S.S.Kulshrestha, Vijay Kumar Verma - (1.) -Heard Sri A. B. L. Gaur, learned counsel for the appellant and learned A.G.A., for the State and also perused the material on record.
(2.) THE bail application on behalf of the appellant-accused Vijendra convicted for the offences under Sections 302/34, 307/34 and 323/34, I.P.C. in S.T. No. 43 of 1997, vide judgment dated 14.4.2008, passed by Shri Bharat Bhushan, the then Additional Sessions Judge, Court No. 1, Gautam Budh Nagar, has been pressed on the ground that it is a cross-case and both side sustained injuries. Injuries sustained from the side of the accused-appellant have not been explained by the prosecution. THEre was free fight and both side sustained injuries, but the learned trial court has not properly appreciated the evidence on record. Having regard to all the facts and circumstances, without expressing any opinion on merit of the case, the accused-appellant may be admitted to bail. Let the appellant Vijendra be released on bail for the offences indicated above during the pendency of the appeal on his executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the trial court concerned.
(3.) IT is worthwhile to mention that the learned trial court has not imposed fine, whereas it is mandatory to impose fine in addition to the substantive sentence of imprisonment for the offence punishable under Section 302, I.P.C. as the language used in Section 302, I.P.C. is "and shall also be liable to fine". We have come across some other cases also, in which, fine was not imposed by the trial courts even for those offences where the expression used by the Legislature in the sections for which conviction was recorded was "and shall also be liable to fine". Where such expression is used in any section, the Court is under obligation to impose fine also in addition to the substantive sentence of imprisonment. No discretion is left to the Court to levy or not to levy fine and imposition of both imprisonment and fine is imperative in such case, as held by Hon'ble Apex Court in the case of Zunjarrao Bhikaji Nagarkar v. Union of India and others, AIR 1999 SC 2881, in which reference has been made to the case of Rajasthan Pharmaceuticals Laboratory, Bangalore v. State of Karnataka, (1981) 1 SCC 645. Let a copy of this order be sent by Registrar General within a week to Sri Bharat Bhushan, the then Additional Sessions Judge, Court No. 1, Gautam Budh Nagar for his future guidance.;