JUDGMENT 1. - This is an application for suspension of order of conviction dated 24th August, 2007 passed by Sessions Judge, Jodhpur confirming the conviction and sentence passed by Judicial Magistrate, Jodhpur vide order dated 10th April, 2006. 2. The present applicant is an accused in Criminal Case No. 206/1999, wherein the Judicial Magistrate, Jodhpur vide order dated 10th April, 2006 convicted the applicant under Section 51 of the Wildlife Protection Act, 1972 and sentenced him to 5 years' simple imprisonment along with fine of Rs. 25,000/-. The appellant court confirmed the order of the trial court vide an order dated 24th August, 2007. Thereafter, the applicant filed S.B. Criminal Revision Petition No. 905/2007 before the High Court under Section 397 read with Section 401 of the Cr.P.C. The said revision was admitted vide order dated 31st August, 2007. Vide a separate order dated 31st August, 2007, the High Court suspended the substantive sentence of the applicant and granted bail to him under Section 391(1) of the Cr.P.C. However, while suspending the sentence, the High Court imposed certain restrictions. One of the restriction was that the applicant will not leave the country without prior permission of the Court. Thereafter, on an application moved by the applicant, the said condition was deleted vide order dated 21st February, 2011.The High Court permitted the applicant to travel abroad during the pendency of the said revision petition . Meanwhile, the Visa of the applicant for travelling to United Kingdom was rejected by UK Boarder Agency Home Office on the ground that that applicant was under the criteria set out in paragraph 320(2) of HC395. It is in these circumstances that the present application for suspension of order of conviction passed by the Judicial Magistrate, Jodhpur has been moved. 3. Reply is filed by the State opposing the prayer of the applicant. Mr.R.L.Jangid, learned Additional Advocate General and Mr.Mahipal Bishnoi appearing for the respondent-State while vehemently opposing the prayer submitted that the application under Section 389(1) of the Cr.P.C. is not maintainable. It was stated that under Section 389(1) of the Cr.P.C., the appellate court is empowered to suspend the execution of the sentence of a convicted person. Mr.R.L.Jangid, learned Additional Advocate General and Mr.Mahipal Bishnoi appearing for the respondent-State while vehemently opposing the prayer submitted that the application under Section 389(1) of the Cr.P.C. is not maintainable. It was stated that under Section 389(1) of the Cr.P.C., the appellate court is empowered to suspend the execution of the sentence of a convicted person. Thus, the said application is maintainable before the appellate court, whereas, the application for suspension of conviction awarded to the appellant by both the courts below has been filed in the revision petition pending under Section 397 of the Cr.P.C. It was stated that stage for moving an application under Section 389(1) of the Cr.P.C. is over. This is not an appellate court but a revisional court where no application under Section 389 of the Cr.P.C. is maintainable. Secondly, two more criminal cases are pending against the applicant before the competent court of jurisdiction at Jodhpur and one more case pertaining to rash and negligent driving is pending consideration before the competent court of jurisdiction at Mumbai. Thus, he was not entitled to the relief in view of his conduct. 4. Learned Additional Advocate General further contended that the facts of the case of Navjot Singh Sidhu v. State of Punjab and Another, reported in (2007)2 SCC 547 , are not applicable in the facts of the present case and are distinguishable. It was stated that the said power can be exercised only in a rarest of rare case depending upon the facts of the case. In the case of Navjot Singh Sidhu, the applicant was sitting Member of Parliament and he had chosen a moral path by resigning immediately, whereas, the averments in the present application that it will cause irreparable loss and injury both professional and socially, if Salman Khan is not allowed to discharge his professional commitments does not bring him under the preview of rarest of rare case. Reliance was placed on the judgment of Hon'ble Supreme Court rendered in the case of State of Maharasthra through CBI, Anti Corruption Branch, Mumbai v. Balakrishna Dattatrya Kumbhar, (Criminal Appeal No. 1648 of 2012), decided on 15th October, 2012. 5. Learned counsel for the parties were heard at length. 6. The applicant Salman Khan is convicted under Section 51 of the Wildlife Protection Act, 1972 by an order of Judicial Magistrate, Jodhpur. 5. Learned counsel for the parties were heard at length. 6. The applicant Salman Khan is convicted under Section 51 of the Wildlife Protection Act, 1972 by an order of Judicial Magistrate, Jodhpur. The appeal against the said order was dismissed on 24th August, 2007. The revision petition against the order of conviction dated 10th April, 2006 was admitted by this High Court on 31st August, 2007 by observing as under:- "I have given my thoughtful consideration to the submissions made by the learned counsel for the parties. In my view, the instant revision petition involves certain questions of law and requires determination thereon. More particularly on the point of applicability of Section 33 of the Evidence Act and also the finding based on interpretation of the order of this Court, which is contrary to the facts on record and, therefore, it is a fit case to admit the revision petition for hearing finally." 7. Therefore, the argument of learned counsel for the State that no order staying the conviction can be passed in revision cannot be sustained. Section 397 of the Cr.P.C. reads as under:- 397. Calling for records to exercise powers of revision. (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, -recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation.-All Magistrates whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub- section and of section 398. (2) The powers of revision conferred by subsection (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (2) The powers of revision conferred by subsection (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them." 8. Section 397 confers power not only to suspend the execution of the sentence but also of any "order". Meaning of the word "order" is the same as given in Section 389(1) of the Cr.P.C. Infact, Hon'ble the Apex Court in the case of Rama Narang v. Ramesh Narang Ors., reported in (1995) 2 SCC 513 came down heavily on the Division Bench of High Court of Bombay for holding that "the Delhi High Court could not have exercised jurisdiction under Section 482 of the Code if it was confronted with a situation of there being no other provision in the Code for staying the operation of the order of conviction." Meaning thereby that the power to stay the conviction can be exercised even under Section 482 of the Cr.P.C. Para 19 of the judgment of Rama Narang (supra) reads as under:- "We are, therefore, of the opinion that the Division Bench of the High Court of Bombay was not right in holding that the Delhi High Court could not have exercised jurisdiction under Section 482 of the Code if it was confronted with a situation of there being no other provision in the Code for staying the operation of the order of conviction. In a fit case if the High Court feels satisfied that the order of conviction needs to be suspended or stayed so that the convicted persons does not suffer from a certain disqualification provided for in any other statute, it may exercise the power because otherwise the damage done cannot be undone; the disqualification incurred by Section 267 of the Companies act and given effect to cannot be undone at a subsequent date if the conviction is set aside by the Appellate Court. But while granting a stay of suspension of the order of conviction the Court must examine the pros and cons and if it feels satisfied that a case is made out for grant of such an order, it may do so and in so doing it may, if it considers it appropriate, impose such conditions as are considered appropriate to protect the interest of the shareholders and the business of the company." 9. Moreover, Section 401 of the Cr.P.C. further empowers the revisional court to exercise power conferred on a court of appeal by various sections including Section 389 of the Cr.P.C. 10. The objection of the learned counsel for the State that the present application has been filed under Section 389(1) of the Cr.P.C. which is a provision to be invoked in a pending appeal, whereas, in the present case, it has been filed in a revision petition, is no doubt correct. However, wrong mentioning of a section cannot change the character of the application. This is evident from para 8 of the application, which is reproduced below:- "8. The Application is thus approaching this Hon'ble Court under Section 397 of the Code of Criminal Procedure, 1973, for suspending the order of conviction passed by the Judicial Magistrate, Jodhpur, vide order dated April 10, 2006 and confirmed by the Hon'ble Sessions Court by order dated August 24, 2007." 11. It is evident that the application was to be under Section 397 of the Cr.P.C. but inadvertently in the heading of the application, it is wrongly mentioned as 389(1) of the Cr.P.C. 12. The Hon'ble Apex Court in the case of P.K.Palanisamy v. N.Arumugham & Anr., reported in 2007(9) SCALE 197 held that mentioning of a wrong provision does not disentitle a person for relief, if entitled otherwise. The well settled provision of law is evident from para 13 of the said judgment reproduced as under:- "13. A contention has been raised that the applications filed by the appellant herein having regard to the decisions of the Madras High Court could not have been entertained which were filed under Section 148 of the Code. Section 148 of the Code is a general provision and Section 149 thereof is special. The first application should have been filed in terms of Section 149 of the code. Section 148 of the Code is a general provision and Section 149 thereof is special. The first application should have been filed in terms of Section 149 of the code. Once the court granted time for payment of deficit court fee within the period specified therefor, it would have been possible to extend the same by the court in exercise of its power under Section 148 of the Code. Only because a wrong provision was mentioned by the appellant, the same, in our opinion, by itself would not be a ground to hold that the application was not maintainable or that the order passed thereon would be a nullity. It is a well settled principle of law that mentioning of a wrong provision or non-mentioning of a provision does not invalidate an order if the court and/or statutory authority had the requisite jurisdiction therefor. In Ram Sunder Ram v. Union of India & Ors. 2007 (9) Scale 197 , it was held: ".....It appears that the competent authority has wrongly quoted Section 20 in the order of discharge whereas, in fact, the order of discharge has to be read having been passed under Section 22 of the Army Act. It is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law [see N. Mani v. Sangeetha Theatre and Ors. (2004) 12 SCC 278 ]. Thus, quoting of wrong provision of Section 20 in the order of discharge of the appellant by the competent authority does not take away the jurisdiction of the authority under Section 22 of the Army Act. Therefore, the order of discharge of the appellant from the army service cannot be vitiated on this sole ground as contended by the Learned Counsel for the appellant." In N. Mani v. Sangeetha Theatres & Ors. [ (2004) 12 SCC 278 ] , it is stated: "9. Therefore, the order of discharge of the appellant from the army service cannot be vitiated on this sole ground as contended by the Learned Counsel for the appellant." In N. Mani v. Sangeetha Theatres & Ors. [ (2004) 12 SCC 278 ] , it is stated: "9. It is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law." 13. In the case of Navjot Singh Sidhu (supra), the application was filed for staying the conviction after specifying the consequences, if the conviction was not stayed. In that case, the reason specified was that the same will incur disqualification for the applicant therein to contest the election. 14. The applicant herein, also, has not suppressed the purpose for which he is seeking the suspension of conviction. He has come to the court with clean hands and has very fairly pointed out that he had applied for UK High Commission for a Visa. The same was rejected by UK Border Agency Home Office on the ground that the applicant was under the Criteria set out in paragraph 320(2) of HC395, which states as follows:- "(b) if an applicant has been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years." 15. Thereafter, the applicant applied for administrative review against the refusal of entry clearance. The administrative review was also rejected on 20.8.2013 by holding as under:- "The British Deputy High Commission's Honorary Legal Advisers have reviewed all of the information put forward in this case and their advice is that from the evidence produced, the Indian courts have only suspended the execution of the 5 years sentence. On the basis of this legal advice, it is our view that a suspension of the execution of the sentence pending a final court hearing does not alter or affect the fact that you have been convicted of an offence and have been sentenced to 5 years imprisonment under Indian law. On the basis of this legal advice, it is our view that a suspension of the execution of the sentence pending a final court hearing does not alter or affect the fact that you have been convicted of an offence and have been sentenced to 5 years imprisonment under Indian law. As only the execution of the sentence has been suspended our initial decision to refuse your application was correct and in line with our Immigration Rules and guidance on criminal convictions. I therefore uphold the decision to refuse entry clearance under paragraph 320(2)(B) of HC395." 16. The same has, therefore, necessitated moving of the present application. In the present case, the sentence of the application was suspended till final disposal of the aforesaid revision. Thereafter, the High Court modified its earlier order and deleted the condition imposed on the applicant permitting him to travel abroad without seeking specific permission by the High Court each and every time when he is required to travel. However, in-spite of the permission granted to the applicant to travel abroad, his Visa was rejected by UK High Commission on the ground that he had been sentenced to undergo imprisonment for 4 years. The said disqualification has negated the permission granted by this Court to the applicant to travel abroad. Therefore, staying the order of conviction in the facts of the present case becomes all the more necessary. 17. With respect to the conduct of the applicant, suffice it to say that while granting permission to the applicant to travel abroad and not to apply this Court every time before undertaking a journey to foreign country during the pendency of the revision petition, the High Court took into consideration both his conduct and that the same was necessary in view of his profession by observing as under:- "In view of the facts and circumstances of the case, the contents raised before this Court and looking to the nature of profession of the petitioner and his compliance with the condition imposed on past 33 occasions as give out in the application, this Court is of the opinion that such condition imposed on the petitioner in the order dated 31.8.2007 suspending the sentence deserves to be modified at this stage because the final disposal of the revision petition itself is likely to take still more time." 18. Moreover, it is not disputed that the applicant has always complied with the condition imposed upon him. He is an actor. His profession requires him to travel Overseas. 19. The last argument of learned counsel for the State that the order of conviction should not be stayed in view of the judgment rendered in the case of State of Maharasthra through CBI Anti Corruption Branch, Mumbai (supra) does not help. The judgment rendered in the case of said case is not applicable to the facts of the present case. The same relates to conviction on charges of corruption. In such cases, it is neither in the interest of public and nor does propriety demand that a person convicted of charge of corruption should be put back in the department where he has either misused his position or indulged in malpractice. The same as been clarified by Hon'ble the Apex Court in para 23 of the judgment rendered in the case of Navjot Singh Sidhu (supra) as under:- 15. Lastly, Shri Dwivedi has submitted that in view of the law laid down in State of Tamil Nadu v. A. Jaganathan (1996) 5 SCC 329 and K.C. Sareen v. C.B.I., Chandigarh (2001) 6 SCC 584 the order of conviction passed against the appellant should not be suspended. The cases cited have no application to the facts of the present case as both of them related to conviction on charges of corruption and in that context it was observed that when conviction is on a corruption charge, it would be a sublime public policy that the convicted person is kept under disability of the conviction instead of keeping the sentence of imprisonment in abeyance till the disposal of the appeal. In such cases it is obvious that it would be highly improper to suspend the order of conviction of a public servant which would enable him to occupy the same office which he misused. This is not the case here." 20. The revision petition of the applicant was admitted vide a detailed order. The sentence awarded to the applicant was suspended. The order of suspension of sentence was modified and permission was granted to the applicant to travel abroad without seeking permission of the court each and every time. This is not the case here." 20. The revision petition of the applicant was admitted vide a detailed order. The sentence awarded to the applicant was suspended. The order of suspension of sentence was modified and permission was granted to the applicant to travel abroad without seeking permission of the court each and every time. The order of conviction is coming in his way to travel abroad which has resulted in negating the order granting him permission to go abroad. His profession requires him to travel abroad. He is not a public servant and nor has he been convicted for any corruption charges. It is not disputed that applicant has always abided by the conditions imposed by various courts. He has never absconded and has always made himself available as and when required by the court except when exempted. He has not violated any of the conditions imposed by any Court. 21. In view of the above, this Court is of the opinion that application moved by the applicant deserves to be allowed. 22. Accordingly, the present application for suspension of order of conviction is allowed and it is ordered that the order dated 10th April, 2006 passed by Judicial Magistrate, Jodhpur convicting the applicant under Section 51 of the Wildlife Protection Act, 1972 as well as the order of the Sessions Judge, dated 24th August, 2007, vide which, the conviction was upheld, will not be executed during the pendency of the revision petition.Application allowed. *******