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2016 DIGILAW 251 (ORI)

Bharat Chandra Nayak v. State of Orissa

2016-03-31

J.P.DAS

body2016
JUDGMENT : J.P. Das, J. Assailed in this application is the order dated 05.08.2015 passed by the learned First Additional Sessions Judge, Puri in Criminal Appeal No. 15 of 2014 rejecting the prayer of the petitioner to stay the order of conviction passed against him in S.T. Case No. 83/143 of 2009 by the learned Assistant Sessions Judge, Puri against which the appeal has been preferred before learned First Additional Sessions Judge, Puri. 2. The petitioner stood convicted under Sections 364/394/34, I.P.C. and sentenced to undergo rigorous imprisonment for a period of five years on each count under Sections 364/394, I.P.C and to pay a fine of Rs.5000/-(rupees five thousand ) for the offence under Section 394/34, I.P.C. in default, to undergo rigorous imprisonment for further period of six months. 3. It was alleged that the daughter of the informant was forcibly kidnapped while she was returning from a training class and subsequently she was rescued by Dhenkanal Town Police. The informant alleged that the present petitioner due to some dispute had earlier given threat to kidnap his daughter. In course of investigation, the gold ornaments of the victim which were allegedly stolen by the culprits, were recovered and seized and after completion of investigation, charge-sheet was submitted against three accused persons including the present petitioner and the present petitioner along with one Rabindra Nayak faced the trial with a plea of denial since the third accused remained absconding. 4. On taking oral evidence and considering the materials placed before the Court the learned Assistant Sessions Judge, Puri found and held both the accused persons including the present petitioner guilty of the offences under Sections 364/394/34, I.P.C and passed the judgment of conviction and sentence. Against the said order of conviction, the petitioner along with the other convict has preferred the appeal before the learned First Additional Sessions Judge, Puri wherein the impugned order has been passed refusing to grant stay of conviction. 5. It was submitted on behalf of the petitioner that the petitioner is a bank employee and the alleged offences have nothing to do with his service matters, but, in view of the criminal proceeding, he was placed under suspension for some time and after the judgment of conviction, he has been dismissed from his service. 5. It was submitted on behalf of the petitioner that the petitioner is a bank employee and the alleged offences have nothing to do with his service matters, but, in view of the criminal proceeding, he was placed under suspension for some time and after the judgment of conviction, he has been dismissed from his service. It was submitted that the learned trial court erroneously reached the conclusion of guilt against the petitioner and the petitioner has a fair chance of acquittal in the appeal but, since his conviction has not been stayed, he has been deprived of his livelihood having been dismissed from his service. It was submitted by the learned counsel for the petitioner that the learned Additional Sessions Judge, Puri refused to grant stay of conviction basing on certain observations of the Hon’ble Apex Court which related to offences under Prevention of Corruption Act and other serious offences having some relation with the service of the convict and in the present case, the petitioner should have been granted with the benefit of stay of conviction in the given circumstances. It was also submitted that the petitioner has an unblemished service carrier, for which he had received some letters of appreciation from his authorities for the job well done. 6. As seen from the impugned order, the learned First Additional Sessions Judge, Puri has quoted the observation of the Hon’ble Apex Court as held in the case of Ravikanta S.Patil Vrs. Sarvavouma S. Bagali (2007) I SCC 673 wherein it was observed that “the power to stay the conviction should be exercised only in exceptional circumstances where failure to stay the conviction would lead to injustice and irreversible consequences.” The learned court below has also held that the appellant-petitioner has been found guilty of the offences which are grave and serious in nature and hence it was not an exceptional case so as to stay the conviction. 7. The learned counsel for the petitioner submitted that the evidence as led on behalf of the prosecution before the trial court, did not prove the guilt of the petitioner beyond reasonable doubts and there being a number of discrepancies and the deficiencies in the prosecution case, the petitioner was entitled for a clean acquittal which is expected to be gained in the appellate court. Consequently, it was submitted, due to the conviction and sentence, the petitioner has been dismissed from service and unless his conviction is stayed, the petitioner would lose his livelihood. Submitting the present case to be one under the exceptional circumstances, the learned counsel for the petitioner relied upon a decision of this Court reported in (2010) 47 OCR-236 Harihar Mishra v. Republic of India (C.B.I., Bhuabnesar). In the cited decision the petitioner who was convicted of the offences punishable under Sections 120-B/419/420/468/471, I.P.C. and sentenced to rigoruous imprisonment for one year besides fine was granted with the stay of conviction. But, suffice it to say that in the said case the petitioner was a businessman being the Managing Director of a Private Stevedoring Company and consequent upon his conviction the contract of his company with the Steel Authority of India Limited was cancelled and he was also issued with a notice to show-cause by the Paradeep Port Trust Authority as to why his stevedoring licence would not be cancelled. Thus, it was submitted in that case that the petitioner himself being a businessman, was not only to lose his business contracts but also a number of employees working in his company, were also going to lose their bread and butter which could never have been compensated. Thus, it was held by this Court in the said decision that the consequences those were likely to befall the petitioner in case of refusal to stay conviction was irreversible in nature and hence the case was treated as to be one under exceptional circumstances. But, in the instant case, the only contention that has been advanced on behalf of the petitioner is that he is going to lose his job. Thus, the positions in the cited decision and in the present case are absolutely different from each other so as to treat the present case to be exceptional. It has also been the observation of the Hon’ble Apex Court that grant of stay of conviction can be resorted to in rare cases depending upon the special facts of the case. However, referring to its number of earlier decisions on the issue, it has also been held by the Hon’ble Supreme Court in the case of State of Maharashtra through C.B.I (S.C. Branch), Mumbai Vrs. However, referring to its number of earlier decisions on the issue, it has also been held by the Hon’ble Supreme Court in the case of State of Maharashtra through C.B.I (S.C. Branch), Mumbai Vrs. Duttatrya Kumbhar reported in 2012, 9 OCR 601 that “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.” It has been observed by the Hon’ble Apex Court that losing the job during the pendency of the appeal cannot be said to be an irreversible consequence since in case of ultimate acquittal, the person can be restored with all his service benefits. At the same time, it was observed that if a person convicted of serious offences involving moral turpitude is allowed to continue in his service during the period of continuance of conviction, that would not only affect the reputation of the institution where he serves but would also affect the faith and confidence reposed by the general public on the justice delivery system. 8. The contentions advanced on behalf of the petitioner in this case regarding the flaws in the case of the prosecution or in the finding of guilt by the learned trial court, are not persuading enough to hold that the petitioner is likely to be acquitted, which would otherwise amount to prejudging the appeal at this stage. It has also been the observation of the Hon’ble Apex Court that a conviction is a judicial pronouncement by a competent court of law which continues to be in existence till it is set aside by the appropriate authority in due process of law. The second contention regarding the losing of job is also not a ground to stay the conviction as discussed herein before. Thus, in view of the facts and positions of law, as discussed above, I do not find any convincing reason to interfere with the impugned order passed by the learned First Additional Sessions Judge, Puri, the Appellate Authority in refusing to stay the conviction of the petitioner. Accordingly, the application stands dismissed.