1. The facts giving rise to the present application for revision of an order dated 14.3.52, made by the Additional Sessions Judge, Kutch, briefly stated, are as follows:
2. One Manilal Gokal along with others was convicted in Sessions Case No. 27 of 1949 for offences punishable under Sections 411 and 414, I.P.C., and was sentenced to undergo rigorous imprisonment for 2 years and to pay a fine of Rs. 10,000/- or in default to undergo further rigorous imprisonment for 9 months. Manilal Gokal preferred criminal appeal No. 6 of 1950 against his order of conviction and sentence to this Court and applied for being released on bail. This Court made the following order below Manilal's application for bail:
Release appellant on bail of Rs. 10,000 with two sureties of like amount together. Trial Court shall stay realisation of fine on security to its satisfaction.
It seems that the trial Court directed Manilal to furnish a surety for Rs. 10,000/- for 'stay of realization of fine'. Manilal furnished the present applicant as surety and the latter executed a bond for Rs. 10,000/- binding himself to pay the fine of Rs. 10,000 if Manilal made a default.
3. On dismissal of appeal preferred by Manilal, the present applicant was called upon by a notice to get the amount of fine paid by Manilal failing which he (applicant) should pay it himself. The applicant by his written statement dated 14.3.52 contended that the bond taken from him was not in compliance with the order made by this Court; under Criminal P.C. no such bond could be taken and therefore it was illegal and unenforceable; under Section 426, Criminal P.C. Court had no jurisdiction to make an order directing an accused person to furnish such a security; under Section 386, Criminal P.C. the amount of fine could not be recovered except for special reasons so long as a convicted person was undergoing sentence of imprisonment.
4. All the contentions raised by the applicant were summarily disposed of by the Additional Sessions Judge as under:
Applicant stood as surety for the fine imposed on the accused & not as surety for suspension of the sentence. Applicant has passed a bond in the presence of the Court to pay the fine of the accused. According to it (bond) the Court is entitled to recover the fine of the accused from him....
The applicant was therefore called upon to pay the fine within 4 days failing which it was ordered that the amount of fine would be recovered by attachment of his property and by other lawful means.
5. The applicant has therefore preferred the present appln. for revision requesting this Court to consider the legality & propriety of the order made by the Additional Sessions Judge and set it aside. The application was supported on the same grounds urged before the lower court. I take up for consideration the last mentioned contention in para 2 above first. The contention was that the convict Manilal was undergoing imprisonment and hence in the absence of any special circumstances, there was no question of recovering fine. In support of this contention reliance was placed on Section 386, Criminal P. C. That Section prescribes procedure for recovery of line to which an offender has been sentenced. In the proviso to Sub-section (1) of that Section, it is provided that if the offender has undergone whole of the sentence in default to pay fine, no Court shall issue a warrant mentioned in the Sub-Section unless for special reasons to be recorded in writing it considered necessary to do so. It is an admitted fact that when notice was issued on the applicant, Manilal had not undergone sentence of imprisonment in lieu of fine. Hence the proviso to the Sub-section is not applicable. So long as imprisonment in default to pay fine is not wholly undergone, fine can be realised in the manner provided in the Sub-Section. This contention therefore fails.
6. It was submitted that the order of the Court reproduced in para 2 above, meant that if the offender did not pay fine he had to appear for undergoing imprisonment in default and the security was ordered for that purpose. It was therefore contended that the bond taken by the lower Court was not in conformity with the order made by this Court. The first part of the order of this Court provides for releasing Manilal on bail. When an accused person convicted of an offence is sentenced to a substantive term of imprisonment and also to a term of imprisonment in default to pay fine, the order of bail made by an appellate Court is both for the substantive term of imprisonment and for the term of imprisonment in default to pay fine. Such a person cannot be asked to undergo imprisonment in default to pay fine though he is bailed out. It cannot be urged that he is bailed out for the substantive sentence only. Though such a person is bailed out, fine can be recovered from him in the manner provided in Section 386, Cr.P.C. Under Section 426, Cr.P.C. execution of sentence or order appealed against can be suspended. The word 'sentence' means not only substantive term of imprisonment but also sentence of fine. This Court therefore passed an order for suspension of the sentence. So far as sentence of imprisonment both substantive and in default to pay fine, was concerned, this Court passed an order for bail. As regards the sentence of fine which can be recovered despite furnishing bail as per first part of the order, this Court ordered suspension by directing the lower Court to stay realisation of fine on the applicant furnishing security. It is thus evident that the security to be furnished was not for the appearance of the appellant. For appearance, to undergo the substantive imprisonment as well the imprisonment in default to pay fine, bail was taken. The persons standing as sureties in respect of the order of bail had only to produce the appellant for undergoing imprisonment as provided in Section 499, Cr.P.C. or else to pay the penalty. The applicant who stood as surety for payment of fine had to see that the appellant paid the fine or else to pay the amount of fine as penalty. It cannot therefore be accepted that according to the order of this Court security to be taken for stay of realization of fine was to produce the appellant for undergoing imprisonment in default to pay fine. It, must therefore be held that the bond taken was in conformity with the order made by this Court.
7. It was then contended that under Section 426, Cr.P.C. no such order to furnish security could be made and hence the order made by this Court was illegal. As stated in the preceding para, under Section 426, an order for suspension of sentence could be made and sentence means both imprisonment and fine. The section provides that when an order of suspension is made, the appellant may be released on bail or on his own bond, if he is in confinement. It is not' provided that for suspension of the sentence of fine a security be taken. When fine can be recovered, it will be meaningless to pass an order for suspension of sentence of fine during the pendency of appeal, if the person in whose favour such an order is made cannot be asked to furnish security for payment of fine. This Court making an order for suspension of the sentence of fine had inherent power to have that order carried into effect, or to secure the ends of justice. The ends of justice required that if realization of fine from a person from whom it could be immediately recovered be stayed, pending appeal by him, a security be taken to see that fine was paid on dismissal of appeal and confirmation of the order of fine. It was urged that chapter 39 together with Section 426 was intended to contain a complete and exhaustive statement of the powers of a High Court to grant bail and excluded existence of any additional inherent powers in a High Court relating to the subject of bail. Reliance was placed on - 'Jairam Das v. Emperor' 47 Bom L.R. 634 (P.C), In that case it was held that after an appeal was disposed of by a High Court, it had no inherent power to grant bail to a convicted person desirous of preferring an application for leave to appeal to the Supreme Court. It was in view of this pronouncement that Sub-section 2B was inserted by an amendment to Section 426. The Legislature by the amendment made recognized the existence of power. The ruling cited refers to grant of bail only and not to suspension of sentence of fine. I therefore hold that this Court has inherent power to order stay of realization of fine on furnishing security. It is very rare that such orders are made. In the present case, there is nothing to show that fine could not have been realized from the appellant at that time. Hence, this Court ordering stay of realization of fine had to provide for furnishing of security in the interest of justice. There was nothing illegal in such an order which could be made in the exercise of inherent power of the Court.
8. It was then contended that under Criminal P.C. such a bond could not be taken. The applicant agreed to pay the amount of fine if the appellant failed to do so. There are various kinds of bonds provided in the Code. The bond under consideration is not one of these kinds. It cannot therefore be said that it was not a bond taken under the Code. The forms in the Code are to be used as provided in Section 555. They are not supposed to be exhaustive. A bond taken under the Code is a bond taken in accordance with the provisions contained in the Code, Under the Code an order for suspension of fine could be made. The order for security was made in the exercise of inherent power as stated in para 7 above. The security furnished should therefore be held to have been taken under the Code and therefore it is perfectly valid. The fact that there was no specific provision in the Code for taking such security will not render it invalid or illegal. This contention therefore fails.
9. The Additional Sessions Judge did not follow the procedure prescribed in Section 514 of the Code. He seems to have thought that Section 547 was applicable. That Section provides for recovery of money other than a fine payable by virtue of an order made under the Code. In this case, what was payable was the sum of Rs. 10,000 as penalty as the applicant did not get the fine paid by the appellant. The sum of Rs. 10,000 was payable under the bond as appellant committed default in payment of fine. It was not directly payable by virtue of any order made under the Code such as payment of compensation, payment of maintenance, payment of subsistence charges to witnesses and so on. Unless the order of forfeiture was made, the Court was not entitled to recover the amount from the applicant. The condition in the bond that the applicant shall see to the payment of fine by the appellant is broken. The Lower Court shall therefore follow the aforesaid procedure before realization of the amount from the applicant.
10. The last contention urged was that this Court was not entitled to make any order for stay of fine. Fine was a sentence and suspension of sentence is provided in Section 426. This contention is against the plain provisions of Section 426, Criminal P.C. Suspension of the sentence of fine can be effected by ordering the Court who has to make recovery to stay its realization pending appeal. If an appellate Court made such an order, fine can be realized despite an appeal preferred and if the order of conviction is set aside, apart from ignominy, harassment and inconvenience would be caused to an appellant who on appeal is found not guilty.
11. Result is that the application fails and it must be dismissed. The Additional Sessions Judge shall follow the procedure provided in Section 514, Cr.P.C. in the light of the observations made in para 9 above.