M.C.JAIN, J. - (1.) THE application has been filed under Section 482 read with Section 389(2), Cr. PC., against the older dated 13.02.1978, passed by Sessions judge, Jodhpur.
(2.) THE relevant facts are that the applicant preferred an appeal before the Sessions Judge against the judgment of the Munsif and Judicial Magistrate, First Glass, Bilara, whereby he was convicted under Section 4/9 of the Opium Act and was sentenced to undergo one year's rigorous imprisonment and a fine of Rs 500/ -, in default, to undergo our month' further rigorous imprisonment Along with the' appeal the applicant presented an application for suspension of sentence. The learned Sessions Judge suspended' the execution of the sentence provided the applicant furnishes a personal bond for a sum of Rs 3,000/ -'with one surely in the like amount to the satisfaction of the Murisif and Judicial Magistrate, Bilara. 'A condition was further imposed that the sentence shall be suspended on depositing the fine of Rs. 500/. The applicant is aggrieved with this condition of depositing of fine of Rs 500/ -. The learned Counsel for the applicant submitted' that under Section 389, Cr. PC., the appellate Court may, for reason try be recrded in writing, order that the execution of the sentence is suspended According to the learned Counsel, the sentence is to be suspended as a whole and not in part, so, the order of the learned Judge is not in accordance with the provision of Section 389(1). Cr. PC. The learned Counsel urged that no reasons have been assigned by the learned Judge for ordering suspension on the condition of depositing of fine. The learned Counsel further submitted that imposition Of punishment of line is also a sentence so the sentence of imprisonment as well as fine, both, should have been suspended under Section 389. Cr. PC Under Sub -Section (2) of Section 389, Cr. P. C., this Court is also empowered to exercise the powers, of an appellate Court when an appeal has been preferred by a, convict to an appellate Court, subordinate to this Court. The, learned Counsel further urged that the matter was considered fit for hearing and the substantive sentence was ordered to be suspended, so imposition of condition of payment of fine was not justified This, would mean that if a pepsion, who is not in a position to make pay merit of fine his sentence Would not be ended and he would be deprived of heating in appeal and will have to undergo sentence, although ultimately he may be acquitted Poverty of the accused should not come in the way of hearing of the appeal and of suspension of sentence, in case the appeal is found to be worth hearing the learned Counsel referred to the observations mentioned (in para 14) of Kishan Iyer, J. in the decision Moti Ram and Ors. v. State of Madhaya Pradesh : 1978CriLJ1703 .
(3.) THE learned Public Prosecutor, on the other hand, submitted that under Section 389(1), Cr. P.C, it is not necessary that the sentence in its entirety is required to be suspended. It car, even be partially suspended and thus there was no illegality committed by the learned Sessions Judge in the impugned order.;