RAJ KUMAR YADAV Vs. SUBHASH UPADYAY

JUDGEMENT

(1.) "This is the first revision petition except this petition no. other petition is pending against the same order."

(2.) While drawing attention at the observation of the Apex Court in the case of Stanny Fellix Pinto v. M / s, Jangid Builders Pvt. Ltd. & Another and of this Court in Ramesh Chand v. State of M.P., Shri Pateria, the learned counsel for the petitioner has submitted that the fine sentence also ought to have been suspended by the Court below or at the most a part of the fine amount could have been suspended. His another contention is that as per the judgment of conviction, four months imprisonment has been imposed in default of nonpayment of fine. When the jail sentence is suspended, the petitioner has already undergone more than four months period in custody.

(3.) Considering the fact that petitioner is in custody for such a long time merely on default of non-payment of fine, despite his appeal is pending, the contention of Shri Pateria deserves to be considered. It will not be out of way to observe that the impugned order is not illegal or erroneous because learned Judge was empowered to pass such order. However, it may be termed as not proper in the aforementioned facts of the case. However, when an appeal against the conviction is pending and the jail sentence has been suspended, if the fine sentence appears onerous, the discretion vested in the Court under Section 389 of Cr. P.C. ought to have been exercised in favour of the petitioner.