 482 of CrPC, the accused petitioner Bhagwati Sahay Katriya has prayed to set-aside the condition of depositing Rs. 55,000/- compensation amount imposed by the learned Additional Sessions Judge (Fast Track) No. 7, Jaipur City, Jaipur while passing the order under section 389 (1) of CrPC with regard to suspension of sentence. Heard the learned counsel for the accused petitioner, learned PP appearing for the State and carefully perused the relevant material including the impugned order. Learned counsel for the accused 2 petitioner canvassed that the impugned order dated 9.2.2010 passed by the appellate court is contrary to the provisions of Section 389 (1) of CrPC. The provisions of Section 389 (1) of CrPC do not envisage any condition to be imposed while passing an order with regard to suspension of sentence. If such a condition, as in the instant case, is imposed while passing an order with regard to suspension of sentence, it is a clear denial to bail. He further canvassed that such a practice of imposing condition at the time of suspension of sentence adopted by the subordinate courts has been severely deprecated by the Hon'ble Apex Court as also this Court from time to time. He has cited one judgment of Amarveer Singh Versus State of Rajasthan passed in S.B. Criminal Misc. Petition No. 1356/2009; decided on 10th September, 2009, by this Court. Learned PP appearing for the State has not opposed the submissions advanced by the learned counsel for the accused petitioner. 3 In the case of Amarveer Singh Versus State of Rajasthan passed in S.B. Criminal Misc. Petition No. 1356/2009, this Court relying upon so many judgments rendered by Hon'ble Apex Court, has observed that the courts below should not impose condition of any nature while suspending the sentence / granting bail to an accused, which amounts to be onerous. Such imposition is virtually denial of bail to the accused even though he is entitled for the same, otherwise. For the sake of convenience, the provisions of sub-section (1) of Section 389 of CrPC, 1973 are reproduced which are as under: “389. Suspension of sentence pending the appeal; release of appellant on bail. - (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 4 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.]” A bare perusal of sub-section (1) of Section 389 of CrPC which relates to suspension of sentence pending the appeal does not envisage any condition to be imposed while suspending the execution of the sentence. The appellate court is required to merely see as to whether the execution of the sentence or order appealed against is required to be suspended or not and he shall record reasons therefor. If the learned appellate court for reasons to be recorded in writing deems to suspend the execution of sentence, he shall pass an order with regard to his release on bail or on his own bond. Nowhere it has been contemplated by law that the appellate court shall impose unwarranted and uncalled for condition while passing an order with regard to suspension of the execution of 5 sentence. Such an uncalled for condition imposed by the learned appellate court undeniably and undisputably amounts to denial of bail. In the instant case, the appellate court – Additional Sessions Judge (Fast Track) No. 7, Jaipur City, Jaipur, albeit suspended the execution of sentence on furnishing a personal bond in the sum of Rs. 25,000/- together with a surety of like amount for his appearance in the Court during the pendency of the appeal within a period of 30 days to the satisfaction of the learned trial court, but with the stipulation that he shall deposit an amount of compensation of Rs. 55,000/- with the trial court in this period. The imposition of this condition of depositing Rs. 55,000/- compensation amount is totally unwarranted, uncalled for and contrary to the provisions of law, which deserves to be set-aside. In view of above, the criminal misc. petition filed under Section 482 of CrPC is allowed and the condition of depositing Rs. 55,000/- compensation amount is ordered to be deleted. The impugned 6 order dated 9.2.2010 stands modified accordingly. (MAHESH BHAGWATI),J. DK/-