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2014 DIGILAW 822 (RAJ)

Suresh Khandelwal v. State of Rajasthan

2014-03-31

PRASHANT KUMAR AGARWAL

body2014
Hon'ble AGARWAL, J.—Brief relevant facts for the disposal of this application for stay of conviction are that accused-applicant was convicted for the offence under Section 304 Part II IPC and sentenced to undergo rigorous imprisonment for three years and fine of Rs. 500/- and in default thereof to further suffer simple imprisonment for one month vide judgment and order dated 23.5.2013 passed in Sessions Case No. 8/2011 by Additional Sessions Judge No. 3, Jaipur District, Jaipur. Against the impugned judgment and order, the appellant filed S.B. Criminal Appeal No. 365/2013 before this Court and the sentence awarded by the trial Court was suspended by the Co-ordinate Bench vide order dated 29.5.2013 passed in S.B.Criminal Misc. Application for Suspension of Sentence No. 542/2013. In this case it has been found by the trial Court that the appellant inflicted injuries to the father of the complainant which resulted in his death. 2. The present application has been filed on the premises that one Smt. Pushpa Yadav filed an application before Managing Director, Rajasthan State Road Transport Corporation (for short "RSRTC"), Jaipur to the effect that the appellant has been convicted and sentenced in the aforesaid case and, therefore, departmental action may be taken against him. On the basis of the aforesaid application, a letter dated 12.7.2013 has been written by the Deputy Managing Director, (Administration), RSRTC, Jaipur to the Chief Manager, RSRTC Vaishali Nagar Aagar to take necessary action against the appellant. Now, the appellant apprehends that his services may be terminated on the ground of his conviction in the aforesaid case. 3. In support of the application, learned counsel for the appellant has raised the following grounds:- (1) This High Court in many identical cases has been pleased to stay the conviction of the accused and, therefore, on the ground of parity and in view of Article 14 of the Constitution of India it is in the interest of justice to stay the conviction of the appellant also. (2) Hon'ble Supreme Court in the case of Navjot Singh Sidhu vs. State of Punjab & Anr.: AIR 2007 SC 1003 = RLW 2007(3) SC 2264 was pleased to stay the conviction of the accused and the facts of the present case and of the aforesaid case are almost similar and, therefore, it is in the interest of justice to stay the conviction of the present appellant also. (3) Judicial notice can be taken of the fact that several criminal appeals are pending for hearing and there is no likelihood of their early hearing. The appeal filed by the appellant also unlikely to be heard in near future and, therefore, if the conviction is not stayed, the very purpose of filing of the appeal will be frustrated and he will suffer irreparable loss if his services are terminated. (4) If services of the appellant are terminated, he will be without any job and source of earning. The appellant will face acute problem to look after himself and members of his family without any source of livelihood. There is no other earning member in the family except the appellant. (5) The evidence available on record clearly shows that the appellant has been falsely implicated in the present case and there is every livelihood that his appeal will be allowed on merit. 4. In support of his submissions, learned counsel for the appellant relied upon the following decisions of the Hon'ble Supreme Court : Rama Narang vs. Ramesh Narang and Ors. reported in JT 1995(1) SC 515, Deputy Director of Collegiate Education (Administration), Madras vs. S. Nagoor Meera reported in AIR 1995 SC 1364 , Commissioner of Income-tax, Mumbai vs. Bhupeen Champak Lal Dalal & Anr. reported in AIR 2001 SC 1096 , Ravikant S.Patil vs. Sarvabhouma S. Bagali reported in JT 2006(10) SC 578 and Navjot Singh Sidhu vs. State of Punjab & Anr. reported in AIR 2007 SC 1003 = RLW 2007(3) SC 2264. 5. Apart from aforesaid decisions, learned counsel for the appellant also relied upon various orders passed by different Benches of this High Court from time to time staying the conviction of the respective accused-persons. 6. On the other hand, learned Public Prosecutor controverting the submissions made on behalf of the appellant mainly submitted that the application filed by the appellant is premature as no action has been taken till date by the concerned department to terminate his services or to take any other departmental action against him on the basis of conviction. It was also submitted that the relevant service rules provides that if an employee of the Corporation is convicted by a Court of law, his services are liable to be terminated. If service rules provides for termination of services, the accused-employee is liable to face the consequences of the conviction. 7. It was also submitted that the relevant service rules provides that if an employee of the Corporation is convicted by a Court of law, his services are liable to be terminated. If service rules provides for termination of services, the accused-employee is liable to face the consequences of the conviction. 7. I have considered the submissions made on behalf of the respective parties, perused the material made available on record as well as the relevant legal provisions and the case law. Hon'ble Supreme Court in the case of K.C. Sareen vs. CBI, Chandigarh: (2001) 6 SCC 584 , has held as under: "Power to suspend conviction should be exercised by the Appellate or Revisional Court in very exceptional cases having regard to all aspects including ramifications of such suspension. Merely because the convicted person files an appeal to challenge his conviction the court should not suspend the operation of the order of conviction. The court has a duty to look at all aspects including the ramifications of keeping such conviction in abeyance." The Hon'ble Supreme Court has also observed that: "It would be a sublime public policy that the convicted public servant is kept under disability of the conviction in spite of keeping the sentence of imprisonment in abeyance till the disposal of the appeal or revision." 8. In the leading case of Rama Narang vs. Ramesh Narang & Ors.: (1995) 2 SCC 513 , the bench of three Hon'ble Judges of Apex Court has held that:- "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. 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. What can be suspended under this provision is the execution of the sentence or the execution of the order. 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." The Hon'ble Supreme Court has further held that: "If the order of conviction is to result in some disqualification of the type mentioned in Section 267 of the Companies Act, a narrow meaning should not be given to Section 389(1) of the Code to bar the Court from granting an order staying operation of order of conviction in a fit case. In certain situations the order of conviction can be executable, in the sense, it may incur a disqualification as in the instant case. In such a case the power under Section 389(1) of the Code could be invoked." The Hon'ble Supreme Court has also observed that: "While granting a stay or 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 doing so it may, if it considers it appropriate implore such conditions as are considered appropriate." It was also observed that: "In a situation where the order of conviction may incur a disqualification, as in this case, the attention of the Appellate Court must be specifically invited to the consequence that is likely to fall to enable it to apply its mind to the issue since under Section 389(1) it is under an obligation to support its order for reasons to be recorded by it in writing. No one can be allowed to play hide and seek with the Court; he cannot suppress the precise purpose for which he seeks suspension of the conviction and obtain a general order of stay and then contend that the disqualification has ceased to operate." 9. No one can be allowed to play hide and seek with the Court; he cannot suppress the precise purpose for which he seeks suspension of the conviction and obtain a general order of stay and then contend that the disqualification has ceased to operate." 9. In the case of Sanjay Dutt vs. State of Maharashtra : JT 2009(4) SC 611, the Hon'ble Supreme Court has held that: "Law prohibits any person who has been convicted of any offence and sentenced to imprisonment for not less than two years from contesting the election and such person shall be disqualified for a further period of six years since his release. The power of the Court under Section 389 Cr.P.C. shall be exercised only under exceptional circumstances." 10. In this case although Hon'ble Supreme Court found many circumstances in favour of the applicant Shri Sanjay Dutt but even than the Court refused to suspend the conviction of the applicant on the premise that there is no exceptional circumstances for which the conviction may be suspended. 11. In the case of Navjot Singh Sidhu vs. State of Punjab & Anr.: AIR 2007 SC 1003 = RLW 2007(3) SC 2264, the Hon'ble Apex Court has held that: "The legal position is, therefore, clear that 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." 12. In that case, Hon'ble Supreme Court found that the case of the applicant Navjot Singh Sidhu is of exceptional category and thus, the conviction of the applicant was stayed. 13. In the case of State of Punjab vs. Deepak Mattu: 2008 Cri. L.J. 322, the Hon'ble Supreme Court has held that: "Possible delay in disposal of appeal and existence of arguable points not by itself be sufficient to grant suspension." 14. 13. In the case of State of Punjab vs. Deepak Mattu: 2008 Cri. L.J. 322, the Hon'ble Supreme Court has held that: "Possible delay in disposal of appeal and existence of arguable points not by itself be sufficient to grant suspension." 14. The Hon'ble Division Bench of this Court in the case of Om Prakash vs. State of Rajasthan : 2008 (1) Cr.L.R. (Raj.) 735, after relying upon various judgments of Hon'ble Supreme Court has held that: "For seeking suspension of conviction, the applicant is required to show special reasons and in our opinion the natural consequence of conviction cannot be a special reason. Natural consequence of conviction is to face the sentence, if not suspended by the order of the Court and to face the lawful consequence because of conviction. If the service rules have been framed for taking action against the convict then it is also a natural consequence of conviction, which empowers the employer to take action against the convict. Legislature wisdom framed the rule to keep the convict out of job consciously, conscious of fact that convict may challenge his conviction by preferring appeal or revision as the case may be and appellate or revisional Court may suspend the conviction, yet has framed the rule that action against employee can be taken on employee's conviction irrespective of fact whether the conviction is subjudice before the appellate Court." It was also observed by the Division Bench that: "If only because of reason that the convict will be put to out of job and it will effect adversely to family of the convict and there is no chance of early disposal of convict's appeal by the appellate Court then in all cases, the Court will have to stay the conviction and that will made the rule under which action can be taken by the employer of public employment as redundant and in view of the Apex Court's decision given in Deepak Matuu's case above grounds are not sufficient to grant suspension of sentence." The Hon'ble Court has also observed that: "The service rules have been framed purposefully so that normally convict may not and should not continue in the service and, therefore, when legislature itself has framed the rules for taking action against convict then normally there is no reason for not allowing the Government to take action permissible by the service rules. It is necessary that public post must be occupied by clean persons. If conviction is stayed so that a tinted, rather a convict may continue in job during period of appeal, which according to the petitioner himself may remain pending for serveral years and even for decades." "Unblemished service record and chance of promotion itself cannot be ground for suspension of conviction in all cases." 15. In the case of Kanhaiya vs. State of Rajasthan: 2001 (3) WLC (Raj.) 411, the Division Bench of this Court has held that: "A close look at Section 389(1) demonstrates that the Legislature provides for suspension of the rigour of the judgment of the trial Court pending disposal of appeal. There may be cases where conviction may not be of any effect pending the decision of appeal and the convict in such a case may only seek suspension of the execution of sentence. But there may be cases where conviction becomes disqualification unless it is ceased to operate. Such a situation necessitates the suspension of conviction till the disposal of the appeal. It is well settled that once the conviction and sentence are set aside in appeal, the acquittal dates back to the date of conviction and it is wipped off from the date. When the order of conviction rendered by the trial Court does not attain finality during the pendency of the appeal and after the appeal is allowed the order of acquittal relates back to the date of the order of conviction than why should we consider the words `order appealed against' incorporated in section 389(1) in a narrow sense as to exclude `conviction? Where the effect of order of conviction entails disqualification from contesting the election or termination from the services, the appellate Court on the specific request made in this regard by the convict, may suspend the conviction after assigning the reasons. The appellate court may suspend the order of conviction under Section 389 (1) Cr.P.C. where it is capable of execution." 16. In the case of Khemraj vs. State of Rajasthan reported in 2009(3) WLC (Raj.) 309 = 2009(4) RLW 3254, Hon'ble Division Bench of this High Court refused to stay the conviction of the accused on the ground that no special facts shown by him. It was also found that the case is not of rare category. In the case of Khemraj vs. State of Rajasthan reported in 2009(3) WLC (Raj.) 309 = 2009(4) RLW 3254, Hon'ble Division Bench of this High Court refused to stay the conviction of the accused on the ground that no special facts shown by him. It was also found that the case is not of rare category. It was also held that each convict has to support his family and, therefore, loss of earning as consequence of termination of service cannot be a valid ground for stay of conviction. 17. Taking into consideration the overall facts and circumstances of the case, I am of the view that the present case is not of such a nature in which the discretion conferred upon the appellate Court to stay the operation of order of conviction under Section 389 Cr.P.C. should be exercised in favour of the appellant. It is an admitted fact that the relevant service rules provides that if an employee of the Corporation is convicted by the competent Court, his services are liable to be terminated on that basis only. When the legislature have thought fit to disqualify such a convicted and sentenced person to remain on a public post, then such a person should not be allowed to hold such an office. It is in the interest of public that such a tainted person does not hold such an office. If due to some disqualification prescribed by law a person is not entitled to qualify on a public post or stands disqualified after conviction, he is not entitled to continue on such post. If such a disqualified person's services are terminated, it cannot be said that such person shall suffer irreparable loss. It was for the appellant to plead and prove existence of such special reasons so as to keep the conviction in abeyance. I do not find any special reasons for stay of conviction of the appellant from the facts of the case. If the appeal filed by the appellant is allowed and his conviction and sentence is set aside by the High Court the result would be that the appellant would get opportunity to demand restoration of his employment with back wages and, therefore, it cannot be said that he would suffer irreparable loss, if his services are terminated as a consequence of his conviction in the present case. Similarly, possible delay in disposal of the appeal and that there are arguable points in appeal by itself may not be sufficient to grant stay of the conviction. 18. Consequently, the application for stay of conviction being devoid of any substance is, hereby, dismissed.