Research › Search › Judgment

Orissa High Court · body

2013 DIGILAW 86 (ORI)

Bedadyuti Samantaray v. State

2013-04-03

B.K.NAYAK

body2013
ORDER 03.04.2013 - Heard Mr. S.P. Mishra, learned Senior Advocate for the appellant-petitioner and Mr. Kanungo, learned Additional Standing Counsel. 2. This is an application under Section 389 (1) of the Cr. P.C. filed by the appellant-petitioner for suspension of the conviction and sentence of the petitioner as recorded by the learned Additional Sessions Judge-cum-Special Judge, Jeypore in Criminal Trial No.10/62 of 2010. 3. The petitioner was tried in the aforesaid case for charges under Sections 498-A/304-B/306 of the I.P.C. and Section 4 of the D.P. Act for causing dowry death of his wife. By the impugned judgment dated 26.02.2013, the Court below has convicted the appellant-petitioner for the said charges and sentenced him to undergo R.I. for eight years and to pay a fine of Rs.10,000/-, in default to undergo R.I. for six months' under Section 304-B of the I.P.C., R.I. for five years and to pay a fine of Rs.10,000/- in default to undergo R.I. for six months under Section 306 of the I.P.C., R.I. for one year and to pay a fine of Rs.5,000/- in default to undergo R.I. for three months under Section 498-A of the I.P.C. and R.I. for two months under Section 4 of the D.P. Act. All the substantive sentences have been directed to run concurrently. 4. It is stated by the learned counsel for the petitioner that there is no acceptable evidence on record for convicting the appellant for the offences as aforesaid and that the appellant-petitioner has fair chance of success in the criminal appeal. It is also stated that the petitioner, who is a Government Servant and is working as a Clerk in Geological Survey Department at Koraput was on bail during trial and since the date of pronouncement of the judgment by the trial Court, he has been taken to jail custody. It is also stated that in view of the conviction of the petitioner for the offences as aforesaid, the authorities of the Geological Survey Department are taking steps to terminate him from service. It is the submission of the learned counsel for the petitioner' that unless the conviction and sentence of the petitioner is stayed/suspended, he will be terminated from service, which would cause grave injustice and hardship to the petitioner. It is the submission of the learned counsel for the petitioner' that unless the conviction and sentence of the petitioner is stayed/suspended, he will be terminated from service, which would cause grave injustice and hardship to the petitioner. It is also submission that since the alleged act and conduct of the petitioner that led to his conviction will have no adverse impact on his service environment, it is a fit case where the conviction and sentence imposed on the petitioner should be stayed. Learned counsel for the appellant-petitioner has relied upon the decision of the apex Court reported in (2007) 2 SCC-574 : Navjot Singh Sidhu v. State of Punjab and another and contended that the appellate Court can suspend an order of conviction where the convict specifically establishes the consequences that may follow if the operation of the order is not stayed. The learned Additional Standing Counsel, on the other hand, submits that since the petitioner has been convicted for serious offences like dowry death and other allied offences, his conviction and sentence should not be stayed. 5. The apex Court in the case of State of Maharashtra through C.B.I. Anti Corruption Branch, Mumbai v. Balakrishna Dattatrya Kumbar : (2012) 53 OCR (SC) 1233 after taking into consideration all its previous decisions including the decision cited by the learned counsel for the petitioner, observed as follows in paragraphs 6 and 10 : "6. In Rama Narang v. Ramesh Narang and others., (1995) 2 SCC 513 , this Court dealt with the said issue elaborately and held that if, in a befitting case, the High Court feels satisfied that the order of conviction needs to be suspended, or stayed, so that the convicted person does not have to suffer from a certain disqualification, provided for by some other statute, it may exercise its power in this regard because otherwise, the damage done cannot be undone. However, while granting such stay of conviction, the Court must examine all the pros and cons and then, only if it feels satisfied that a case has in fact been made out for grant of such an order, it may proceed to do so and even while doing so, it may, if it so consider it appropriate, impose such conditions as are deemed appropriate, to protect the interests of the other parties. Further, it is the duty of the applicant to specifically invite the attention of the appellate Court as regards the consequences, which are likely to follow, upon grant of such stay, so as to enable it to apply its mind fully to the issue, since under Section 389 (1), Cr. P.C., the Court is under an obligation to support its order in a manner provided therein, the same being, for the reasons to be recorded by it in writing. 10. In Ravikant S. Patil v. Savabhouma S. Bagali, (2007) 1 SCC 673 , this Court held as under :- "It deserves to be clarified that an order granting stay of conviction is not the rule but is an exception to be restored to in rare cases depending upon the facts of a case. Where the execution of the sentence is stayed, the conviction continues to operate. But where conviction itself is stayed, the effect is that the conviction will not be operative from the date of stay. An order of stay, of course, does not render the conviction non-existent, but only non operative........ All these decisions, while recognizing the power to stay conviction, have cautioned and clarified that such power should be exercised only in exceptional circumstances where failure to stay the conviction, would lead to injustice and irreversible consequences." 6. In summing up, the apex Court in paragraph-12 of the judgment in the case of Balakrishna Dattatrya Kumbhar (supra) observed as follows: "12. Thus, in view of the aforesaid discussion, a clear picture "emerges to the effect that, the Appellate Court in an exceptional case, may put the conviction in abeyance along with the sentence, but such power must be exercised with great circumspection and caution, for the purpose of which, the applicant must satisfy the Court as regards the evil that is likely to befall him, if the said conviction is not suspended. The Court has to consider all the facts as are pleaded by the applicant, in a judicious manner and examined whether the facts and circumstances involved in the case are such, that they warrant such a course of action by it. The Court additionally, must record in writing, its reasons for granting such relief. Relief of staying the order of conviction cannot be granted only on the ground that an employee may lose his job, if the same is not done." 7. The Court additionally, must record in writing, its reasons for granting such relief. Relief of staying the order of conviction cannot be granted only on the ground that an employee may lose his job, if the same is not done." 7. The proposition that emerges from the decisions of the apex Court is that the power to stay conviction in terms of Section 389 (1), Cr. P.C. should be exercised only in exceptional circumstances where failure to stay the conviction would lead to injustice and irreversible consequences. 8. During course of hearing, learned counsel for the petitioner has brought to the notice of this Court Rules 15 and 16 of the Orissa Civil Services (Classification, Control & Appeal) Rules, 1962 which provide for procedure of framing definite charges and giving the delinquent opportunity of hearing in an enquiry for any misconduct of a delinquent government servant for the purpose of imposing punishment on him. However, in line with the 2nd proviso to Clause (2) of Article 311 of the Constitution of India, Rule 18 of the Orissa Civil Services (Classification, Control & Appeal) Rules, 1962 inter alia provides that notwithstanding anything contained in Rules, 15, 16 and 17 of the said Rules, where a penalty is imposed on a Government Servant on the ground of conduct which has led to his conviction on a criminal charge, the disciplinary authority may consider the circumstances of the case and pass such order as deemed fit. There is no denial of the fact that on the basis of conviction of a government servant in a criminal charge, the disciplinary authority can terminate the service of the government servant in terms of Rule 18 of the Orissa Civil Services (Classification, Control & Appeal) Rules, 1962 ... read with the second proviso of Clause (2) of Article 311 of the Constitution of India. It is, therefore, clear that in view of the conviction of the petitioner by the present impugned judgment, he runs the risk of termination of his service without any inquiry and without being afforded any opportunity of hearing. By no means the petitioner will be able to avoid this evil when his employer/the disciplinary/authority wishes to proceed in the manner. 9. By no means the petitioner will be able to avoid this evil when his employer/the disciplinary/authority wishes to proceed in the manner. 9. On going through the impugned judgment and the copy of the depositions of the prosecution witnesses, it is found that admittedly the deceased-wife of the petitioner was working as an A.N.M. at Aramanda Malkhanagiri Centre where she was staying in a rented house whereas the petitioner, who is working as a Clerk in the Geological Survey Department was staying in his house at Koraput and that the deceased committed suicide inside his rented house at her work place by bolting the door from inside while the petitioner was at Koraput. On going through the evidence, this Court is of the prima facie view that the petitioner has strong arguable points in his favour and a fair chance of success in the appeal. There is little chance of the appeal being taken up for hearing in near future as large number of criminal appeals of more than 15 to 20 years old are still pending. In case, the order of conviction and sentence is not stayed, the petitioner would be terminated from service which will lead to injustice and irreversible consequence. On the other hand, continuance of the petitioner in his service may not have any adverse or deliberating impact so far as his office is concerned. In the aforesaid facts and circumstances, I am of the view that it is a fit case where the conviction and sentence of the petitioner should be suspended. Accordingly the order of conviction and sentence of the petitioner imposed by the impugned judgment is stayed pending disposal of the criminal appeal. The misc. case is disposed of. Misc. Case disposed of.