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2010 DIGILAW 915 (RAJ)

OM PRAKASH v. STATE OF RAJASTHAN

2010-04-26

MAHESH BHAGWATI

body2010
BHAGWATI,J. ( 1 ) BY way of this application filed under Section 374 read with Section 389 of Cr. P. C, the accused appellants Om Prakash and yadram Yadav have implored to stay the finding of conviction awarded to them by the learned trial Court vide impugned judgment dated 28th April, 2009 till the disposal of the appeal. ( 2 ) HEARD learned counsel for the accused appellants as also the learned pp appearing for the State and carefully perused the impugned judgment and the relevant provisions of law. ( 3 ) LEARNED counsel for the appellants canvassed that both the accused appellants are public servants. The appellant Om Prakash is an employee of rajasthan State Road Transport Corporation and the second appellant Yadram yadav is a school teacher. Appellant Om Prakash, pursuant to conviction vide impugned judgment, has been dismissed from service, whereas the appellant yadram Yadav has been placed under suspension. The conviction of these appellants in the offence under Section 308 of India Penal Code has become disqualification, hence in the interest of justice, the conviction awarded to the appellants be stayed, so that they may not be put to lose their employment and exposed to untold hardship and starvation. In support of his arguments, the learned counsel has cited two judgments passed in the case of Navjot singh Sidhu vs. State of Punjab and Anr. reported in (2007) 2 SCC 574 = RLW 2007 (3) SC 2264 and Kanhaiya vs. The State of Rajasthan reported in 2001 (3)WLC Page 411. ( 4 ) E contra, learned PP has opposed the stay of conviction and contended that the provisions of sub-section (1) of Section 389 of Cr. P. C. do not posit the stay of conviction and submits that the application deserves to be dismissed outrightly. ( 5 ) HAVING reflected over the submissions made at the bar and carefully scanned the impugned judgment and relevant provisions of law, it is noticed that the accused appellants along-with 12 co-accused persons were indicted initially for the offences under Sections 148, 323 and 307 readwith Section 149 of Indian Penal Code. After conclusion of trial, the accused appellants along-with other co-accused persons were convicted for the offence under Section 308 read with Section 149, 148 and 323 of Indian Penal Code. They have been sentenced to simple imprisonment for seven years together with a fine of Rs. After conclusion of trial, the accused appellants along-with other co-accused persons were convicted for the offence under Section 308 read with Section 149, 148 and 323 of Indian Penal Code. They have been sentenced to simple imprisonment for seven years together with a fine of Rs. 10,000/-; in default of payment of fine, to suffer further simple imprisonment of one year. Section 389 (1) of Crpc envisages thus: "389. Suspension of sentence pending the appeal; release of appellant on bail- (l) 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: ( 6 ) SECTION 389 of Crpc postulates that pending the appeal, the sentence may be suspended. Question, whether conviction itself may be suspended, has been raised often before the Courts. ( 7 ) ONE line of the argument is that suspension of conviction is covered by the expression "order appealed against" in sub-section (1) of Section 389 of crpc. Another argument in favour of the power to suspend the conviction is that the expression "order appealed against" should be construed liberally to include suspension of conviction in it. The question with regard to suspension of conviction emerged before the Hon'ble Apex Court many a times. ( 8 ) IN the case of Rama Narang vs. Ramesh Narang reported in (1995) 2 scc 513 , the three Judges Bench of the Hon'ble Apex Court observed as under: "under the provisions of the Code to which we have already referred there are two stages in a criminal trial before a Sessions Court, the stage up to the recording of a conviction and the stage post-conviction up to the imposition of sentence. A judgment becomes complete after both these stages are covered under Section 374 (2) of the Code any person convicted on a trial held by a Sessions Judge or an Additional sessions Judge may appeal to the High Court. Section 384 provides for summary dismissal of appeal if the Appellate Court does not find sufficient ground to entertain the appeal. If, however, the appeal is not summarily dismissed, the Court must cause notice to issue as to the time and place at which such appeal will be heard. Section 384 provides for summary dismissal of appeal if the Appellate Court does not find sufficient ground to entertain the appeal. If, however, the appeal is not summarily dismissed, the Court must cause notice to issue as to the time and place at which such appeal will be heard. Section 389 (1)empowers the Appellate Court to order that the execution of 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. Does order' in Section 389 (1)mean order of conviction or an order similar to the one under Section 357 or Section 360 of the Code? Obviously 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. Since the order of conviction does not on mere filing of an appeal disappear it is difficult to accept the submission that Section 267 of the Companies Act must be read to apply only to a " final' order of conviction. Such an interpretation may defeat the very object and purpose for which it came to be enacted. It is, therefore, fallacious to contend that on the admission of the appeal by the Delhi High Court the order of conviction had ceased to exist. If that be so why seek a stay or suspension of the order?" ( 9 ) IN the case of Navjot Singh Sidhu vs. State of Punjab and Another (supra), their Lordships of the Hon'ble Apex Court observed as under: "section 389 (1) Crpc confers power not only to suspend the execution of sentence and to grant bail but also to suspend the operation of the order appealed against which means the order of conviction. Thus an 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. Thus an 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. Further, grant of stay of conviction can be resorted to in rare cases depending upon the special facts of the case. " ( 10 ) THE crux of above observations of the Hon'ble Apex Court is that the order of conviction by itself is not capable of execution under the Code. Thus, the suspension of conviction is not a rule but is an exception in rare situation of a case. It is the order of sentence or an order of 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. Had there been an intent of legislature to suspend the judgment of conviction, the word "conviction" also would have been incorporated in sub-section (1) of section 389 of Cr. P. C. along-with the words "sentence or order appealed against". The Hon'ble Apex Court has unequivocally explained that the word "order" relates to infact "awarding compensation or imposing fine or release on probation. " This "order" does not relate to the judgment of conviction. However, in the case of Navjot Singh Sidhu vs. State of Punjab and Another (supra), the Hon'ble Apex Court observed that Section 389 (1) of Cr. P. C. confers powers not only to suspend the sentence and to grant bail, but also to suspend the operation of the order appealed against, which means the order of conviction. Thus, appellate court can suspend or grant stay on order of conviction, but the persons 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. 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. Further, the grant of stay of conviction can be resorted to in rare cases depending upon the special facts of the case. ( 11 ) IN the case of Rama Narang vs. Ramesh Narang (supra) also, the hon'ble Apex Court observed that in certain situations, the order of conviction can be executable in the sence it may incur a disqualification. ( 12 ) A close look at Section 389 (1) demonstrates that the legislature does not provide suspension of conviction, but unequivocally postulates the suspension of sentence and order appealed against. The order appealed against undeniably does not mean the judgment of conviction. However, from the close scrutiny of the aforesaid judgments delivered by the Hon'ble Apex court, it may be deduced that if the judgment of conviction becomes disqualification, it may be ceased to operate and the suspension of conviction should be resorted to in rare case depending upon special facts of the case. Further the appellant is also required to draw the attention of the appellate court to the attention of the appellate Court to the specific consequences that may arise if the conviction is not suspended. ( 13 ) IN the instant appeal, the accused appellants along-with other 12 accused persons have been convicted in the offence under Section 308 read with Section 149 of IPC and each accused has been sentenced to 7 years' simple imprisonment together with fine. Keeping in view the gravity of the offence where 14 persons constituted an unlawful assembly and attempted to cause culpable homicide not amounting to murder, it cannot be said that the case of the appellants fall in the category of a rare case. It is also found that pursuant to the impugned judgment one appellant Om Prakash has already been dismissed from service and another appellant Yadram Yadav has been placed under suspension by the District Education Officer. In this situation, suspension of conviction will be of no avail as the consequence pursuant to conviction of the appellants has already arisen. It is also found that pursuant to the impugned judgment one appellant Om Prakash has already been dismissed from service and another appellant Yadram Yadav has been placed under suspension by the District Education Officer. In this situation, suspension of conviction will be of no avail as the consequence pursuant to conviction of the appellants has already arisen. ( 14 ) IN view of above, I do not find any merit in the application filed by the aforesaid accused appellants and the application with regard to suspension of conviction deserves to be dismissed, which stands dismissed accordingly.