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2016 DIGILAW 908 (MP)

Omprakash S/O Ramanuj Tiwari v. State Of M. P.

2016-10-05

RAJENDRA MAHAJAN

body2016
ORDER : Shri Sushil Kumar Tiwari, learned counsel for the applicants. Shri R. N. Yadav, learned Panel Lawyer for the respondent/State. Heard on I.A. No. 17269/2015, which is an application moved on behalf of applicant No. 1 Om Prakash son of Shri Ramanuj Tiwari @ Tripathi for grant of stay of conviction recorded against him till the disposal of this revision on merits. 2. The short facts of the case are that vide the judgment dated 29-10-2013 passed by the Judicial Magistrate First Class, Shahdol (Smt. Tripti Pandey) in Criminal Case No. 557/2010, the applicant and six other accused persons are convicted under sections 498-A of the Indian Penal Code and 4 of the Dowry Prohibition Act and sentenced thereunder each to suffer on first count R.I. for one year with a fine of Rs. 1,000/- and second count R.I. for six months with a fine of Rs. 2,000/- with default stipulations. However, the substantive jail sentences in the aforesaid sections are directed to run concurrently. Feeling aggrieved thereby, the applicant and other convicted accused persons filed a Criminal Appeal No. 229/2013, which was decided by the Additional Sessions Judge, Shahdol (Shri S. B. Verma) vide the impugned judgment dated 13-2-2015, whereby the learned A.S.J. has affirmed the conviction and the sentence, dismissing the appeal. Hence, this revision. During the pendency of this revision, complainant Neetu Tiwari submitted an application (Annexure-A/1) to the Chief Executive Officer, Janpad Panchayat Karkeli, District Umaria stating that the applicant is her husband and that she brought the prosecution against the applicant and other convicted accused persons in the case and that they have been undergoing the jail sentence since 13-2-2015, the date of impugned judgment. The applicant is posted as Sub Engineer on Samvida Niyukti (Contract Employment) in MANREGA, Janpad Panchayat Karkeli, District Umaria. As per the provisions of Sub Clause 12 of Clause 10 of Samekit Samvida Niti, which is issued by the Parent Department, the Panchayat and Rural Development to the Government of Madhya Pradesh vide circular letter No. 8390/22/B-2-Establishment-10 Bhopal dated 26-6-2010, if any employee appointed on Samvida Nyukti is found indulging in criminal activities, then he or she shall be removed from the service. The applicant is convicted and sentenced, and he has been undergoing the jail sentence. Therefore, his service be terminated. The applicant is convicted and sentenced, and he has been undergoing the jail sentence. Therefore, his service be terminated. Thereupon, the Collector and District Coordinator, MANREGA, Umaria issued a notice (Annexure-A/2) to the applicant to show cause why his service cannot be terminated following his conviction and undergoing jail sentence? The applicant submitted a written reply (Annexure-A/3) wherein he has stated that he and the other convicted persons have filed revision before the M.P. High Court against the judgment of the appellate Court. Thereupon, the High Court has suspended his jail sentence vide order dated 5-3-2015. Upon his furnishing bail-bonds on 6-3-2015, he is released on bail. On 9-3-2015, he has resumed his duties. However, the said Authority has not been satisfied with the applicant’s reply as he is convicted for the offences which fall in the category of moral turpitude offences and vide order dated 18-8-2015 (Annexure-A/4) he is removed from the service. 3. The applicant has stated in the I.A. that upon a Court order dated 11-2-2011 he has been paying maintenance allowance under section 125 of the Criminal Procedure Code to the complainant at the rate of Rs. 3,000/- (rupees three thousand) per month. She has also filed an application under section 127 of the Criminal Procedure Code for enhancement of the maintenance allowance, which is pending before the concerned Court. He has been suffering from a major ailment called “Mid CBD Stricture” since 2012 for which he has to spend huge amount every month on his medical treatment. He has presently no other source of income as he had lost his job upon the complainant’s complaint. Under the circumstances, he is unable to pay maintenance allowance to the complainant. Therefore, the arrears of maintenance allowance are being accumulated. He, therefore, apprehends that the concerned Court may send him into jail in default of payment of maintenance allowance to the complainant. For want of money, he is also unable to take his medical treatment properly. In the circumstances, his conviction be stayed so that he may get back the service or apply in the other government departments, whereafter, he would be able to pay the complainant maintenance allowance regularly and to take medical treatment properly. 4. For want of money, he is also unable to take his medical treatment properly. In the circumstances, his conviction be stayed so that he may get back the service or apply in the other government departments, whereafter, he would be able to pay the complainant maintenance allowance regularly and to take medical treatment properly. 4. The learned Panel Lawyer has opposed the prayer for staying of conviction on the ground that the applicant is convicted for the offences which fall in the category of moral turpitude offences. He has also expressed his apprehension saying that once the conviction is stayed in the case thereafter the applicant would certainly adopt delaying tactics in disposal of the case on merits. 5. In the following decisions, Hon’ble the Supreme Court has considered the scope of staying the conviction during pendency of the appeal or revision. Upon the law laid down in the decisions, the I.A. shall be adjudicated upon. 6. The Supreme Court in Shyam Narayan Pandey vs. State of U.P., (2014) 8 SCC 909 , has held thus :— “The Court should be very wary in staying the conviction especially where offence alleged against convict is punishable with death or life imprisonment or for a period of not less than 10 years or whose offence involves moral turpitude. Staying of conviction should be in rare and exceptional cases of irreparable injury coupled with irreversible consequences resulting in injustice.” 7. The Supreme Court in Ravikant S. Patil vs. Sarvabhouma S. Bagali, (2007) 1 SCC 673 : (2007) 1 SCC (Cri) 417, has held thus :— “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.” 8. The Supreme Court in Navjot Singh Sidhu vs. State of Punjab, (2007) 2 SCC 574 : (2007) 1 SCC (Cri) 627, has held thus :— “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. 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.” 9. The Supreme Court in State of Maharashtra vs. Balakrishna Dattatrya Kumbhar, (2012) 12 SCC 384 , has held thus :— “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 examine 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.” 10. The Supreme Court in State of Maharashtra vs. Gajanan, (2003) 12 SCC 432 and in Union of India vs. Atar Singh, (2003) 12 SCC 432 , has held thus :— “Loss of job is not an exceptional circumstance for staying the conviction.” 11. Having considered the grounds whereupon the applicant is seeking stay on conviction vis-a-vis the law laid down in the aforestated case-law. I am of the opinion that the applicant has failed to make out a case for staying the operation of conviction. Hence, the I.A. is dismissed. However, I am of the view that this revision deserves urgent hearing taking into consideration the facts mentioned in the I.A. Therefore, the office is directed to list this revision for final hearing on any working Thursday preferably in the month of November, 2016.