CENTRAL BUREAU OF INVESTIGATION versus ASHOK SIRPAL
[2024] 10 S.C.R. 930, Supreme Court of India, 2024
Outcome: Disposed off
Segment: Issues
[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:
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“ 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.
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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
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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