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2016 DIGILAW 434 (PNJ)

Malak Singh v. State of U. T. Chandigarh

2016-02-03

JASPAL SINGH

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JUDGMENT : Jaspal Singh, J. 1. By virtue of this application preferred under Section 482 Cr.P.C. read with Section 397 Cr.P.C., petitioner Malak Singh has sought suspension of his conviction. 2. Learned counsel for the applicant petitioner contends that the petitioner has been acquitted of the charge by the learned Magistrate vide judgment dated April 6, 2009 but in an appeal preferred by the State U.T. Chandigarh, petitioner has been convicted and sentenced under Section 474 IPC to undergo RI for a period of two years besides imposition of fine, vide judgment dated November 20, 2014 rendered by the Sessions Judge, Chandigarh. The petitioner is a Senior Assistant in Punjab School Education Board and due to his conviction in the present case, the Department is going to terminate his services. There is no other source of income with the petitioner and no other family member is bread earner to look-after his family. Allegations against the applicant petitioner are only that he is in the habit of committing theft Detailed Marks Card/Certificates of various classes of Punjab University and used to forge the name & roll number of the students and used to sell the same to people but there is no such evidence against him and it was only due to non-establishment of facts and allegations that he was acquitted by the learned trial Magistrate. 3. On the other hand, learned Standing counsel for U.T. Chandigarh has submitted that applicant petitioner is not entitled to stay of his conviction, especially in the circumstances that there are specific allegations against him that he has been indulging in the theft of Detailed Marks Cards/Certificates and then, by forging the names & roll numbers etc., he used to sell the same to different persons. 4. This Court has given an anxious thought to the rival submissions of learned counsel for the parties and have perused the record. 5. No doubt, a glance at sub-section (1) of Section 389 Cr.P.C. transpires that during the pendency of an appeal preferred by a convict person, appellate court has discretion for reasons to be recorded by it in writing, to execute sentence or order appealed against be suspended and if he is in confinement, to release him on bail. 5. No doubt, a glance at sub-section (1) of Section 389 Cr.P.C. transpires that during the pendency of an appeal preferred by a convict person, appellate court has discretion for reasons to be recorded by it in writing, to execute sentence or order appealed against be suspended and if he is in confinement, to release him on bail. However, appellate court is empowered not only to suspend the execution of sentence and to grant bail but also to suspend the operation of order appealed against i.e. to stay or suspend the operation of the order of conviction. The observation of this Court is fortified by the judgment delivered by Hon’ble Apex Court in the case of Rama Narang v. Ramesh Narang & others, 1995 (2) SCC 513 . A similar view was expressed by Hon’ble Apex Court in the case of Ravi Kant S. Patil v. Sarvabhouma S. Bagali, JT 2006 (1) SC 578; State of Tamil Nadu v. A. Jaganathan, (1996) 5 SCC 329 ; K.C. Sareen v. CBI, Chandigarh, 2001 (6) SCC 584; B.R. Kapur v. State of T.N. & another, (2001) 7 SCC 231 and State of Maharashtra v. Gajanan & another, (2003) 12 SCC 432 . 6. The ratio of the aforesaid decisions clearly spells out that though there is a power to stay conviction with the Appellate Courts but said power should be exercised sparingly, that too, in exceptional circumstances where failure to stay the conviction would lead to injustice and irreversible consequences. Moreover, each case has to be considered, dealt with and disposed of by the court keeping in view the peculiar and particular facts thereof. 7. Similarly, in State of Maharashtra through CBI, Anti Corruption Branch, Mumbai vs. Balakrishna Dattatrya Kumbhar, 2012 (12) SCC 384 , the Hon’ble Apex Court again reiterated that power to stay conviction 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. 8. It is also equally true that where the applicant is involved in a corruption case or a case involving moral turpitude, then in view of observation made by the Hon’ble Apex Court in K.C. Sareen’s case (supra), the appellate court should desist from suspending the order of conviction during the pendency of appeal. 8. It is also equally true that where the applicant is involved in a corruption case or a case involving moral turpitude, then in view of observation made by the Hon’ble Apex Court in K.C. Sareen’s case (supra), the appellate court should desist from suspending the order of conviction during the pendency of appeal. Equally settled is the principle that for stay of conviction, facts and circumstances of each case have to be taken note of and considered in case Tarsem Singh & others vs. State (Chandigarh Administration), Chandigarh, 2006(1) I.L.R. Punjab and Haryana 234, a police officer was convicted under Sections 120-B, 420, 468 and 471 IPC for extending help to the main accused in getting medical fitness for recruitment in the police department. On the relevant date, the petitioner being ASI was not assigned any such duty and was not found to be a beneficiary in any manner. Since, he was not convicted for an offence under the Prevention of Corruption Act, this Court extended the concession of suspension of conviction during pendency of the appeal. 9. Adverting to the facts of the case in hand, applicant petitioner was charge-sheeted to face trial under Sections 380, 467, 468, 420 IPC but finding that the case against the applicant is not proved, he was granted the benefit of doubt and was acquitted by the learned trial court. In an appeal preferred by U.T. Chandigarh, though, his acquittal was maintained for the alleged commission of offence under Sections 380, 467, 468, 420 IPC but he was convicted and sentenced under Section 474 IPC by the appellate court. It is a debatable question whether the offence under Section 474 IPC is made out from the evidence available on record. The applicant has already been granted the benefit of suspension of sentence and the revision petition has already been admitted. The offence complained of against the applicant also cannot be termed to constitute moral turpitude. There is also no allegation of corruption against him. Considering the fact that he is a sole bread earner in the family and is going to be shunted out of service on the basis of his conviction, he deserves the concession of stay of conviction. 10. There is also no allegation of corruption against him. Considering the fact that he is a sole bread earner in the family and is going to be shunted out of service on the basis of his conviction, he deserves the concession of stay of conviction. 10. In the light of what has been discussed above and without commenting on the merits of the case, this Court is of the considered view that the very purpose of the revision petition would stand defeated if services of the applicant are terminated or he is rendered jobless. Accordingly, the application is allowed. Conviction of the applicant petitioner under Section 474 IPC vide judgment dated November 20, 2014 shall remain stayed during the pendency of revision petition.