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2023 DIGILAW 785 (PNJ)

Sanjeev Kumar v. State of Haryana

2023-02-20

JAGMOHAN BANSAL

body2023
JUDGMENT Jagmohan Bansal, J. The applicant through instant application is seeking stay of impugned judgment of conviction dated 16.07.2021 whereby applicant has been held guilty of commission of offence punishable under sections 8, 10 and 12 of Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO') and Section 354 & 506 Indian Penal Code, 1860 (for short 'IPC'). 2. Learned counsel for the applicant, inter alia contends that applicant in the year 2006 was selected as Post Graduate Teacher (English). On account of instructions from the State of Haryana, the result of students was very important for every teacher. The applicant started taking stern steps against students who were not performing well in English. The prosecutrix was one of those students. The prosecutrix during the course of her cross-examination has miserably demolished the case of the prosecution. The Investigation Officers (PW-11 & PW-12) have not supported the case of the prosecution still applicant has been convicted. The career of the applicant is at stake. He, at any point of time, may be terminated on account of impugned judgment of conviction. He has unblemished record of 11 years. 3. In support of his contention, learned counsel for the applicant relied upon a Three Judge Bench judgment of Hon'ble Supreme Court in Rama Narang v. Ramesh Narang & Others; 1995(2) SCC 513 . 4. Learned State counsel while not disputing the fact that this Court in terms of judgment of Hon'ble Supreme Court in Rama Narang's case (supra) has power to stay judgment of conviction apart from power to stay order of sentence, submits that there should be some exceptional case for staying the order of conviction. She further confirms that appeal stands admitted and sentence stands suspended. 5. I have heard the arguments of the parties and perused the record. 6. The cross-examination of prosecutrix reads as:- "XXXXXX by Shri Mandeep Singh, Advocate for accused Sanjeev Kumar. I have studied in Government Senior Secondary School, Kawartan from 1st to 10+2 standard. Accused Sanjeev Kumar being teacher of English subject had started to teach me and other students of my class while I was studying in 9 standard and he continued to teach us upto 10+2 standard. During my study I was basically weak in English subject. I have studied in Government Senior Secondary School, Kawartan from 1st to 10+2 standard. Accused Sanjeev Kumar being teacher of English subject had started to teach me and other students of my class while I was studying in 9 standard and he continued to teach us upto 10+2 standard. During my study I was basically weak in English subject. It is correct that accused Sanjeev used to scold me for not improving my handwriting as well as to get myself improve subject English. It is correct that the alleged colourful remarks (do you like me yes/no) is not recorded in notebook Ex. P5 Volunteered it was written on a loose paper I do not remembered if I had handed over said loose paper to the police but I do not possess the same. The accused never wrote down any alleged colourful remarks on notebook Ex. P5 in my presence. Even I never witness him to do so. Accused had caught my hand while checking my notebook due to the reason of not improving my handwriting. He had not caught my hand with bad intention I was under the fear of accused due to non improving my handwriting as well as improving myself in the language of English. Accused taunted me only due to the reason of non improving handwriting by myself. The accused even stared at me only due to aforesaid reason of non improving of handwriting by myself and due to said reason I never relished accused being my class teacher or my class Incharge. Application Ex. P2 had been writing by me on the direction of some lady police official in the premises of police station Siwan. It is incorrect to suggest that accused never sexually harassed me as alleged. It is incorrect to suggest that a false case has been registered by the police against the accused with ulterior motive. It is incorrect to suggest that no such incident ever taken place with me in such like a fashion and manner as got recorded by me in examination-in-chief." 7. Investigating Officer (PW-11), namely, ASI Ramesh Chand, appeared in the witness box and admitted in his cross-examination that he did not record statement under Section 161 Cr.P.C. of any other teacher or employee or student of school, to corroborate the version of the victim. Investigating Officer (PW-11), namely, ASI Ramesh Chand, appeared in the witness box and admitted in his cross-examination that he did not record statement under Section 161 Cr.P.C. of any other teacher or employee or student of school, to corroborate the version of the victim. Another Investigating Officer, namely, Darshana Devi (PW- 12) appeared in the witness box and admitted that during her investigation, no teacher, employee or any student got recorded statements to corroborate the version of the victim. 8. The Investigating Officers (PW-11 and PW-12) have categorically admitted that no teacher, employee or other student was made to join investigation. PW-11 has even admitted that statement of no other student, teacher, employee was recorded under Section 161 Cr.P.C. The Hon'ble Supreme Court in Rama Narang's case (supra) has categorically held that Appellate Court has power to stay operation of judgment of conviction apart from power to stay order of sentence. The relevant extracts of the judgment read as:- "19. That takes us to the question whether the scope of Section 389(1) of the Code extends to conferring power on the Appellate Court to stay the operation of the order of conviction. As stated earlier, if the order of conviction is to result in some-disqualification of the type mentioned in Section 267 of the Companies Act we see no reason why we should give a narrow meaning to Section 389(1) of the Code to debar the court from granting an order to that effect in a fit case. The appeal under Section 374 is essentially against the order of conviction because the order of sentence is merely consequential thereto; albeit even the order of sentence can be independently challenged if it is harsh and disproportionate to the established guilt. Therefore, when an appeal is preferred under Section 374 of the ode the appeal is against both the conviction and sentence and therefore, we see no reason to place a narrow interpretation on Section 389(1) of the Code not to extend it to an order of conviction. Although that issue in the instant case recedes in the background because High Courts can exercise inherent jurisdiction under Section 482 of the Code if the power was not to be found in Section 389(1) of the Code. Although that issue in the instant case recedes in the background because High Courts can exercise inherent jurisdiction under Section 482 of the Code if the power was not to be found in Section 389(1) of the Code. We are, therefore, of the opinion that the Division Bench of the High Court of Bombay was not right in holding that the Delhi High Court could not have exercised jurisdiction under Section 482 of the Code if it was confronted with a situation of there being no other provision in the (lode for staying the operation of the order of conviction. 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 persons 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 Companies 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 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." 9. The applicant is indubitably a Government Teacher and prosecutrix prima facie in her cross-examination has not supported case of the prosecution. The applicant is not involved in any other case and appeal of the applicant is not likely to be heard in near future. On account of impugned judgment, the applicant may lose his job which would certainly spoil his career. The Co-ordinate Benches of this Court in Pritpal Kaur and Others v. State of Punjab, 2017 (2) RCR (Criminal) 267; Darshan Singh v. State of Haryana, 2007 (28) RCR (Criminal) 45 and Javinder Patwari v. State of Haryana, 2018(2) RCR (Criminal) 327, have stayed the operation of judgment of conviction. 10. In view of above facts and circumstances, the present application deserves to be allowed. Accordingly, operation of impugned judgment is stayed till further orders. Disposed of in above terms.