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2017 DIGILAW 1439 (JHR)

Subodh Kumar Singh v. State of Jharkhand

2017-08-11

RATNAKER BHENGRA

body2017
ORDER : I.A. No. 1571 of 2015 The instant interlocutory application has been filed under section 389(1) of the Code of Criminal Procedure for suspension of order of conviction dated 13.12.2013 and order of sentence dated 16.12.2013 respectively, passed by the learned Additional Sessions Judge-I East Singhbhum Jamsedpur in S.T. No. 250 of 2006 arising out of Telco P.S Case No. 39 of 2006 corresponding to G.R No. 360 of 2006 during pendency of the present criminal appeal. 2. The present Criminal Appeal has been filed against the judgment of conviction dated 13.12.2013 and order of sentence dated 16.12.2013 whereby the Learned Court below held the appellant guilty of having committed offence under Section 376 (1), 313 & 201 of the Indian Penal Code. The convict-appellant was directed to undergo R.I. for 7 years and also fine of Rs. 5,000/- and in default of payment of fine he was to undergo R.I. for 2 months under Section 376 (1) of the Indian Penal Code. He was directed to undergo R.I. for 5 years and a fine of Rs. 5,000/- and in default of payment of fine to undergo R.I. for 2 months, under Section 313 of the I.P.C. The convict was further directed to undergo R.I. for 2 years and fine of Rs. 2,000/- and in default of payment of fine to further undergo R.I. for one moth under Section 201 of the Indian Penal Code. All the sentences of imprisonments were directed to run concurrently, but the fines imposed under different sections was to be paid separately. The amount of fine so realized from the convict were ordered to be handed over to the victim by way of compensation under the provision of Section 357 (1) of the Cr. P.C. 3. The learned counsel for the appellant submitted that the present criminal appeal was admitted on 28.02.2014 and L.C.R was called for. Therefore, after hearing the parties, the bail was granted to the appellant on 25.04.2014 by this Court. 4. Learned counsel for the appellant further submitted that the appellant is Government servant and after conviction in the aforesaid case, the appellant was suspended from his service on the ground of conviction in S.T. Case No. 250 of 2006. This appellant is facing a lot of difficulties both monetary and socially due to the suspension from the service and the appellant is unable to maintain his family. This appellant is facing a lot of difficulties both monetary and socially due to the suspension from the service and the appellant is unable to maintain his family. On this ground, learned counsel prayed for suspension of conviction of the appellant during pendency of the appeal. 5. Learned counsel for the appellant has cited the decisions in the case of S. Khushboo Vs. Kanniammal and Anr, reported in (2010) 5 S.C.C 600 ; Rama Narang Vs. Ramesh Narang and Ors, reported in (1995) 2 S.C.C 513 ; Ravikant S. Patil Vs. Sarvabhouma S. Bagali, reported in (2007)1 S.C.C 673 to boost up his case as to why his conviction should be suspended. 6. I have heard learned counsel for the appellant as well as State and so the core issue to be decided in the instant interlocutory application is whether conviction can be suspended during pendency of the appeal. 7. However, S. Khushboo case (Supra) does not have much relevance in the facts and also in the law arising out of the present case. In the aforesaid case, the appellant's acts were punishable under sections 499, 500 and 505 of the Indian Penal Code and sections 4/6 of the Indecent Representation of Women (Prohibition) Act, 1986. In that case, the facts of the case was totally different pertaining to allegation of obscenity and indecent representation of women. Appellant in that case had approached the Apex Court to seek quashing of criminal proceeding against her. Appellant had approached the High Court for quashing of criminal complaint under section 482 of the Code of Criminal Procedure and her plea was rejected. Subsequently, the Hon'ble Apex Court had allowed the appeal and set aside the impugned judgment and order, including the criminal proceeding initiated against the appellant. 8. In Rama Narang Case (Supra), the appellant was convicted for the offence punishable under section 120B and section 420 to be read with section 114 of the Indian Penal Code by the learned Trial court. In appeal High Court had released the appellant on bail and directed stay of the operation of the impugned order. Appellant, who was a Managing Director in a company, his continuation as Managing Director was challenged by the respondents after his conviction in view of provision of section 267 of the Companies Act,1956. In appeal High Court had released the appellant on bail and directed stay of the operation of the impugned order. Appellant, who was a Managing Director in a company, his continuation as Managing Director was challenged by the respondents after his conviction in view of provision of section 267 of the Companies Act,1956. Section 267 of the Companies Act, provides disqualification in the sense that it says that no person, who has suffered a conviction by a court of an offence involving moral turpitude shall be employed or appointed or continued in the appointment or employment as its Managing or whole-time Director in the Company. Apex Court in this case dealt with the question whether appellant was liable to be visited with the consequences of section 267 of the Companies Act, notwithstanding the interim order passed by the High Court while admitting the appellant's appeal against his conviction and sentence. In addressing this question Apex Court interpreted the scope of section 389(1) Cr.P.C and answered also the question whether the scope of section 389(1) of the Code of Criminal Procedure extends to conferring power on the Appellate court to stay the operation of order of conviction. In this case the Hon'ble Apex Court observed at paras 19 and 20 that:- “19 … In a fit case if the High Court feels satisfied that the order of conviction needs to be suspended or stayed so that the convicted person does not suffer from a certain disqualification provided for in any other statute, it may exercise the power because otherwise the damage done cannot be undone; the disqualification incurred by Section 267 of the Companions Act and given effect to cannot be undone at a subsequent date if the conviction is set aside by the Appellate Court. But while granting a stay of (sic 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 so doing it may, if it considers it appropriate, impose such conditions as are considered appropriate to protect the interest of the shareholders and the business of the company. “20 …. “20 …. For the above reasons we are of the opinion that since the interim order of stay did not specifically extend to the stay of conviction for the purpose of avoiding disqualification of under section 267 of the Companies Act, there is no substance in the appeal and the appeal is therefore, dismissed...” It is seen that in the aforesaid case, the issue of section 267(C) of the Companies Act, which provides for disqualification apart from the Indian Penal Code, was addressed and the case was sought to be made out that unless the suspension of conviction is stayed, his right under the Companies Act may be denied. In the present case of the appellant the offences punishable are under sections 313 and 201 and especially under section 376 of the Indian Penal Code which is serious in nature and in the case of the appellant he does not suffer from any disqualification provided for in any other statute. 9. Subsequent case, which has been relied upon by the learned counsel for the appellant, is Ravikant S. Patil (Supra). In this case, the appeal under section 116A of the Representation of the People Act, 1951 was preferred by the elected candidate. The appellant was an elected member of Karnataka Legislative Assembly which was subsequently dissolved. Appellant had been convicted for the offence punishable under sections 366 and 376 of the Indian Penal Code and sentenced to imprisonment for more than two years. Appellant had obtained the stay of conviction by the High Court for contesting the election, if not, he would have been disqualified under the bar of Section 8 of Representation of the People Act, 1951. In this case the Hon'ble Supreme Court after going through various cases observed at para 16.5 as follows : “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” 10. So the Apex Court in Ravikant S. Patil (Supra) has held that stay of conviction should be exercised only in exceptional circumstances where the failure to stay the conviction, would lead to injustice and irreversible consequences . 11. So the Apex Court in Ravikant S. Patil (Supra) has held that stay of conviction should be exercised only in exceptional circumstances where the failure to stay the conviction, would lead to injustice and irreversible consequences . 11. After going through the facts and records of the case and also after going through the judgments cited by the learned counsel for the appellant, have also gone through some other cases decided by the Apex Court on the issue of stay of conviction . The Apex court dealt with the said issue elaborately in the case of State of T.N .Vs. A. Jaganathan (1996) 5 S.C.C 329 and held at para 3 as follows : “...The High Court though made an observation but did not consider at all the moral conduct of the respondents inasmuch as respondent Jaganathan who was the Police Inspector attached to Erode Police Station has been convicted under Sections 392, 218 and 466 IPC, while the other respondents who are also public servants have been convicted under the provision of Prevention of Corruption Act. In such a case the discretionary power to suspend the conviction either under Section 389(1) or under Section 482 CrPC should not have been exercised. The orders impugned thus cannot be sustained.” 12. So moral conduct of a public servant is to be seen in exercising the power to stay of conviction. Apex Court in State of T.N (Supra) set aside the stay of conviction passed by the High Court. 13. The Apex Court in K.C. SAREEN Vs. CBI, CHANDIGARH, (2001) 6 SCC 584 further examined the issue regarding stay of conviction and held in paragraph 11 as follows:- “11. The legal position, therefore, is this: though the power to suspend an order of conviction, apart from the order of sentence, is not alien to Section 389(1) of the Code, its exercise should be limited to very exceptional cases. Merely because the convicted person files an appeal in challenge of the 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....” 14. Merely because the convicted person files an appeal in challenge of the 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....” 14. So, Apex Court In K.C Sareen (Supra) held that power to stay conviction shall be limited to very exceptional case and it is the duty of the Court to look at all aspects including the ramification of keeping such conviction in abeyance. 15. Again, Apex Court in case of STATE OF MAHARASHTRA through CBI, Anti Corruption Branch, Mumbai Vs. BALAKRISHNA DATTATRYA KUMBHAR (2012) 12 SCC 384 , reiterated the same legal proposition as to the issue regarding the stay of conviction and held at para 15 as follows:- “15. 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 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”. 16. Based on the facts and circumstances of the case in hand and upon studying of the judgments relied upon by the appellant and also having gone through some other Judgments delivered by the Apex Court on the issue of stay of convictions i.e State of Maharashtra (Supra), State of T. N. (Supra) and K.C Sareen (Supra) it is seen that offences in these cases pertain to Prevention of Corruption Act, but no stay of conviction was allowed on the ground that persons employment or careers or future may be negatively effected. In the present case appellant is also convicted under sections 376 of the Indian Penal Code, which is also a serious offence and therefore keeping in line with ratio of the aforesaid judgments, appellant has not been able to make out the exceptional circumstances for the stay of his conviction during pendency of appeal and therefore, I am not inclined to allow the prayer made in this I.A regarding stay of conviction and accordingly, this I.A is dismissed.