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2008 DIGILAW 49 (RAJ)

Harish Chand v. State of Rajasthan

2008-01-08

G.S.SARRAF

body2008
JUDGMENT 1. - The appellant/ applicant has filed an application with the prayer that the conviction recorded by Additional District and Sessions Judge (Fast Track) No. 3, Bharatpur by judgment dated 21.7.2007 in Sessions case No. 139/2005, State v. Badan Singh and. Others against the appellant/ applicant under Sections 323, 308, Indian Penal Code be stayed during the pendency of the appeal. 2. Brief facts giving rise to the present application are that on 8.10.2003 an incident took place in which persons on both the sides sustained injuries. Reports were lodged by both the sides and after investigation challans were filed against both the sides. In this case, after trial Additional District and Sessions Judge (Fast Track) No. 3, Bharatpur convicted the appellant applicant and ten others under Sections 323, 308, Indian Penal Code and sentenced them to six months rigorous imprisonment and a fine of Rs. 500/- and in default of payment of the fine further simple imprisonment for one month under Section 323 Indian Penal Code and to three years rigorous imprisonment and a fine of Rs. 2,000/- and in default of payment of the fine further simple imprisonment for six months under Section 308, IPC. In the cross case No. 140/05 (State v. Digambar Singh & Ors.) the Court by judgment passed on the same date convicted seven accused persons under Sections 323, 324, Indian Penal Code and released them on probation under Section 4(1) or the Probation of Offenders Act on executing a bail bond of Rs. 2,000/- and a personal bond in the like amount for keeping peace and maintaining good behaviour for a period of two years. The appellant/ applicant and the ten co-accused filed an appeal and made a prayer therein for suspension of sentence whereupon by order dated 2.8.2007 passed by a coordinate Bench of this Court the sentence was suspended during the pendency or the appeal on each of the appellants furnishing a personal bond in the sum of Rs. 20,000/- together with a surety bond in the like amount to the satisfaction of the Trial Court. The appellant/applicant has now filed this application for stay or conviction. 3. Heard learned Counsel for the appellant/applicant and learned Public Prosecutor. 4. 20,000/- together with a surety bond in the like amount to the satisfaction of the Trial Court. The appellant/applicant has now filed this application for stay or conviction. 3. Heard learned Counsel for the appellant/applicant and learned Public Prosecutor. 4. Learned Counsel for the appellant applicant submits that the injuries suffered by all the injured persons in this case are simple in nature by blunt weapon and, therefore, the case does not travel beyond the offence under Section 323 Indian Penal Code whereas in the cross case seven accused persons have been convicted under Section 324 Indian Penal Code also for causing injuries by sharp weapon. submits that in view of the cross case and in view of the injuries suffered by the accused persons the availability of the right of private defence to the appellant/ applicant and the co-accused cannot be ruled out. He submits that specific role played by the appellant/applicant is not clear by the evidence available on the record. He submits that the appellant/applicant has been declared successful in the examination held by the Rajasthan Public Service Commission, Ajmer for the post of Teacher Gr. III and if conviction is not stayed then irreparable loss will be caused to the appellant/ applicant because in view of the conviction he may not be appointed to the post for which he has been selected. He, therefore, prays that the judgment of the conviction passed by the appellant/ applicant be stayed during the pendency of this appeal. He places reliance on 2007 (1) Supreme 557 , I (1995) CCR 108 (SC)= (1995) 2 SCC 513 , 2005 WLC (Raj.) UC 718 and 2002 Cr.Law Reporter (Raj.) 103. 5. Learned Public Prosecutor opposes the application. 6. Section 389(1), Criminal Procedure Code empowers the Appellate Court to order that the execution or the sentence or order appealed against be suspended pending the appeal. What can be suspended under this provision is the execution of the sentence or the execution of the order. The order referred to in Section 389(1) must be an order capable of execution. An order or 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 re- executed by the authorities. An order or 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 re- executed by the authorities. However, if the order of conviction is to result in some disqualification, a narrow meaning should not be given to Section 389(1), Criminal Procedure Code to bar the Court from granting an order staying operation of the order of conviction in a fit case. In certain situations the order of conviction can be executable, in the sense that the appellant may incur a disqualification as the instant case. In such a case the power under Section 389(1) of the Code can be invoked to stay the conviction. 7. Though for the purpose of deciding this application it is not necessary to minutely examine the merits or the case nevertheless the facts and the circumstances narrated by learned Counsel for the appellant/ applicant and not controverted by learned Public Prosecutor have an important bearing in the matter. 8. The appellant/ applicant is said to have been selected for the post of Teacher Gr. III by the Rajasthan Public Service Commission, Ajmer and the effect of the order or conviction may entail disqualification from appointment to the above post. 9. Looking to the consequences likely to fall on the appellant/ applicant because of the conviction I am of the view that in the particular facts and circumstances of this case the order of conviction of the appellant/ applicant deserves to be stayed. 10. Consequently, I allow the application and direct that the order of conviction dated 21.7.2007 insofar as it relates to the appellant/ applicant shall remain stayed during the pendency of the criminal appeal.Application allowed. *******