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2002 DIGILAW 1250 (ALL)

NARESH PRATAP SINGH v. STATE OF U P

2002-09-11

SUNIL AMBWANI

body2002
SUNIL AMBWANI, J. Heard Counsel for petitioner and learned Standing Counsel. 2. Petitioner was appointed as constable in Civil Police U. P. in 1977 and was posted at Shahjahanpur. A First Information Report was registered on 25-4-2000 at police station Tirwa, District Kannauj as Case Crime No. 65 of 2000 under Section 498-A/304-B, IPC, alleging that petitioners daughter-in-law was murdered by her husband in which petitioner, his wife and his son had entered into conspiracy. The petitioner was arrested on 26-4-2000. The case was committed to sessions on 1-2-2001 where he did not plead guilty. After recording prosecution evidence in which the father, brother, mother and sister-in- law of deceased turned hostile, the Sessions Judge rejected petitioners alibi and actuated the petitioner along with his two sons and wife under Section 498-A/304-B, IPC, but convicted them under Section 302/34, IPC. He rejected the story of suicide and found that the deceased was shot by a country made pistol and that the dead-body was left in the house for 2-3 days. All the accused, including the petitioner, were sentenced for life imprisonment by the Sessions Judge, Kannauj by his judgment and order dated 6-3-2002. 3. After his conviction and life sentence, the Superintendent of Police, Kanpur Dehat by his order, dated 17-4-2002 dismissed petitioner Naresh Pratap Singh from service under Rule 8 (2) (a) of U. P. Police Officers of Subordinate Rank (Punishment and Appeal) Rules, 1991 read with Regulation 493 (a) of U. P. Police Regulations, after finding that the petitioner had been convicted and sentenced to life imprisonment under Section 302/34, IPC and that it is wholly improper to keep such a person in disciplined force. 4. Petitioner along with other convicted members of his family have filed a Criminal Appeal No. 805 of 2002 in which on 24-5-2002, this Court has passed the following order : "heard learned Counsel for appellants No. 1 and 2 as well as learned AGA on bail prayer. Record of the lower Court has been received which has been perused. It is submitted for the appellants that mother, brother and wife of the brother of deceased turned hostile and did not support the prosecution case. The appellants were on bail during trial. They shall be released on bail. Record of the lower Court has been received which has been perused. It is submitted for the appellants that mother, brother and wife of the brother of deceased turned hostile and did not support the prosecution case. The appellants were on bail during trial. They shall be released on bail. Let the appellants No. 1, 2 and 4, namely, Dhirendra Pratap Sigh, Kunwar Pratap Singh alias Raju and Naresh Pratap Singh respectively, convicted and sentenced in S. T. No. 80 of 2001, P. S. Tiwari, district Kannauj be released on bail during pendency of his appeal on their furnishing a personal bond and two sureties, each in the like amount to the satisfaction of the Chief Judicial Magistrate, Kannauj. After the appellants file bail bonds, photostat copies thereof shall be sent to this Court by the Chief Judicial Magistrate, concerned within a month for the purpose of record. Sd. M. C. Jain. " 5. After release on bail, on the strength of the aforesaid order, the petitioner has filed this writ petition for quashing the order dated 17-4-2002 by which he was dismissed from service, on the ground that U. P. Police Regulations do not empower the Superintendent of Police to dismiss petitioner from service without awaiting the result of appeal preferred by the petitioner and the order of dismissal was passed without affording any opportunity and without applying restrictions contained in Regulation 492 and that the order is also violative of Article 311 (2) of the Constitution of India the principles of natural justice. It is further submitted that the Court has given reasons to release the petitioner on bail and that since a criminal appeal in continuation of trial in which petitioners guilt has not been proved so far, he is entitled to be reinstated in service. 6. Learned Standing Counsel, on the other hand, submits that petitioner was not dismissed only on account of his conviction and sentence. The competent authority considered the effect of the judgment and found that it was not proper for the petitioner to continue in disciplined force. According to him, Section 389 (1), Cr. P. C. provides powers to the appellate Court for stay of execution of sentence and order. It does not provide for stay of conviction. According to him, petitioners release on bail does not affect his conviction and that the conviction does not loose its efficacy and sting. According to him, Section 389 (1), Cr. P. C. provides powers to the appellate Court for stay of execution of sentence and order. It does not provide for stay of conviction. According to him, petitioners release on bail does not affect his conviction and that the conviction does not loose its efficacy and sting. The sentence is not obliterated but is kept in abeyance. The conviction continues and is not wiped out. To allow a police constable convicted under Section 302/34, IPC and sentenced to lie imprisonment, release on bail will seriously affect public faith in police, and, as a matter of fact on public policy he should not be permitted to serve unless he is acquitted of the offence in appeal. The Police Department was not obliged to wait for the decision in appeal and that the petitioner was rightly dismissed under Rule 8 (2) (a) of U. P. Police Officers of Subordinate Rank (Punishment and Appeal) Rules, 1991 for which no show cause notice or opportunity of hearing was required to be given to him. 7. In K. C. Sareen v. C. B. I. Chandigarh, 2001 (2) JIC 739 (SC) : 2001 (6) SCC 584 , the Supreme Court relied upon Rama Narang v. Ramesh Narang,1995 (1) JIC 889 (SC) : (1995) 2 SCC 513 , in which it was held that the order of conviction by itself is not capable of execution under the Code. It is the order of sentence or an order awarding compensation or imposing fine or release on probation which are capable of execution and which, if not suspended, would be required to be executed by the authorities. Since the order of conviction does not on the mere filing of an appeal disappear, it is difficult to accept the submission that Section 267 of the Companies Act must be read to apply only to a final order of conviction. The Supreme Court further found in Para 10 that in certain situations, the order of conviction can be executable, in the sense, it may incur a disqualification as in the instant case. In such a case, the power under Section 389 (1) of the Code could be invoked. The Supreme Court further found in Para 10 that in certain situations, the order of conviction can be executable, in the sense, it may incur a disqualification as in the instant case. In such a case, the power under Section 389 (1) of the Code could be invoked. In such situations, the attention of the appellate Court must be specifically invited to the consequences which are 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 by it in writing. If the attention of the Court is not invited to this specific consequence which is likely to fall upon conviction, how can it be expected to assign reasons relevant thereto? No one can be allowed to play hide and seek with the Court; he cannot suppress the precise purpose for which he seeks suspension of the conviction and obtain a general order of stay and then contend that the disqualification has ceased to operate. Thereafter, the Court referred to public policy in which corruption by public servants was considered and it was held that if such a public servant convicted and sentenced under the Prevention of Corruption Act becomes entitled to hold public office and is permitted to do official acts until he is judicially absolved, from such findings by reason of suspension of the order of conviction, the public interest shall suffer irreparably. Para 13 of the judgment which provides that in such cases, the convicted public servant must be kept under the disability of the conviction in spite of keeping the sentence of imprisonment in abeyance. The Supreme Court finally held that in such cases, the power to order suspension of conviction under Section 389 (1) or under Section 482, Cr. P. C. should not have been exercised. 8. In B. R. Kapoor v. State of Tamil Nadu, 2001 (7) SCC 231 , a Constitution Bench of the Supreme Court held that High Court has power to suspend execution of sentence and not the sentence. The suspension of the execution of sentence does not affect the convictions and that the sentence imposed continues to incurs disqualification from seeking legislative office. 9. The suspension of the execution of sentence does not affect the convictions and that the sentence imposed continues to incurs disqualification from seeking legislative office. 9. In Union of India v. Ramesh Kumar, AIR 1997 SC 2531, it was held that the appellate Courts suspending execution of sentence in appeal does not amount to the conviction losing its efficacy. The sentence is not obliterated. It is only postponed and kept in abeyance. 10. In S. Vasundara v. Canara Bank, (1997) 9 SCC 523 , the Supreme Court held that in case a finding of fact has been recorded by a criminal Court, though the sentence was suspended by the High Court in appeal, the authorities were still competent to take action under Regulation 11 of the Canara Bank Officials Employees (Discipline and Appeal) Regulations which provided that an office employee convicted and sentenced of charges or from the strength of facts or conclusions arrived at by judicial trial can be inflicted any of the penalties specified in Regulation 4. 11. In the present case, neither the conviction nor sentence has been stayed. This Court has ordered the petitioner to be released on bail. In the circumstances, the effect of conviction and sentence is not taken away. On the date, the petitioner was dismissed, his conviction and sentence was operative. It cannot be quashed on the ground that after making the order, the petitioner has been released on bail. 12. In the aforesaid facts and circumstances, the writ petition is wholly misconceived and is dismissed. Petition dismissed. .