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2012 DIGILAW 322 (PAT)

Rabindra Pandit v. State Of Bihar

2012-02-24

ASHWANI KUMAR SINGH, NAVANITI PRASAD SINGH

body2012
ORDER (Per: HONOURABLE MR JUSTICE NAVANITI PRASAD SINGH) I A No 269 of 2012 This application has been filed by Jhari Yadav @ Akhilesh Yadav, son of late Kali Prasad Yadav. By this application, this applicant, who is appellant No 2 in this appeal, has prayed for suspension of conviction in terms of Section 389(1) of Criminal Procedure Code (CrPC). 2. A supplementary affidavit to the interlocutory application has been filed in which it is stated that the father of this applicant, namely, Kali Prasad Yadav was working as a Constable in Special Central Jail at Bhagalpur and died in harness in the year, 2007. This applicant then made an application for compassionate appointment immediately thereafter being the eldest son of late Kali Prasad Yadav and being a Matriculate. While his application for being appointed on compassionate ground was pending, on 04.07.2009, he alleges that he was falsely implicated in a criminal case in which ultimately in Sessions Trial Case No 696 of 2010 by judgment dated 19.11.2011 and sentencing order dated 21.11.2011, he, alongwith others, has been convicted for an offence punishable under Sections 302/34 of Indian Penal Code (IPC) and Section 27 of the Arms Act. The present appeal is from the said conviction and sentence of life imprisonment. When the appeal was admitted by this Court, this Court, vide order dated 25.11.2011, released the appellants that is Rabindra Pandit and this applicant Jhari Yadav @ Akhilesh Yadav on bail. It is submitted that now the authorities are to grant compassionate appointment to this applicant and if the sentence is not stayed, it would cause him irreparable injury as he is the eldest member in the family and would be the only bread earner. If he is only to get this employment, the entire family will suffer irreparable loss and injury. It is stated that his younger brother Pramod Yadav is not a Matriculate and moreover, in 2008, when the application was made, he had just become a major. He is, thus, ineligible to be considered for appointment. The rest of the boys are minors. It is, therefore, submitted that if the conviction is not stayed then the whole family would suffer irreparable loss. 3. We have considered the matter at length. In our view, Section 389 (1) of CrPC contemplates two things, one stay of conviction and the other stay of sentence. The rest of the boys are minors. It is, therefore, submitted that if the conviction is not stayed then the whole family would suffer irreparable loss. 3. We have considered the matter at length. In our view, Section 389 (1) of CrPC contemplates two things, one stay of conviction and the other stay of sentence. The effects of the two are different. Neither of the two can be demanded by the appellant, who has been found guilty, as a matter of right. It is upon the discretion of the Court based upon the facts and circumstances of the case that the stay is to be granted. The stay of sentence inures to the benefit of the appellant by way of bail and the stay of conviction inures to the benefit of the appellant by removing the stain of conviction so long as the stay operates. If sentence alone is stayed that is bail granted, a person would still suffer disabilities of conviction. One of those disabilities would be that he is not entitled to any Government employment. That is the situation here. 4. Various judgments have been referred to to persuade us to stay the conviction. We have perused the same. One of the judgments is in the case of K C Sareen –Versus- CBI, Chandigarh (2001) 6 Supreme Court Cases 584. In this case, the petitioner was a public servant and had been convicted on corruption charges. The consequence of the conviction was that he was dismissed from service. He prayed in terms of Section 389 (1), CrPC for stay of conviction inasmuch as he was suffering from the dismissal of his service. The High Court and the Apex Court both rejected the plea of stay on the ground that the public policy is to keep a person out of employment so long as he suffers conviction. No irreparable injury was to be caused. The Court held so because if the appeal was allowed and his conviction was set aside, he would have been reinstated with all benefits because his dismissal was based only upon his conviction. No irreparable injury was to be caused. The Court held so because if the appeal was allowed and his conviction was set aside, he would have been reinstated with all benefits because his dismissal was based only upon his conviction. Then there is another judgment on the same line in the case of State of T N –Versus- A Jaganathan (1996) 5 Supreme Court Cases 329 in which the High Court had stayed the conviction but was reversed in appeal by the Apex Court on the ground that a person, who had been convicted, ought not to be permitted to continue in service so long as his conviction stood. Again, the reasoning is that, if upon appeal being allowed and conviction being set aside, he would be reinstated with all consequences. We may then notice the case of Navjot Singh Sidhu –Versus- State of Punjab and Another since reported in AIR 2007 Supreme Court 1003. In that case, the Apex Court granted stay. The Apex Court noted that upon conviction, an appeal had been preferred which was pending. Shri Sidhu was an elected Member of Parliament. In view of the provisions of the Representation of People Act, conviction, having come about during his tenure as a Member of Parliament, he did not suffer from disability, but being public spirited person, he wanted a fresh mandate from the electorates and, therefore, decided to resign from the Parliament. Supreme Court, thus, noticing that he does not suffer from disability but because he wanted to contest the election again to get people’s mandate, it was a fit case in which the conviction ought to be stayed. We then have the case of Sanjay Dutt –Versus- State of Maharashtra through CBI, Bombay since reported in (2009) 5 Supreme Court Case 787. In that case, case of Sidhu was pressed into service but not accepted by the Court. There also the plea taken by Shri Sanjay Dutt was that he wanted to contest the parliamentary elections. The Apex Court noted that he had suffered conviction in respect of a very serious offence punishable under the provisions of TADA. While suffering disability, he had chosen to fight the parliamentary elections. That was taken to be no sufficient ground to stay the sentence. 5. The Apex Court noted that he had suffered conviction in respect of a very serious offence punishable under the provisions of TADA. While suffering disability, he had chosen to fight the parliamentary elections. That was taken to be no sufficient ground to stay the sentence. 5. In our view, the true test would be whether subject to the facts and circumstances of the criminal case as obtaining against the person, if the conviction is not stayed would the person suffer irreparable loss and injury? If the person does not suffer irreparable loss and injury then normally the conviction is not to be stayed. 6. Coming to the facts of this case. Firstly, even the trial Court has found this applicant to be guilty under Section 302 with the aid of Section 34 of IPC only. There are prosecution witnesses who deposed that he was named on suspicion. There is no overt act alleged or established against him. He stated on oath that he has no other criminal antecedents. Noticing this, when the appeal was admitted, he was granted bail by this Court in terms suspending the sentence. Now he states that being the eldest member in the family and the only member who is entitled to compassionate appointment, if conviction is not stayed, he will not get the compassionate appointment and not only he but his whole family which includes minor brothers and sister, apart from widow mother, would suffer irreparable injury. 7. Upon consideration of the aforesaid facts and circumstances, we are of the considered opinion that it is a fit case to save the applicant/appellant from irreparable loss or injury, the conviction be stayed. This would of course be subject to the condition that this appellant/applicant makes a full disclosure of these facts before the appropriate authority who are to consider his compassionate appointment and such appointment, if is to be made, would be made subject to the result of this criminal appeal in relation to the appellant/applicant. 8. I A No 269 of 2012 stands disposed of.