ORDER
K. Hema, J.
1. Can the appellate court allow the appellant to furnish suitable security in lieu of payment of fine by him during pendency of appeal? This question arises for consideration in this petition.
2. Petitioner filed an appeal against the conviction and sentence passed against him for offence under the Abkari Act. In the said appeal, this court suspended the sentence of imprisonment alone, on an application filed by appellant. The sentence of fine was not suspended but this court granted time for payment of fine. According to petitioner, he is not able to deposit the huge amount of fine of Rs. 1 lakh which is imposed on him, being the minimum fine for offence under Section 8(1) and (2) of the Abkari Act.
3. Petitioner is stated to be a coolie, getting a meager income of Rs. 1,000/- which is not sufficient to meet even his daily needs. Petitioner is not having any landed property, except the house where he is living with his family. He is also a heart patient. He has also taken loans from the bank and could not even repay the same. In such circumstances, in spite of best efforts, he cannot deposit the fine. It is also averred in the affidavit filed by the petitioner that people of the locality are protecting him and his family, but for their support, the entire family would have committed suicide.
4. It is also stated in the petition that certain people of the locality have come forward to help him by offering sufficient security, including landed property, in lieu of payment of fine. He produced documents to prove all these averments. According to petitioner, he has a strong case in appeal. He expects that the appeal be allowed and the conviction and sentence be set aside. In the above circumstances, he requests that he may be allowed to furnish solvent sureties and also landed security in lieu of payment of fine of Rs. 1 lakh during pendency of this appeal.
5. Can this prayer be allowed
6. First of all, there is no specific provision in the Code of Criminal Procedure which permits the court to accept security or surety in lieu of payment of fine, during pendency of appeal. But, in a case where sentence of fine is not suspended and fine cannot be paid by appellant due to financial incapacity, appellant will be forced to undergo imprisonment, which is imposed in default of payment of a fine. He will be compelled to undergo default sentence well in advance and even before correctness of the conviction is examined on a detailed final hearing.
7. It can also so happen that by the time the appellant is found not guilty by appellate court, he would have already suffered a part of the sentence imposed for the offence. An accused thus, undergoes the default sentence, during the pendency of the appeal itself, even before the merit in the appeal is tested by the court. Strictly speaking, such imprisonment cannot be said to be illegal or unauthorised because, it is within powers of appellate court to suspend or not suspend the sentence of fine. However, this renders the right of appeal nugatory because appellant is compelled to undergo a part of the sentence for the offence of which, he may be found not guilty, towards end of the proceedings.
8. Experience would show that at least in some of the cases, such imprisonment pending appeal would be undeserving. There may be cases where innocent persons are falsely implicated, witnesses are purchased and tutored to speak against him and such persons are convicted also. But, the merit of the contentions can be appreciated only after a detailed hearing. A wrong conviction may be corrected only towards the end of the proceedings. But that time, appellant would have already undergone the trauma of the imprisonment. All these happen mainly due to the incapacity of appellant to pay the fine immediately.
9. The other reason is the failure in the Criminal Justice System in this country. There is no mechanism by which all appeals can ordinarily be disposed of on the same day of filing of the appeal or at least immediately thereafter. There can be delay in disposal of the appeal due to unavoidable reasons. Time would be required to get lower court records. There will be delay in serving notice on the respondent, particularly if the respondent is a private complainant-respondent. The pendency of other older appeals in which appellants would be in custody for a longer period also may be a dissuading factor to give preference to older appeals. All these, naturally, cause delay in disposal of a recently-filed appeal.
10. The Supreme Court also took note of the unavoidable delay caused in disposal of appeals, while dealing with the question relating to suspension of sentence and in Dadu v. State of Maharashtra : 2000CriLJ4619 it was held thus:
Not providing atleast one right of appeal would negate the due process of law in the matter of dispensation of criminal justice.... Providing aright of appeal but totally disarming the court from granting interim relief in the form of suspension of sentence would be unjust, unfair and violative of Article 21 of the Constitution particularly when no mechanism is provided for early disposal of the appeal. The pendency of criminal litigation and the experience in dealing with pending matters indicate no possibility of early hearing of the appeal and its disposal on merits atleast in many High Courts.
(emphasis supplied)
11. Referring to delay of disposal of cases in another context, the Supreme Court In Nimenn Sangma v. Home Secretary, Government of Meghalaya : 1979CriLJ941 , observed thus:
Criminal justice breaks down at a point when expeditious trial is not attempted while the affected parties are languishing in jail.... We do not approve of this course and breach of the rule of law and express our strong displeasure at this chaotic state of affairs verging on wholesale breach of human rights guaranteed under the Constitution especially under Article 21 as interpreted by this Court.
12. Thus, it is an accepted fact that there is no effective mechanism by which the appeals can disposed of without reasonable delay. Such delay is inevitable. But, in the mean time, an appellant who cannot pay fine during pendency of appeal due to sheer poor financial capacity and who may ultimately win the appeal would have already undergone a considerable length of imprisonment or the even the entire period of default sentence, due to inevitable legal fetters. But, Criminal Justice System in our country, does not compensate the prisoner who has undeservingly undergone a part of the sentence. The system does not make any amends for the imprisonment which the accused has wrongly suffered in jail. It is also a painful reality that no law compensates any person for the unwarranted detention or imprisonment or the trauma which he has languished in jail due to procedural hassles.
13. Still, despite all the defects in the system, no law, lawmakers or the Court ever expect any person to suffer any punishment which he does not actually deserve. At the same time, the system in this country does not lend an effective machinery for disposal of appeals without delay even though it provides a right of appeal to the accused. In such circumstances, in my considered view, the courts must not hesitate to come to the rescue of appellants, whenever and wherever possible, and must in all appropriate cases, extend its arms to prevent a person from undergoing imprisonment during pendency of appeal, especially if the appeals cannot be finally heard and disposed of without delay.
14. It is worthy to bear in mind what the Supreme Court held in Bhagwan Rama Shimle Gosai v. State of Gujarat : 1999CriLJ2568 :
When the appellate court finds that due to practical reasons such appeals cannot be disposed of expeditiously the appellate court must bestow special concern in the matter of suspending the sentence. So as to make the appeal right, meaningful and effective, of course appellate courts can impose similar conditions when bail is granted.
15. But, that does not mean that as a remedial measure, the court has to suspend the sentence invariably in all cases. It is well settled that it is within the discretion of the court, whether to suspend the sentence or not, depending on several factors. The court may suspend either the entire sentence of imprisonment and fine or only the sentence of fine. But, while suspending the imprisonment alone, it must be remembered that the intention of the court is not to see that the convict remains in jail till fine is paid or that he undergoes the default sentence, in case he is unable to pay the fine. The appellate court abstains from suspending payment of fine not as a punishment in advance.
16. At the stage of admission, when the court prima facie finds that appellant has a very weak case in appeal and his chances of winning the appeal is bleak, appellate court declines to suspend sentence of fine. The appellate court, in a way, is only ensuring payment or recovery of fine by appellant, if ultimately appellant loses the appeal. But, even in cases where sentence of fine is not suspended, appellant may, after a final hearing, get an order in his favour and the appeal may be allowed.
17. So, while bearing in mind all what I have discussed above, I find when an appellant requests the court to allow him to furnish security to ensure payment of fine, there is absolutely no reason why such prayer shall not be allowed. In my view, in fit cases, instead of insisting for payment or deposit of fine in a pending appeal, the court may accept sufficient security in lieu of payment of fine. The court may allow him to execute bond, with or without sureties for this purpose. The court may accept bank guarantee, landed property, fixed deposit certificate etc., or any such security as the court may deem fit and proper. All what the court has to ensure in such case is that payment or recovery of the fine can be effected, if ultimately the appeal is dismissed.
18. It has to be borne in mind in this context that even if the accused who loses the appeal is an indigent person, he may raise the amount to pay the fine, with the help of others who will be ready to afford monetary aid to the appellant to pay the fine. He will be able to thus, avoid undergoing default sentence. Therefore, if such persons come forward in advance, during pendency of appeal, to help the appellant, I find absolutely no reason why the court shall not accept such security in lieu of payment of fine. But, It is unnecessary that the appellant shall, under all circumstance, undergo default sentence for non-payment of fine, especially when disposal of appeal, cannot be assured without delay.
19. I am also persuaded by the decision of the Madras High Court reported in Bay Leathers Exports Pvt. Ltd. v. Saileela 1998(2) Crimes 221 which, in all fairness, is brought to my notice by learned Public Prosecutor. It is held therein as follows:. For suspending sentence of fine, the legitimate condition that could be imposed to direct the appellant to famish suitable security which could ensure the deposit of fine which may ultimately be imposed on the appellant as a result of the decision of the appeal.
20. Now, coming to the facts of this case, it is needless to say that in Indian conditions, a person like the appellant will not be able to raise a huge amount of Rs. 1 lakh immediately. So, he will be forced to undergo default sentence, since it is not possible to dispose of this appeal without getting lower court records and there are other cases also pending before this court, where appellants are in custody even for a longer period. At the same time, the appellant expects a fair chance of winning the appeal. But, the merit of his appeal cannot be decided by this court, without a final hearing on getting the lower court records. Hence, I find that this is a fit case where appellant can be allowed to offer security in lieu of payment of fine during pendency of this appeal.
In the result, the following order is passed:
1. The appellant-petitioner is allowed to furnish sufficient security, with or without solvent surety or sureties and execute a bond accordingly on such terms and conditions which the trial court may deem fit and proper for the payment of fine.
2. The trial court is also directed to explain to the surety or sureties, the consequences which they may have to face, in case the appellant loses the appeal.
With this direction, this petition is allowed.