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2025 DIGILAW 440 (KER)

Sajjay S/o. Sivadasan v. State Of Kerala

2025-03-04

C.JAYACHANDRAN

body2025
ORDER : The petitioner herein is the accused in C.C.No.77/2013 of the Judicial First Class Magistrate Court-II, Kollam. He was convicted for offences under Section 498A and 406, read with Section 34 of the Penal Code in the said Calendar Case. 2. The petitioner preferred an appeal before the Additional Sessions Court-III, Kollam vide C.R.A No.172/2024. He also preferred Crl.M.P No.1547/2024 seeking suspension of the sentence and also suspension of the order of conviction, rather the judgment of conviction, to be more precise. 3. The reason espoused for seeking suspension of the judgment of conviction is the possibility of initiating disciplinary proceedings against the petitioner, a Plus Two teacher in a Government school, which would result in break in his service. By virtue of the impugned Annexure-A2 Order, the learned Sessions Judge allowed Crl.M.P No.1547/2024 in part, suspending the order of sentence, but refusing to do so, insofar as the judgment of conviction is concerned. The learned Sessions Judge placed reliance upon K.C.Sareen v. CBI [ (2001) 6 SCC 584 ] and also Ajithkumar v. Central Bureau of Investigation [ 2019 (1) KHC 149 ] in arriving at the said conclusion. 4. Heard the learned counsel for the petitioner. The defacto complainant was not originally impleaded in this Crl.M.C and pursuant to an impleading petition filed thereafter, she was impleaded as additional 2 nd respondent. Heard the learned counsel for the 2 nd respondent/defacto complainant, who was subsequently impleaded in this Crl.M.C. Also, heard the learned Public Prosecutor on behalf of the 1 st respondent State. Perused the records. 5. Learned counsel for the petitioner submits that several proceedings are pending between the petitioner and the 2 nd respondent, who are husband and wife. The instant case alleging offences under Section 498A - later incorporating the offence under Sections 406 and 420 pursuant to further investigation - is the offshoot of such a marital discord between them. According to the learned counsel, a case of this nature, which is essentially private in nature between the petitioner and the 2 nd respondent, emanating from matrimonial disputes, should be considered in a different pedestal, unlike cases which arise from the Prevention of Corruption Act etc. Learned counsel would point out that, if disciplinary action is initiated against the petitioner, it would cause serious and irreparable harm to him, entailing break in service. Learned counsel would point out that, if disciplinary action is initiated against the petitioner, it would cause serious and irreparable harm to him, entailing break in service. Learned counsel would detail the various proceedings pending between the petitioner/husband and the 2 nd respondent/wife. O.P.(HMA) No.758/2012 for divorce preferred by the petitioner was allowed. An R.P(FC) No.244/2015 is now pending before this Court at the instance of the 2 nd respondent. M.C.No.144/2013 preferred by the 2 nd respondent seeking maintenance was allowed by the Family Court, Kollam. R.P(FC) No.176/2015 is pending before this Court against that Order, at the instance of the petitioner herein. O.P.No.774/2013 for recovery of gold ornaments preferred by the 2 nd respondent was allowed by the Family Court, Kollam. The said judgment is challenged before this Court, vide Mat.Appeal No.383/2015. Another Original Petition, O.P(Others) No.241/2016, in respect of a residential building of the petitioner, was decreed in favour of the petitioner, which is under challenge in Mat.Appeal No.42/2023 before this Court. The 2 nd respondent is presently residing in that building, whereas the petitioner, in a rented house. One another Original Petition, O.P(Money) No.739/2016 preferred by the defacto complainant was dismissed, which is under challenge before this Court as Mat.Appeal No.215/2023. Apart from the above litigation, the 2 nd respondent filed a Writ Petition before this Court as W.P(C) No.31117/2022 seeking initiation of immediate disciplinary action against the petitioner. Learned counsel would submit that in the wake of the above referred proceedings, the judgment in C.C.No.77/2013 is also liable to be suspended, along with the sentence thereof. Learned counsel relied upon a judgment of the Rajasthan High Court in Chuttan Lal v. State of Rajasthan and Another [ 2018 KHC 4767 ], wherein a conviction under Section 498A of the Penal Code was suspended, since it affects the retiral benefits of the petitioner, which would cause great hardship to him at the fag end of his life. The High Court also found that the deprivation of the pensionary benefits during the period of conviction cannot be undone, if the appeal is ultimately allowed. 6. This Application was seriously opposed by the learned counsel for the 2 nd respondent/wife. The main point espoused by the learned counsel is that the petitioner had not even complied with the Order in M.C.No.144/2013 properly, which directs payment of maintenance to the 2 nd respondent herein. 6. This Application was seriously opposed by the learned counsel for the 2 nd respondent/wife. The main point espoused by the learned counsel is that the petitioner had not even complied with the Order in M.C.No.144/2013 properly, which directs payment of maintenance to the 2 nd respondent herein. According to the learned counsel, a person, who refused to pay maintenance to his wife, is not entitled to any equitable considerations. It was pointed out that the children of 2 nd respondent are pursuing Engineering and Plus Two courses respectively and the petitioner is not providing for their educational needs, as well. Even the direction of this Court to pay Rs.2 lakhs within a period of one month was not complied with. Learned counsel relied on a judgment of the Hon'ble Supreme Court in State of Maharashtra v. Gajanan and another [ (2003) 12 SCC 432 ], in which case, the Supreme Court interfered with the judgment of the High Court staying the conviction. The Hon'ble Supreme Court found that the exceptional circumstances required for staying a conviction has not been taken note of by the High Court. 7. Having heard the learned counsel appearing for the respective parties, this Court finds little merit in the instant Crl.M.C. Primarily, this Court notice that the solitary prejudice, which is espoused by the petitioner, is a break in service on account of a possible disciplinary action against the petitioner on the strength of the judgment of conviction in C.C.No.77/2013. This aspect is clear from ground no.H in this Crl.M.C. No other serious hardship or prejudice is seen canvassed in this miscellaneous case. 8. This Court considered in detail the contours of suspending a judgment of conviction in Ramakrishnan v. Central Bureau of Investigation [ 2025 KHC OnLine 249 ]. This Court referred to (i) Rama Narang v. Ramesh Narang [ (1995) 2 SCC 513 ], (ii) State of Tamil Nadu v. A.Jaganathan [ (1996) 5 SCC 329 ], (iii) K.C.Sareen (supra), (iv) Gajanan (supra) [ (2003) 12 SCC 432 ], (v) Ravikant S.Patil v. Sarvabhouma S.Bagali [ (2007) 1 SCC 673 ], (vi) State of Maharashtra v. Balakrishna Dattatrya Kumbhar [ (2012) 12 SCC 384 ] and (vii) Afsal Ansari v. State of Uttar Pradesh [ (2024) 2 SCC 187 ] and found as follows in paragraph 13: “13. From a scan of the above referred precedents, the legal position is clear to the effect that, though a power to suspend the conviction can be read into Section 389(1) Cr.P.C, the same is always an exception and not a rule; and to avail the exceptional relief of stay of conviction, the applicant should demonstrate that irreversible consequences would follow, unless the conviction is suspended, which consequences could not be undone in future. Ordinary and trifling consequences, which necessarily flows from a judgment of conviction, are not reasons, which are legally recognisable to stay the conviction, for, recognition of such reasons would lead to a situation, where every conviction appealed against may have to be stayed, as found in A.Jaganathan (supra).” Again in paragraph no.16, it was found as following: “16. Having regard to the very prejudice which is seen espoused, that is to say, non-receipt of pension, this Court is of the opinion that the same cannot be regarded as an irreversible consequence, which cannot be undone in future. Instead, it is only one among the natural consequence, which flows from a judgment of conviction, which has been arrived at pursuant to the due process of adjudication. Needless to say that, the power to stay the conviction traceable to Section 389(1), is an exceptional power, to be exercised with great circumspection and caution. The applicant failed to establish/ demonstrate the extreme evil, which is likely to befall him, if the conviction is not suspended. Even in the context of an employee losing the job, the Honourable Supreme Court refused to suspend the conviction in Balakrishna Dattatrya Kumbhar (supra). So also, in A.Jaganathan (supra), the Honourable Supreme Court interfered with the order suspending the conviction, where the consequence espoused was deprivation of payment of stipend etc.....” 9. Analysed in the touchstone of the above referred settled parameters, this Court cannot find any exceptional circumstance, which warrants suspension of the judgment of conviction. No extreme evil, which will befall on the petitioner, if the conviction is not suspended, is espoused before me, except pointing out that disciplinary action is likely to be initiated against the petitioner, which may entail service break. As held in Balakrishna Dattatrya Kumbhar (supra) and A.Jaganathan (supra), a conviction is not liable to be suspended even in the context of an employee losing the job. As held in Balakrishna Dattatrya Kumbhar (supra) and A.Jaganathan (supra), a conviction is not liable to be suspended even in the context of an employee losing the job. It is true that the judgments afore referred deals with serious offences like the one under the Prevention of Corruption Act etc. and that in the instant case, the offence is one under Section 498A , read with Section 406 of the Penal Code . However, this Court is not persuaded to think lightly in respect of an offence under Section 498A , once it is proved in a court of law and the accused is convicted consequently. The same is the situation with respect to an offence under Section 406 . A perusal of Annexure-A2 judgment impugned would not reveal any serious and fundamental flaw, so as to suspend the conviction itself, treating the judgment as wholly and completely unsustainable, prima facie. As rightly found by the trial court, the instant judgment cannot be treated as one, where no material has been relied upon by the trial court, for arriving at the guilt of the accused, as held in Ajithkumar (supra). The existence of an arguable case, if any, is not sufficient enough to suspend the judgment of conviction itself. This Court cannot find any serious illegality or infirmity with respect to the impugned Annexure-A2 Order. The Crl.M.C. fails and and the same will stand dismissed accordingly.