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2009 DIGILAW 335 (RAJ)

Kanhaiya Lal v. State of Rajasthan

2009-02-04

BHANWAROO KHAN

body2009
JUDGMENT Bhanwaroo Khan, J. - Petitioner Kanhaiya Lal, a public servant as a Patwari along with other co-accused faced trial for the offence under Sections 420, 120-B, 467, 468 and 471 I.P.C. and was convicted and sentenced by the Additional Chief Judicial Magistrate, Neem Ka Thana by the judgment dated 2.8.2004. Thereafter an appeal was filed before the Addl. Sessions Judge, Neem Ka Thana. On the application for suspension of execution of sentence, the appellate Court vide order dated 4.8.2004 suspended execution of the sentence during pendency of the appeal. During the pendency of the appeal, the petitioner filed an application under Section 389 Cr.P.C. for suspension/stay of conviction. The appellate Court after hearing both the sides vide order dated 24.5.2005 rejected the application and declined the relief sought for on the ground that there is no provision for suspension of conviction under Section 489 (sic 389) Cr.P.C. Feeling aggrieved of the order, the petitioner has filed the present Misc. Petition for quashing of the order dated 24.5.2005 and seeking further relief to stay of the judgment of conviction.2. Heard learned counsel for the petitioner and learned Public Prosecutor.3. Learned counsel for the petitioner has submitted that during pendency of the appeal sentence as well as the conviction can be suspended under Section 389 Cr.P.C. when the ground existed to do so. Referring the facts of the present case, learned counsel for the petitioner has submitted that in case conviction is not stayed/suspended the petitioner will loose his job and it would be very difficult for him to pull on his family as service is the only source of his livelihood. In support of his submission, learned counsel for the petitioner has placed reliance on the D.B. Judgment passed by this Court in the matter of Kanhaiya v. The State of Rajasthan, 2001(3) WLC (Raj.) 411 and also on the order dated 2.8.2001 passed by a Division Bench of this Court in the matter of Furquan Ahmed & Anr. v. State of Rajasthan, D.B. Criminal Misc. Stay (Suspension of Conviction) Application No. 772 of 2001 in D.B. Criminal Appeal No. 660 of 1996. 4. Learned Public Prosecutor on the other hand has submitted that conviction can only be suspended in very rare circumstances and it should not be done merely because the accused will loose his job. v. State of Rajasthan, D.B. Criminal Misc. Stay (Suspension of Conviction) Application No. 772 of 2001 in D.B. Criminal Appeal No. 660 of 1996. 4. Learned Public Prosecutor on the other hand has submitted that conviction can only be suspended in very rare circumstances and it should not be done merely because the accused will loose his job. This ground alone is not sufficient for suspending conviction looking to the nature of the offence committed by the petitioner. Learned Public Prosecutor has placed reliance on the D.B. Judgment of the Principal Seat at Jodhpur in the matter of Om Prakash v. State of Rajasthan, 2008(1) Cr.L.R. (Raj.) 735 and also on the recent judgment of the Apex Court in the matter of Central Bureau of Investigation v. M.N. Sharma & Anr., Criminal Appeal No. 1128 of 2008, decided on 21.7.2008. 5. In the case of CBI v. Roshan Lal (supra) the challenge was to the order passed by a learned Single Judge of the Delhi High Court directing that the conviction of the respondent shall remain stayed during the pendency of the criminal appeal. Their Lordships of the Supreme Court referring to the earlier decisions of the Apex Court on the issue i.e. K.C. Sareen v. CBI, Chandigarh, (2001) 6 SCC 584 , State of Maharashtra v. Gajanan & Anr., (2003) 12 SCC 432 , Union of India v. Avtar Singh & Anr., (2003) 12 SCC 434 and State of Haryana v. Hasmat, (2004) 6 SCC 175 held that the order of the learned Single Judge directing the suspension/stay of the conviction cannot stand and the same was set aside.6. It is clear from the judgments of the Apex Court in the cases of Ram Narang v. Ramesh Narang & Ors., (1995) 2 SCC 515 , K.C. Sareen v. C.B.I. Chandigarh (supra) and State of Punjab v. Deepak Mattu, 2008 Cri.L.J. 322 that judgment of conviction can be suspended/stayed by revisional Court or by the appellate Court as the case may be but it cannot be done in routine manner or only on the ground of preferring appeal or on the ground that sentence has been suspended by the appellate Court. It was also held that though the power to suspend an order of conviction, apart from the order of sentence, is not alien to Section 389(1) of the Code, its exercise should be limited to very exceptional cases. It was also held that though the power to suspend an order of conviction, apart from the order of sentence, is not alien to Section 389(1) of the Code, its exercise should be limited to very exceptional cases. it was then held that merely because the convicted person had filed an appeal to challenge his conviction the Court should not suspend the operation of the order of conviction. The Court has the duty to look at all aspects including the ramifications of keeping such conviction in abeyance. It is in the light of the above legal position, the Court should examine what should be the position when a public servant is convicted.7. For suspension of conviction there must exists some special reason and that while deciding a petition under Section 482 Cr.P.C. the Court is not required to work as an appellate Court and to go into the merits and demerits of the appeal and simply the petitioner would loose his job, conviction cannot be suspended moreso looking to the gravity of the offence alleged to have been committed by the accused. Looking to the settled legal proposition for seeking stay of conviction the petitioner is required to show special reasons and simply the natural consequence of conviction cannot be termed by the Court as 'special reasons'. If the service rules have been framed for taking action against the convict then it is also a natural consequence of conviction which empowers the employer to take action against the convict. Legislature wisdom framed the rule to keep the convict out of job consciously, conscious of the fact that convict may challenge his conviction by preferring appeal or revision as the case may be and the appellate or revisional Court may suspend the conviction, yet has framed the rule that action against employee can be taken on employee's conviction irrespective of the fact whether the conviction is subjudice before the appellate Court. Of course a discretion has been given to the Court to suspend the conviction so that in a fit case and where special reasons exist the Court can suspend the conviction. So far as other reasons given for suspension of conviction by the petitioner in the present case are concerned, they are not sustainable at all. No material facts have been pointed out by the petitioner in the present petition which can lead the Court to grant stay of conviction. So far as other reasons given for suspension of conviction by the petitioner in the present case are concerned, they are not sustainable at all. No material facts have been pointed out by the petitioner in the present petition which can lead the Court to grant stay of conviction. The observation of the appellate Court that there is no provision to grant stay on conviction is not correct one because under Section 389 Cr.P.C. sentence as well as conviction can be suspended but conviction can be suspended only when there are special reasons. However, in the facts and circumstances of the case the appellate Court has neither acted illegally or abused the process of law while refusing suspension of conviction and no interference is required to be called for in the impugned order.8. Consequently, this misc. petition fails and is, hereby dismissed. Petition dismissed. *******