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/-.
3. 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 .
4. 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.
5. Having given my best consideration to the rival contentions advanced before me, it may be stated, that Sub-section (1) of Section 389 empowers the appellate court to order suspension of the execution of sentence and for that the appellate court is required to record reasons in writing. The provision is discretionary and not mandatory. Whenever suspension is ordered, the appellate court is required to assign reasons in writing. The expression 'may' connotes that the appellate court may examine the merits of the case at satisfy itself as to whether the case is fit one for suspension of sentence. The reason for suspension may be that short sentence has been awarded and it is like that the appeal may not be heard early or that the appeal involves disputed question on facts and law and so may be arguable of the appeal may involve the question of quantum of sentence or any other reason or reasons, but in case the appellate court feels that absolutely there is no merit in the appeal and does not find the case to be fit for suspension of sentence, the appellate court may even decline to suspend the sentence.
6. The further question which arises for consideration is that where the sentence of imprisonment and fine, both, are awarded, then can it be said that imposition of punishment of fine is not a sentence? It cannot be doubted that imposition of fine is a sentence, for, fine is also prescribed and punishment under clause Sixthly of Section 53 of the Indian Penal Code and in other penal law. Thus, sentence includes imprisonment as well as fine and both can be ordered to be suspended under Section 389(1), Cr PC But whenever suspension of sentence is ordered, it is not necessary for the appellate court to order suspension of the sentence of imprisonment as well as the sentence of fine. For reasons to be recorded the appellate Court may mipend the sentence of imprisonment & may not suspend the sentence of fine. 1 am unable to agree with the contention of the learned Counsel that sentence has to be suspended either as a whole or not at all. When the provision is discretionary, the Court may suspend the substantive sentence of imprisonment & may not suspend the sentence of fine and for that it may assign reasons.
7. In the present case the learned Sessions Judge ordered suspension of substantive sentence. Regard being had to the facts and circumstances of the case, the sentence was ordered to be suspended on the conditions, as stated above, and he has not specified as to why the substantive sentence alone is suspeqded and why sentence of fine has not been suspended. In case the learned appellate court fet, looking to the facts and circumstances of the case, that the substantive sentence should be suspended, there was not reason as to why the sentence of fine was not suspended In this view of the matter, I am unable to sustain the condition imposed by the learned Sessions Judge for suspension of sentence, regarding depositing of fine Rs. 500/-. Under Section 389(2) this Court is competent to exercise the powers of suspension, conferred on the appellate court subordinate to this court. In view of this specific provision, it is not necessary to invoke Section 482 Cr. P C, for setting aside the said condition imposed by the learned Sessions Judge.
8. Consequently, this application is allowed, & the condition imposed b; the Sessions, Judge, Jodhour, regarding depositing of fine of Rs 500/-for suspension of sentence is set as. He and the sentence of the applicant is suspended subject to the other terms as ordered by the Sessions Judge, Jodhpur.