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2025 DIGILAW 187 (PAT)

Ujjwal Kumar S/o Anand Kumar v. State of Bihar

2025-02-14

RAJEEV RANJAN PRASAD

body2025
ORDER : I.A. No. 3 of 2024 1. Heard learned counsel for the appellant no. 1 and learned Additional Public Prosecutor for the State. 2. By filing this interlocutory application, the appellant no. 1 prays for staying the order of conviction dated 13.04.2021 passed by learned Additional Sessions Judge-III, Patna City, Patna in Sessions Trial No. 738 of 2016 arising out of Alamganj P.S. Case No. 93 of 2016. By the judgment and order under appeal, the appellant has been convicted for the offence punishable under Sections 304B/306 of the Indian Penal Code (in short ‘IPC’) and has been awarded ten years rigorous imprisonment for the offence punishable under Section 304B IPC and seven years rigorous imprisonment and a fine of Rs.40,000/- for the offence punishable under Section 306 IPC and in default of payment of fine, he shall be liable to undergo rigorous imprisonment for one year. 3. The appellant no. 1 preferred I.A. No. 2 of 2023 for suspension of his sentence and release on bail during pendency of the appeal which has been allowed vide order dated 03.04.2024 after noticing that the appellant no. 1 had remained in incarceration for half of the period of sentence but the appeal is not likely to be heard in near future. 4. Learned counsel for the appellant no. 1 submits that he was an employee of Dakshin Bihar Gramin Bank holding the post of an officer but after his conviction in the instant case, he has been dismissed from service on the ground of conviction alone. A copy of the dismissal order dated 07.05.2021 has been brought on record with the application as Annexure ‘2’. 5. Learned counsel submits that as per Para 30(4) of the Dakshin Bihar Gramin Bank (Officers and Employees) Service Regulation, 2010, an officer or employee who has been dismissed in pursuance of sub-regulation (3) and the relative conviction is set aside by the Higher Court and the officer or employee is acquitted, he shall be reinstated in the service of the Bank but on perusal of Annexure ‘2’, it would appear that the Appellant No. 1 has been dismissed with retrospective effect of 13.04.2021. It is his submission that if his conviction is not suspended, the appellant is likely to suffer irreparable loss as in case of his acquittal in the instant appeal after a lapse of so many years, he would suffer irreparable loss and cannot be compensated by the Appellate Court. It is submitted that the appellant no. 1 has availed COD loan which is outstanding as on 09.05.2024 at Rs.7,38,450.96/- and because of his dismissal from service, in absence of an order of stay of conviction, not only his source of livelihood is badly affected, he has now no source of income to repay the loan amount. 6. Learned counsel has relied upon the judgment of the Hon’ble Supreme Court in the case of Rama Narang Vs. Ramesh Narang and Others, (1995) 2 SCC 513 which has been duly discussed in the order dated 08 th September, 2010 passed by the Hon’ble Division Bench of this Court in Criminal Appeal No. 1218 of 2008 (Sheo Parsan Dubey Vs. State of Bihar) . It is submitted that Sheo Parsan Dubey (supra) was Assistant Manager of Madhya Bihar Gramin Bank. He was convicted under Sections 302 and 120B IPC and sentenced rigorous imprisonment for life as well as fine of Rs.25,000/-. He was dismissed from service vide Letter No. 1273 issued by the Chairman. It was contended before the Hon’ble Division Bench that if the order of conviction of the appellant is not stayed, he would be on the verge of starvation. The Hon’ble Division Bench was informed that the family of the appellant including his children whose educations are at stake will suffer huge civil consequences. Considering the entire facts and circumstances of the case as also judgment of the Hon’ble Supreme Court on the subject, the Hon’ble Division Bench was pleased to stay the order of conviction till the disposal of the criminal appeal. 7. Learned counsel for the appellant submits that in another case of Chanda Ram Shivsharan Vs. The State of Maharashtra in Criminal Appeal No. 173 of 2022 , a learned Single Judge of the Bombay High Court took a similar view in case of a Class IV employee who was working as a sweeper with the Health Department of the Solapur Municipal Corporation at the relevant time. The State of Maharashtra in Criminal Appeal No. 173 of 2022 , a learned Single Judge of the Bombay High Court took a similar view in case of a Class IV employee who was working as a sweeper with the Health Department of the Solapur Municipal Corporation at the relevant time. It is submitted that similar view be taken by this Court and the order of conviction of the appellant be stayed during pendency of the appeal. 8. On the other hand, the learned Additional Public Prosecutor for the State has opposed the prayer of the appellant. Relying upon the same judgment of the Hon’ble Supreme Court in the case of Rama Narang (supra), learned Additional Public Prosecutor for the State would submit that only in a situation where the order of conviction may incur a disqualification, the power under Section 389(1) of the Code of Criminal Procedure may be invoked. The Hon’ble Supreme Court has held that in such situation, the attention of the Appellate Court must be specifically invited to the consequence that is likely to fall to enable it to apply its mind to the issue. It is submitted that in the instant case, the consequences have already followed and the appellant no. 1 has been dismissed from service, therefore, at this stage, there is no need to stay the order of conviction. 9. Learned Additional Public Prosecutor has further relied on the judgment of the Hon’ble Supreme Court in the case of Ravikant S. Patil Vs. Sarvabhouma S. Bagali, (2007) 1 SCC 673 . It is submitted that the Hon’ble Supreme Court has clarified that 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. It is submitted that the Hon’ble Supreme Court has referred its judgment in the case of K.C. Sareen Vs. CBI, (2001) 6 SCC 584 in which it has been held that although 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. CBI, (2001) 6 SCC 584 in which it has been held that although 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. It has been held that merely because the convicted person files an appeal to challenge his conviction, the Court should not suspend the operation of the conviction and the Court has a duty to look at all aspects including the ramifications of keeping such conviction in abeyance. 10. It is submitted that power to grant stay of the order of conviction is required to be exercised only in exceptional circumstances where failure to stay the conviction would lead to injustice and irreversible consequences. 11. I have heard learned counsel for the appellant no. 1 as well as learned Additional Public Prosecutor for the State. 12. In the present case, the appellant no. 1 has been facing conviction for the offences punishable under Section 304B and Section 306 IPC. He happens to be an officer in Madhya Bihar Gramin Bank which is now known as Dakshin Bihar Gramin Bank. The submission of learned counsel for the appellant no. 1 is that because of his conviction, the appellant no. 1 has been dismissed from service with retrospective effect by Bank’s Letter No. 3792/21 dated 07.05.2021. The consequences of the dismissal from service is that not only he has lost his source of livelihood but even his dependents who are old aged parents are suffering in life in many ways. He has a loan of Rs.7,38,450.96 which he is unable to repay after losing his source of livelihood. 13. On going through the judgment of the Hon’ble Supreme Court in the case of Rama Narang (supra), this Court finds that the ratio of the judgment is contained in paragraph ‘16’ of the judgment wherein the Hon’ble Supreme Court has categorically held that “In certain situations the order of conviction can be executable, in the sense, it may incur a disqualification as in the instant case. In such a case the power under Section 389(1) of the Code could be invoked. In such a case the power under Section 389(1) of the Code could be invoked. In such situations the attention of the Appellate Court must be specifically invited to the consequence that is likely to fall to enable it to apply its mind to the issue since under Section 389(1) it is under an obligation to support its order “for reasons to be recorded by it in writing””. In paragraph ‘19’ of its judgment, the Hon’ble Supreme Court has observed interalia that “…. 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 Code 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 …” 14. In the case of Ravikant S. Patil (supra), the Hon’ble Supreme Court followed its judgment in Rama Narang (supra), however, referred its judgment in case of K.C. Sareen (supra). While reiterating the views expressed in Rama Narang (supra), the Hon’ble Supreme Court took note of the fact that in case of K.C. Sareen (supra), the prayer of the appellant was declined keeping in view the evil of corruption. The Bench observed in the said case that when conviction is on a corruption charge against a public servant, the Appellate Court should not suspend the order of conviction during the pendency of the appeal, even if the sentence of imprisonment is suspended. 15. I have been taken through the judgment of the Hon’ble Division Bench of this Court in the case of Sheo Parsan Dubey . It has been vehemently argued on behalf of the appellant no. 15. I have been taken through the judgment of the Hon’ble Division Bench of this Court in the case of Sheo Parsan Dubey . It has been vehemently argued on behalf of the appellant no. 1 that his case would be standing on identical footing with that of Sheo Parsan Dubey , therefore, the order of the Hon’ble Division Bench be followed by this Court by following the principle of stare decisis. 16. Learned Additional Public Prosecutor for the State has gone through the order of the Hon’ble Division Bench in the case of Sheo Parsan Dubey . Initially, he tried to distinguish this case on the ground that in this case, the appellant no. 1 has already been dismissed from service but very soon, when his attention was drawn towards the facts of the Sheo Parsan Dubey case wherein also, the said appellant had already been dismissed from service prior to stay of the operation of the order of conviction, learned Additional Public Prosecutor could not offer much resistance. 17. I find from the judgment of the Hon’ble Division Bench that in the said case, the order of stay of conviction was granted after considering the special ground that he has incurred disqualification for remaining in service on account of his conviction and because of this disqualification, he has been dismissed and he can be reinstated only when conviction is stayed. In its ultimate analysis, the Hon’ble Division Bench took a view as under:- “In the special circumstance, which is applicable in the present case, we are of the view that order of conviction as well as sentence passed against the appellant in Sessions Trial No. 210 of 2005/44 of 2006 is suspended till the disposal of the Criminal Appeal 1218 of 2008….” 18. In the light of the discussions made hereinabove, this Court is of the considered opinion that the reasoning and rationale provided in the judgment of the Hon’ble Division Bench in the case of Sheo Parsan Dubey would equally apply in case of the appellant no. 1 in the present case. 19. Therefore, this Court directs that there will be stay of the judgment/order of conviction during pendency of the appeal. 20. I.A. No. 3 of 2024 stands disposed of accordingly.