Pushpendra Singh Bhati, J. - (1.) The petitioner has filed this Criminal Misc. Petition challenging the impugned order dated. 2.2.2017 passed by District and Session Judge, Jaipur District Jaipur, Jaipur in Criminal Misc. Petition No.6/2017 Jagdish Meena and other v. State of Rajasthan to the extent of imposing condition to deposit the amount of fine imposed by the Learned Trial Court vide order dated 6.01.2017 within a period of one month.
(2.) Learned counsel for the petitioner has pointed out the precedent law in the case of Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. and Anr. Reported in 2007 Volume 1 page 664.
(3.) The Hon'ble Apex Court in this precedent law has held as follows : 6. We have noticed hereinbefore the sentence imposed upon the accused. It was submitted that a conjoint reading of Section 357 read with Sections 421 and 424 of the Code would clearly go to show that it is permissible for a Court to direct recovery of fine forthwith and if it is to be held that recovery of fine is automatically stayed, Section 421 and 424 of the Code would become nugatory. The Act is a special statute. Section 138(1) thereof provides for imposition of sentence upto two years or a fine which may extend to twice the amount of the cheque or with both. Before embarking upon the rival contentions raised by the parties, we may notice the relevant provisions of the Code : "357. Order to pay compensation. (1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment order the whole or any part of the fine recovered to be applied - * * * * (b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court; * * * * (2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or if an appeal be presented, before the decision of the appeal. (3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced. * * * * (5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this section." "421. Warrant for levy of fine. (1) When an offender has been sentenced to pay a fine the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may- (a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender; (b) issue a warrant to the collector of the district, authorizing him to realize the amount as arrears of land revenue from the movable or immovable property, or both of the defaulter: Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under Section 357." "431. Money ordered to be paid recoverable as a fine. Any money (other than a fine) payable by virtue of any order made under this Code, and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine:" "439. Special powers of High Court or Court of Session regarding bail. (1) A High Court or Court of Session may direct- (a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section; (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified: Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice. (2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody." It is, therefore, apparent that if a Court imposes a sentence of fine or a sentence or where it forms a part thereof, the Court is entitled to direct that whole or any part of the fine recovered, to be applied to in respect of the factors enumerated in clauses (a), (b), (c) or (d). Section 421 of the Code deals with the mode and manner in which the fine levied is to be recovered. Section 424deals with the steps required to be taken by the Court where the amount of fine has not been paid forthwith. Section 357 deals with two types of cases, namely, (i) where only a sentence has been imposed; and (ii) where fine also forms part of the sentence. When a fine is imposed simpliciter Section 421 read with Section 424 would be applicable but where fine forms part of the sentence, it would not have any application. Counsel for the petitioner has also referred judgment of this Court passed in Jagdish @ Jagia v. The State of Rajasthan in S.B. Crl. Misc. Bail Appli. No.6877 of 2011; decided on 21.09.2011 reported in 2012 Volume 2 CJ (Cri) (Raj.) page-1000 whereby the relevant portion is as follows: 5. In the opinion of the Court, appeal against the conviction is a right to any accused provided under the law and if for the purpose of filing of such appeal and contest there on, the accused is required to deposit the amount of fine, then, it would amount to deprivation of the right to appeal. 6. The Hon'ble Apex Court in the case of Dilip S. Dhaukar v. Kotak Mahindra Co. reported in 2007 (1) NIJ (SC) 413 has held that while suspending the sentence in an appeal the accused cannot be directed to deposit the amount of fine.;