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2001 DIGILAW 1126 (RAJ)

Kanhaiya v. State of Rajasthan

2001-07-21

KHEM CHAND SHARMA, SHIV KUMAR SHARMA

body2001
JUDGMENT 1. - The applicant, a Railway employee was convicted under Sections 326/149 by the trial judge and sentenced to undergo imprisonment for life. This Court after suspending the sentence, released the applicant on bail. Apprehending termination from the Railway services the convict applicant has now again approached this Court seeking suspension of the order of conviction during the pendency of appeal. The meaningful question that arises for our consideration is, whether the Appellate Court, while exercising its powers under Section 389(1), Cr.P.C. can suspend the execution of sentence as well as the conviction, pending an appeal preferred by a convicted person? 2. The controversy centres round the ambit of Section 389(1), Cr.P.C. which reads as under : "389(1) Pending any appeal by a convicted person, the Appellate Court may, for reason to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond." 3. Before considering the provision contained in Section 389(1), Cr.P.C. it will be useful to understand the meaning of words 'conviction' and 'sentence'. 'Conviction' can be taken to mean 'the verdict at the time of trial. 'To convict' means 'to declare guilty after trial'. Whereas primary meaning of word sentence is 'punishment imposed'. A sentence follows a 'conviction'. 4. Various High Courts had occasion to interpret Section 389(1), Cr.P.C. The view expressed by Orissa High Court in Benzamin Khiro v. State of Orissa, III (1995) CCR 701=1995 Cr.L.J. 1683 , vas that, 'conviction continues to be operative unless it is set aside by the higher Court. The word 'execution' as appearing in Sub- section (1) of Section 389 governs both 'sentence' and order appealed against. The order of conviction is not executable and therefore the question of suspension thereof does not arise. The effect of order passed under Sub-section (1) of Section 389 of the Code is not to effect conviction, and to get over' the difficulties encountered on account of the conviction. The conviction is not obliterated by passing of an order under Sub- section (1) of Section 389. 5. Division Bench of Andhra Pradesh High Court in V. Sundararamireddi v. State, 1999 Cr.L.J. 167 , indicated thus : "The two expressions viz. The conviction is not obliterated by passing of an order under Sub- section (1) of Section 389. 5. Division Bench of Andhra Pradesh High Court in V. Sundararamireddi v. State, 1999 Cr.L.J. 167 , indicated thus : "The two expressions viz. 'judgment' and 'order' have to be understood, whenever they occur in any particular section of Code, in the context in which they are employed. An order of 'conviction' is a part of the 'judgment' and the same is followed by a sentence, if awarding of sentence is necessary. The Code has nowhere defined the expression' judgment' or' order'. When once it is accepted that a convicted person in his appeal challenges the judgment as such, pronounced against him by a Criminal Court, it is axiomatic that he can ask for suspension of execution of the sentence, if there is a sentence. He can as well ask for suspension of the operation of the conviction which is a part of the judgment, if that becomes necessary in a given case." 6. Three-Judge Bench of the Hon'ble Supreme Court in Rama Narang v. Ramesh Narang, I (1995) CCR 108 (SC)= (1995) 2 SCC 513 , propounded that what can be suspended under Section 389(1) is the execution of the sentence or order appealed against. The order referred to in Section 389(1) must be an order capable of execution. An order of conviction by itself is not capable of execution under the Code. It is the order of sentence or an order awarding compensation which are capable of execution and which, if not suspended, would be required to be executed by the authorities. But in certain situation the order of conviction can be executable, in the sense, it may incur a disqualification. In such a case the power under Section 389(1) could be invoked. In such situation the attention of the Appellate Court must be specifically invited to the consequence that it is likely to fall to enable it to apply its mind to the issue since under Section 389(1) it is under an obligation to support its order 'for reasons to be recorded in writing'. 7. In such situation the attention of the Appellate Court must be specifically invited to the consequence that it is likely to fall to enable it to apply its mind to the issue since under Section 389(1) it is under an obligation to support its order 'for reasons to be recorded in writing'. 7. In a recent judgment rendered in Smt. Akhtari Bi v. State of M.P., II (2001) CCR 41 (SC)=II (2001) SLT 794=JT 2001(4) SC 40 , their Lordships of the Supreme Court held that the appeal being a statutory right, the Trial Court's verdict does not attain finality during pendency of appeal. In such case, trial is deemed to be continuing despite conviction. Their Lordships kept in abeyance the order of conviction and sentence passed against Smt. Akhtari Bi. 8. A close look at Section 389(1) demonstrates that the Legislature provides for suspension of the rigour of the judgment of the Trial Court pending disposal of appeal. There may be cases where conviction may not be of any effect pending the decision of appeal and the convict in such a case may only seek suspension of the execution of the sentence. But there may be cases where conviction becomes disqualification unless it is ceased to operate. Such a situation necessitates the suspension of conviction till the disposal of the appeal. It is well settled that once the conviction and sentence are set aside in appeal, the acquittal dates back to the date of conviction and it is wipped off from the date. When the order of conviction rendered by the Trial Court does not attain finality during the pendency of the appeal and after the appeal is allowed the order of acquittal relates back to the date of the order of conviction, then why should we consider the words 'order appealed against' incorporated in Section 389(1) in a narrow sense as to exclude 'conviction'? Where the effect of order of conviction entails disqualification from contesting the election or termination from the services, the Appellate Court on the specific request made in this regard by the convict, may suspend the conviction after assigning the reasons. The Appellate Court may suspend the order of conviction under Section 389(1), Cr.P.C. where it is capable of execution. 9. Where the effect of order of conviction entails disqualification from contesting the election or termination from the services, the Appellate Court on the specific request made in this regard by the convict, may suspend the conviction after assigning the reasons. The Appellate Court may suspend the order of conviction under Section 389(1), Cr.P.C. where it is capable of execution. 9. Coming to the case on hand it may be noticed that the applicant is the Railway employee working as Gang Man with the Western Railway. He has been convicted under Section 326, IPC with the aid of Section 149 to undergo life imprisonment. The sentence awarded to the applicant has already been suspended and now in view of the order of conviction of the learned trial Judge the Western Railway in order to terminate the services of the applicant, issued a notice under Rule 14(2) of the Railway Servants (Discipline & Appellate) Rules, 1968. Specifically inviting our attention towards the loss of his employment and untold hardship and starvation of his family, applicant has prayed for suspension of the order of conviction. We have given our anxious consideration to the rival submissions advanced before us and scanned order of conviction. Looking to the consequences likely to fall on the applicant because of the conviction we are of the view that in the instant case the order of conviction is capable of execution, in a sense that it may result in termination of the services of the applicant. 10. Consequently, we allow the application and direct that the order of conviction insofar as it relates to convict-appellant Kanhaiya, shall remain suspended till the disposal of the criminal appeal.Application allowed. *******