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2007 DIGILAW 2150 (RAJ)

Vijay Saxena v. State of Rajasthan

2007-11-05

MAHESH CHANDRA SHARMA, SHIV KUMAR SHARMA

body2007
JUDGMENT 1. 1. The appellant, a Mechanic in Central Jail, Ajmer was convicted and sentenced under Section 302 read with Section 34 of the Indian Penal Code by the Special Judge (Fake Currency Cases) Jaipur City, Jaipur vide judgment dated August 14, 2007. This court after suspending the sentence awarded to applicant released him on bail. During the pendency of appeal Director General Prisons, Rajasthan Jaipur terminated the services of the applicant vide order dated September 6, 2007 purportedly to have been passed under Rule 19 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958. 2. Aggrieved against the said order the appellant has now approached this court seeking suspension of the order of conviction during the pendency of the appeal. 3. The meaningful question that arises for consideration is whether the appellate court while exercising its powers under Section 389(1) Cr.P.C. can suspend the order of conviction? 4. The controversy centers 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." 5. 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'. 6. Various High Courts had occasion to interpret section 398(1) Cr.P.C. The view expressed by Orissa High Court in Benzamin Khiro v. State of Orissa (1995 Cr.L.J. 1682) was 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 accountered on account of the conviction. 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 accountered on account of the conviction. The conviction is not obliterated by passing of an order under sub- section (1) of Section 389. 7. Division Bench of Andhra Pradesh High Court in V. Sundararmireddi v. State (1990 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." 8. Three Judge Bench of the Hon'ble Supreme Court in Rama Narang v. Ramesh Narang (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 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. But in certain situation the order of conviction can be executable, in the sense, it may occur a disqualification. In such a case the power under section 389(1) could be invoked. But in certain situation the order of conviction can be executable, in the sense, it may occur 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." 9. In a recent judgment rendered in Smt. Akhtari Bi v. State of M.P. (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 cases trial is deemed to be continuing despite conviction. Their Lordships kept in abeyance the order of conviction and sentence passed against Smt. Akhtari Bi. 10. 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 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 wiped 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 be 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 a 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. 11. Where the effect of order of conviction entails disqualification from contesting the election or termination from the services, the appellate court on a 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. 11. Coming to the case on hand it may be noticed that the appellant has been convicted under Section 302 with the aid of Section 34 IPC. The sentence awarded to appellant had already been suspended and now in view of the order of conviction of the learned trial judge, the Director General Prisons terminated the services of the appellant under Rule 19 of the CCA Rules. It appears to us on record that the appellant is a physically handicapped person, his wife is chronic heart patient and appellant has to perform marriages of his three daughters and because of the loss of employment the appellant and his family have to suffer untold hardships. Since the order of conviction has already been executed (sic.) it is necessary to issue the appropriate directions. We, therefore, in the interest of justice suspend the order of conviction during the pendency of the appeal and direct that the order of conviction in so far it relates to appellant shall remain suspended till the disposal of criminal appeal. We also stay the order dated September 6, 2007 passed by Director General Prisons, Rajasthan, Jaipur under rule 19 of the CCA Rules and direct that appellant Vijay Saxena shall be taken back in service forthwith. 12. Resultantly, we allow the application.Application allowed. *******