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2009 DIGILAW 599 (KER)

Peeru Muhammed v. The State Of Kerala

2009-07-06

M.SASIDHARAN NAMBIAR

body2009
Judgment : Petitioner is the appellant in Crl.A.No. 377/2009 on the file of Additional Sessions Court-I, Thiruvananthapuram. Petitioner was convicted for offences under Sections 323 and 341 of Indian Penal Code, which is challenged in the criminal appeal. Crl.M.P.No.1575/2009 was filed to suspend the conviction contending that petitioner, being a Police Constable, is liable to be removed from service unless the conviction is suspended. By order dated 25.6.2009 learned Additional Sessions Judge dismissed the petition holding that there is no provision for suspending the conviction and under Section 389 of Code of Criminal Procedure, only the sentence could be suspended. This petition is filed to quash the order dated 25.6.2009 and to grant suspension of the conviction. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. The argument of the learned counsel is that learned Additional Sessions Judge did not correctly appreciate the scope of Section 389 of Code of Criminal Procedure as declared by the three Judge Bench of the Apex Court in Rama Narang v. Ramesh Narang ((1995) 2 SCC 513). This decision was followed in Navjot Singh Sidhu v. State of Punjab (AIR 2007 SC 1003) and therefore, learned Additional Sessions Judge was not justified in dismissing the petition for the reason that there is no provision for suspending the conviction. Learned counsel also argued that under sub-section (2) of Section 389, the power is available to this Court also and therefore, conviction is to be suspended. 4. Section 389(1) provides that pending an appeal by a convicted person, appellate court may order that execution of the sentence or order appealed against be suspended and if he is in confinement, he be released on bail or on his own bond. The Apex Court in Rama Narang's case (supra) held that power under sub-section (1) of Section 389 is not only to suspend the sentence but extends to suspension of order of conviction also. But stay of conviction is not the rule, but an exception to be resorted to in rare cases depending upon the facts of the particular case. The legal position is that appellate court can suspend or grant stay of order of conviction. But the person seeking stay of conviction should specifically draw the attention of the appellate court to the consequences that may arise if the conviction is not stayed. The legal position is that appellate court can suspend or grant stay of order of conviction. But the person seeking stay of conviction should specifically draw the attention of the appellate court to the consequences that may arise if the conviction is not stayed. Unless the attention of the court is drawn to the specific consequences that would follow on account of the conviction, the person convicted cannot obtain an order of stay of conviction. Grant of stay of conviction can be resorted to only in rare cases depending upon the special facts of the case. 5. Order dated 25.6.2009 shows that petition was dismissed for the sole reason that there is no provision for suspending the conviction. In the light of the law laid by the Apex court, as stated above, learned Additional Sessions Judge has powers under subsection (1) of Section 389 to stay the conviction also, though it is only in rare cases stay of conviction could be ordered. As learned Additional Sessions Judge did not consider the question whether circumstances of the case warrant stay of order of conviction, order dated 25.6.2009 is set aside and Crl.M.P.No.1575/2009 is remitted to Additional Sessions Court-I, Thiruvananthapuram for fresh disposal in accordance with law, in the light of the decisions referred to above, without any delay. Petition is disposed.