S.389 CrPC & S.148 NI Act Independent Of Each Other, Non-Compliance Of Latter Doesn't Jeopardize Suspension Of Sentence Pending Appeal: P&H High Court

The bench comprising Justice Sureshwar Thakur further added that non-compliance of a conclusive order made under Section 148 of the Act, would not bring any ill consequence upon the personal liberty of the convict under Section 389 CPC, nor would the errant convict will become amenable, for his being put to judicial custody.

The court made it clear that in order to ensure that the order suspending execution of sentence of imprisonment takes fullest effect, the Appellate Court may, under Section 389 CrPC direct the convict to deposit a reasonable percentum of the cheque amount, in addition to personal and surety bonds.

The court further explained:

In case the Appellate Court under Section 389 of CrPC suspends the sentence of imprisonment upon a condition to deposits 20% of the compensation / cheque amount, then in the subsequent application preferred under Section 148 of NI Act, the Appellate Court may, bearing in mind all the relevant facts "inclusive of immense pain being caused to the estate of the convict", direct the convict to deposit another 20% of the compensation amount.

If both the applications are simultaneously filed, then both required to be decided in a just and fair manner, keeping in mind the principle of inter-se proportionality.

The disbursement of monies, as deposited, by the convict, in compliance to an order made under Section 389 CrPC shall become regulated by the outcome of the apposite trial, but in the event of composition of the offence, occurring amongst the concerned, the appellate Court may cause lawful releases thereof, to the complainant.

The court was dealing with a plea moved by complainant, arguing that respondent-convict's suspension of sentence could not be effected unless the subsequent order passed under Section 148 NI Act for deposit of 20% compensation amount is complied with.

Such contention came to be rejected by the High Court which held that Section 148 of the NDPS Act over-rides any provision contained in the CrPC. However, it does not completely over-ride nor oust the mandate carried in Section 389 of the Code.

The above inference becomes grounded in the trite rubric, that Section 389 of the Cr.P.C, works to facilitate the protection of liberty of a convict, through his / hers, on certain relevant imposable conditions, hence seeking relief qua the execution of the substantive sentence of imprisonment imposed upon, hers / him, becoming suspended during the pendency of the apposite appeal. Contrarily, the mandate carried in Section 148 (supra), rather is merely workable, as a compensatory / interim pecuniary relief to the complainant, hence during the pendency of the apposite appeal.

Moreover, a circumspect reading of Section 389 reveals that, for ensuring execution of the order passed under Section 148 of the Act, the latter is not jurisdictionally empowered to subject the accused to a judicial incarceration the court added.

Similarly, there is no provision in Section 148 of the Act, like the one carried in Section 389 of the Cr.P.C. appertaining to the protection of the personal liberty of the convict, and or, his liberty being not jeopardized, during the pendency of his appeal, before the learned Appellate Court.

Case Title: Amit Kumar (Deceased) through his LR's mother Smt. Sushila Devi v. State of Haryana and another

Citation: 2022 LiveLaw (PH) 237 

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