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2004 DIGILAW 973 (JHR)

Kirtan Mahto v. State Of Jharkhand

2004-09-22

R.K.MERATHIA, VISHNUDEO NARAYAN

body2004
ORDER 1. Heard the learned counsel for the parties. 2. The IA No. 1024 of 2004 at flag "O" under Section 389 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the said Code) has been filed at the instance of appellant Kirtan Mahto to stay/ suspend the judgment of conviction dated 17.1.2004 and sentence dated 21.1.2004 passed by the learned Court below in SI No. 707 of 1997 against him. 3. The facts giving rise to this application are as follows : Appellant Kirtan Mahto was prosecuted along with other co-appellant for the offence under Sections 302, 201 and 120B of the Indian Penal Code, in Sessions Trial No. 40 of 1997 arising out of Barkagaon PS Case No. 87 of 1994 (G.R. Case No. 2092 of 1994) and he was found guilty, convicted and sentenced to undergo RI for the life for the offence under Section 302 of the Indian Penal Code and to pay a fine of Rs. 2000/- and also to undergo RI for five years under Section 201 of the Indian Penal Code, and also to pay a fine of Rs. 1,000/- and in default thereof to undergo RI for six months. However, his sentences were ordered to run concurrently. Other co-appellants were also convicted and sentenced. Appellant Kirtan Mahto and his wife Dubhani Devi preferred appeal against the impugned judgment and order aforesaid. The said appeal was admitted for hearing vide order dated 9.3.2004 and appellant Kirtan Mahto along with his wife were released on bail during the pendency of this appeal in exercise of the power under Section 389 of the Code. 4. It has been submitted by the learned counsel for the appellant Kirtan Mahto that after the release on bail appellant Kirtan Mahto joined his service on 16.03.2004 in Adarsh Middle School, Barkagaon where he was posted as teacher and was served with a memorandum dated 29.6.2004 under the signature of the District Education Superintendent, Hazaribagh that his services stand terminated and in such a situation serious disqualification and consequences has ensued due to his conviction regarding his service and in view of the provisions contained in Section 389 of the said Code, the conviction of this appellant may be suspended. In support of his contention reliance has been placed upon the ratio of the case of S.M. Malik and Ors. v. State, 1990 Cri LJ 1919. 5. In support of his contention reliance has been placed upon the ratio of the case of S.M. Malik and Ors. v. State, 1990 Cri LJ 1919. 5. The learned APP has submitted that Section 389 of the Code only contemplates that the execution of the sentence or order appealed against be suspended and also, if, the appellant is in confinement, he may be released on bail and it does not contemplate regarding the suspension of conviction pending appeal and as such the ratio of the case of S.M. Malik, (supra) has no application in this case. 6. In view of the submissions aforesaid for proper appreciation we quote Section 389 of the Code, which runs thus : "389. Suspension of sentence pending the appeal; release of appellant on bail-(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons 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. (2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by convicted person to a Court subordinate thereto. (3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall - (i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or (ii) where the office of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub-section (I), and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended. (4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced." 7. (4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced." 7. It appears that Section 389 of the Code, mandates the suspension of the execution of the sentence or order appealed against by a convicted person and if he is in confinement he may be released on bail pending the appeal. It does not contemplate suspension of conviction pending the appeal as nowhere in the provisions of the said Code or any other enactment or Rules a provision has been made for suspension of conviction pending the appeal. The word "execution" qualifies both the words "sentence" and the "orders". It is made clear that the order of conviction is not executable one and thus the question of suspending conviction does not arise (sic) and it is neither the spirit nor the mandate of the legislature as contained under Section 389 of the CrPC Conviction does remain in force till it is set aside in appeal or in revision. Therefore, the ratio of the case of S.M. Malik, (supra) relied upon by the appellant in support of his contention prime facie does not lay down the correct interpretation of Section 389 of Cr PC and the same is of no help to the appellant. 8. Viewed thus the Interlocutory Application No. 1024 of 2004 at flag "O" is hereby rejected.