Rajesh H. Shukla, J.@mdashThe present application has been filed by the applicant-original accused for suspension of sentence u/s 389 of the Criminal Procedure Code, 1973 and for grant of bail on the grounds set out in the application.
2. The applicant-original accused has been convicted in Special (Electricity) Case No. 97 of 2009 by the learned Additional Sessions Judge and Presiding Officer, 3rd Fast Track Court, Palanpur, vide judgment and order dated 16.07.2010 recording conviction of the accused for the offence u/s 135(1)(A) of the Electricity Act, 2003 imposing sentence of rigorous imprisonment for two years and fine of Rs. 1,77,194/- and, in default, rigorous imprisonment for six months.
3. Learned advocate Mr. M.R. Vyas with Mr. R.J. Patel submitted that the date of offence is 14.11.2008 and the complaint has been filed on 17.11.2008 and the statements of the witnesses have been recorded subsequently as well as the panchnama has also been made after about one month, for which there is no explanation. He referred to the judgment and other materials and submitted that as per the provisions of the Electricity Act, the sentence has been imposed without appreciating the evidence. He referred to testimony of PW-1 (Ex.8) and submitted that the amount of theft of energy is Rs. 88,597/-. He also referred to cross-examination of the witness and submitted that no inquiry or investigation has been made with regard to the fact whether the electric motor was working or not. He submitted that there is no verification made with regard to the exact land, on which the alleged irregularity said to have been committed. He emphasised that the witness has denied that seizure panchnama is required to be prepared in presence of independent witness. He also emphasised that the said witness has not made any inquiry with regard to the well. Similarly he referred to testimony of PW-2 (Ex.15) and submitted that the blank sheet was given to the accused. Therefore, considering these evidences, learned advocate submitted that at least, as required under the provisions of Section 389 of the Criminal Procedure Code, 1973, the sentence is required to be suspended. He submitted that amount of fine is much more and that the applicant cannot make the payment of fine and he has to remain in jail without any fault and, therefore, the present application may be entertained.
4. Learned advocate Mr. Sinha has appeared for the newly added respondent No. 2 and has filed the affidavit-in-reply, which has been perused. He has stated, referring to the affidavit about the provisions of Section 135 of the Electricity Act and large-scale theft of energy and submitted that fine has to be paid and the present application may not be entertained unless fine of Rs. 1,77,194/- is paid or deposited. Learned APP has also supported the submissions advanced on behalf of respondent No. 2.
5. In view of the rival submissions, it is required to be considered whether the present application can be entertained or not.
6. At the outset, it is required to be mentioned that the theft of energy is about Rs. 88,597/- and though the fine is imposed three times the amount which is a matter requiring consideration. The submission made by the learned advocate for the applicant that he has a good chance of succeeding in the appeal and merely the amount of fine is much more that he may have to remain in jail requires to be considered.
7. Section 135(1) provides as under:
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Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use-
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(ii) exceeds 10 Kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity....
8. Having regard to the aforesaid provision what has been provided for is the payment of fine. It is true that normally while passing an order of suspension of sentence, the fine is required to be paid. However, in such cases when, on the one hand, there is a legislative provision providing for imposition of fine, but, at the same time, the effect thereof is required to be considered resulting in deprivation of life and liberty as provided under Article 21 of the Constitution of India.
9. The penology has two-fold objects, (1) punishing the criminal for his deterrence, and (2) reformation. This has a reference to the aspect of sentence depending upon the nature of offence. The present offence though is theft of energy is more emphasising on the aspect of economic offence for which the legislature has provided a higher fine, but it will have to be considered in light of the criminal jurisprudence and penology with reference to the basic concept of bail and Article 21 of the Constitution of India and also Section 389 of the Criminal Procedure Code, 1973.
10. It is well accepted by catena of judicial pronouncements expressing the underlying principles laying down guidelines for grant of bail and what are the relevant factors which are required to be considered. Similarly for exercising discretion u/s 389 of the Criminal Procedure Code, 1973 providing for suspension of sentence, the guidelines are required to be considered. In fact provision of Sub-section (3) of Section 389 of the Criminal Procedure Code, 1973 requires recording of special reasons for not suspending the sentence when the sentence awarded is for a fixed term and the offence is not serious or grave.
11. The Hon''ble Apex Court in a judgment in the case of
When a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances.
12. Therefore, considering the aforesaid nature of offence and aforesaid aspects, it is required to be considered whether the present application can be entertained. The words ''suspension of sentence'' should be considered liberally. The word ''sentence'' would include the fine imposed inasmuch as the word ''sentence'' needs to be interpreted broadly to include both the sentence for imprisonment as well as the fine.
13. In the facts and circumstances, while maintaining the balance between the right of the accused and the prosecution, the present application deserves to be allowed.
14. Accordingly, the present application stands allowed. The substantive sentence imposed by the learned Additional Sessions Judge and Presiding Officer, 3rd Fast Track Court, Palanpur, vide judgment and order dated 16.07.2010 in Special (Electricity) Case No. 97 of 2009 shall remain under suspension till final hearing and disposal of the appeal.
15. The applicant is ordered to be released on bail on his furnishing a bond of Rs. 10,000/- (Rupees Ten thousand only) with one surety of the like amount to the satisfaction of the trial court and subject to the conditions that the applicant shall:
not take undue advantage of his liberty or abuse his liberty;
not to try to tamper with the evidence or pressurize the prosecution witnesses or complainant in any manner;
maintain law and order;
surrender his passport, if any, to the lower court, within a week.
16. Rule is made absolute. Direct service permitted.
