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Daya Shankar Rai & Another v. State Of U.P. - CRIMINAL APPEAL No. - 1365 of 2006 [2007] RD-AH 18445 (29 November 2007)

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Misc. Application for suspension of conviction No. 192600


Criminal Appeal No. 1365 of 2006

Daya Shanker Rai and another...................................Appellants


State of U.P. .........................................................Opposite party


Hon'ble Amar Saran, J.

The applicants-appellants have moved this application, for suspension of conviction, in the criminal appeal, wherein the appellants and others were convicted and sentenced inter alia to seven years rigorous imprisonment and a fine of rupees ten thousand each under Section 307 IPC.

It may be pointed out that earlier the appellants were enlarged on bail by my order dated 22.3.2006. At that time the sentence of the appellants was suspended, but no order had been passed suspending the conviction.

I have heard Shri Dharmendra Singhal, learned counsel for the applicants-appellants, Shri Shailendra Sharma, learned counsel for the complainant and learned Additional Government Advocate.

The appellants are seeking suspension of their conviction because it is urged that appellant-applicant No. 1 Daya Shanker Rai is a government servant and the department is taking action against him in view of the fact that his conviction has not been suspended.

Learned counsel for the appellants contends that an order of suspension of the conviction should invariably be passed and there is inherent power to stay the order of conviction under Section 389(1) of the Code of Criminal Procedure (hereinafter referred to as the Code).

Learned counsel for the appellants has referred to some authorities of the Apex Court for setting up the proposition that except for cases under the Prevention of Corruption Act, in other matters, the conviction should invariably be suspended when an appeal is filed.

He has further argued that in view of the fact that the conviction of the appellant-Daya Shanker Rai was not suspended, hence an order had been passed by the Manager of Janta Janardan Inter College, Ghazipur on 13.3.2006 suspending the appellant-Daya Shanker Rai, who worked as Assistant Clerk in the college in view of his conviction in the present case. The District Inspector of Schools, Ghazipur had approved of the suspension as the appellant Daya Shanker Rai had been in jail for over 48 hours as a result of the judgement of conviction by the trial court dated 9.3.2006. Thereafter on 19.8.2006 the DIOS, Ghazipur had reinstated the appellant Daya Shanker Rai on his job because the enquiry proceedings subsequent to his suspension had not been completed within four months.

However, as the Manager Rajesh Rai had filed a civil miscellaneous writ petition No. 46970 of 2006 against the order of reinstatement, the said order reinstating the petitioner was directed to remain stayed by an order dated 29.8.2006. It was against extended on 1.9.2006.

Learned counsel for the complainant and learned Additional Government Advocate, however, contended that in normal circumstances under Section389(1) Cr.P.C. only execution of sentence awarded is suspended as a precondition for granting bail and it is only in extraordinary and exceptional circumstances that an order of conviction is directed to be suspended and no such order directing suspension of conviction can be passed in ordinary course and it needs to be specifically pointed out by the applicant-appellant-Daya Shanker Rai as to what are the disqualifications that would entail if the conviction was not suspended for granting the extraordinary relief. The contention of the learned counsel for the appellants that it is only in matters involving offences under the Prevention of Corruption Act, the orders of conviction are not suspended is not correct.

Learned counsel for the complainant and learned Additional Government Advocate relied on certain decisions of the Apex Court in support of their contentions and I shall be considering the authorities by both the sides in the course of this order.

At the outset, it would be appropriate to peruse Section 389(1) of the Code, which is as follows:

" 389(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond. "

On a mere perusal of the aforesaid provision, it appears that the section principally contemplates suspension of execution of the sentence or order appealed against as a pre-condition for release of the appellant on bail, but it does not directly speak of suspension of conviction. In paragraph 11 in K.C. Sareen Vs. CBI Chandigarh, 201 SCC (Cri)1186, it has been observed as follows:

"No doubt when the appellate court admits the appeal filed in challenge of the conviction and sentence for the offence under the Prevention of Corruption Act, the superior court should normally suspend the sentence of imprisonment until disposal of the appeal, because refusal thereof would render the very appeal otiose unless such appeal could be heard soon after the filing of the appeal. But suspension of conviction of the offence under the prevention of Corruption Act, dehors the sentence of imprisonment as a sequel thereto, is a different matter.

But, it would be wrong to take the view that in no circumstance the conviction of the appellant can be suspended even if the appellant's counsel makes out proper conditions and indicates the serious disqualifications that an accused will have to entail if his conviction is not suspended.

The case which seems to have examined this controversy was Rama Narang Vs. Ramesh Narang and others, 1995 JIC 889 (SC). The said case makes a distinction between an order imposing a sentence or an order awarding compensation or imposing a fine or releasing an accused on probation, which are capable of execution and which if not suspended would be required to be executed by the authorities form an order of conviction, where on mere filing of the appeal, there is no unavoidable necessity for suspension of the order of conviction nor does the conviction automatically disappear by filing of the appeal and as it was rightly put in Rama Narang's case in paragraph 15 that "if that be so why seek a stay or suspension of the order?"

However, the said authority clarifies in paragraph 16 that in certain circumstances the order of conviction can be executable as it may incur certain disqualifications. In such case, the power under Section 389(1) of the Code could be invoked provided that the attention of the appellate court is invited to the consequences that would ensue if the order of conviction was not stayed and for which the court is obliged to record its reasons in writing.

In this connection, the following lines in paragraph 16 of Rama Narang's case may be usefully read:

"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 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'. If the attention of the Court is not invited to this specific consequence, which is likely to fall upon conviction how can it be expected to assign reasons relevant thereto? No one can be allowed to play hide and seek with the Court; he cannot suppress the precise purpose for which he seeks suspension of the conviction and obtain a general order of stay and then contend that the disqualification has ceased to operate. In the instant case if we turn to the application by which interim' 'stay' to the operation of the impugned judgement was secured we do not find a single word to the effect that if the operation of the conviction is not stayed the consequence as indicated in Section 267 of the Companies Act will fall on the appellant. How could it then be said that the Delhi High Court had applied its mind to this precise question before granting stay? That is why the High Court order granting interim stay does not assign any reason having relevance to the said issue. By not making a specific reference to this aspect of the matter, how could the appellant has persuaded the Delhi High Court to stop the coming into operation of Section 267 of the Companies Act? And how could the Court have applied its mind to this question if its pointed attention was not drawn? As we said earlier the application seeking interim stay is wholly silent on this point. That is why we feel that this is a case in which the appellant indulged in an exercise of hide and seek in obtaining the interim stay without drawing the pointed attention of the Delhi High Court that stay of conviction was essential to avoid the disqualification under Section 267 of the Companies Act. If such a precise request was made to the Court pointing out the consequences likely to fall on the continuance of the conviction order, the Court would have applied its mind to the specific question and if it thought that case was made out for grant of interim stay of the conviction order, with or without conditions attached thereto, it may have granted an order to that effect. There can be no doubt that the object of Section 267 of the Companies Act is wholesome and that is to ensure that the management of the company is not in solid hands. As we have pointed out earlier the Managing Director of the company holds a fiduciary position qua the company and its share-holders and, therefore, different consideration would flow if an order is sought from the Appellate Court for staying the operation of the disqualification that would result on the application of Section 267 of the Companies Act. Therefore, even on facts since the appellant had not sought any order from the Delhi High Court for stay of the disqualification he was likely to incur under Section 267 of the Companies Act on account of his conviction, it cannot be inferred that the High Court had applied its mind to this specific aspect of the matter and, therefore, granted a stay of the operation of the impugned judgement. It is for that reason that we do not find in the order of the High Court a single reason relevant to the consequence of the conviction under Section 267 of the Companies Act. The interim stay granted by the Delhi High Court must, therefore, be read in that context and cannot extend to stay the operation of Section 267 of the Companies Act."

For this reason, the learned Judges in Rama Narang's case held that the general order staying the operation of the order of the trial court by the High Court did not mean any stay of the order of conviction.

In the present case I also find that a general prayer for suspension of conviction has been made only by pointing out that the appellant being a government servant would be liable for departmental action unless the conviction was stayed and that as the appeal had been filed, the conviction should necessarily be stayed without indicating the specific disqualification that would ensue in the fact and circumstances of the present case unless the order of conviction was suspended.

In this context paragraphs 4 to 7 of the application of suspension of conviction may be usefully extracted:

"4. That since the appellant No. 1 is a Government Servant and Department is taking action against him on the score that the conviction was not suspended.

5. That the appeal is continuation of trial and appeal being a statutory remedy the guilt/conviction of the appellant is not yet finalized.

6. That in view of the matter and as per the decisions of the Hon'ble Supreme Court delivered in Rama Narang's case (1995)@ SCC 513 that the court has inherent power to suspend or grant interim stay the order of conviction under Section 389(1) of the Code.

7. That in these circumstances the order of conviction may be stayed during the pendency of the appeal. '

In State of Tamil Nadu Vs. A Jaganathan, JT 1996(6) SC 621, it was rightly clarified that as the moral conduct of the public servant comes in question when he is convicted of a criminal offence, which would affect the purpose of his duty, it would be wrong to stay the conviction because of some possible harm that an accused public servant could suffer if ultimately his revision or appeal was allowed as that would entail staying the conviction in every pending appeal or revision " by taking into consideration the trifling matters" and even when the harm could be undone by payment of arrears of salary, stipend etc. to the appellant in case of eventual acquittal.

In A. Jaganathan (Supra) the High Court's order suspending the conviction was set aside by the Apex Court because the High Court did not consider the moral conduct of the respondent, such as the fact that the respondent A. Jaganathan, who being attached as Inspector to a police station had eroded the confidence reposed in him and had been convicted under Sections 392/218/466 IPC, while the other public servants accused had been convicted under the provisions of Prevention of Corruption Act.

Thus, I think that the contention of learned counsel for the appellants that there could be a restraint on suspension of the conviction only in cases under the Prevention of Corruption Act is not correct. In other cases, which involve questions of moral turpitude, the order of conviction should not be stayed on the mere asking that they would entail some disqualifications for the accused.

In the present case I find that appellant No. 2, who is not said to be a public servant has even used a firearm and appellant No. 1 has also used a Lathi along with other accused and the other accused had been convicted under Section 307 IPC in the said incident. Five persons on the prosecution side have received a number of injuries including firearm injuries to the injured Arvind Rai.

The case Navjot Singh Sidhu Vs. State of Punjab and another, JT 2007 (2) SC 382, which has been relied upon by the learned counsel for the appellants-applicants is clearly distinguishable. In the said case the circumstances entailing the disqualification of the appellant Navjot Singh Sidhu unless the order of conviction was stayed, was clearly indicated. Thus, it was pointed out in the said case that when the High Court had set aside the judgement of acquittal by the trial court and sentenced Navjot Singh Sidhu and co-accused inter alia to three years RI and a fine under Section 304 part-II IPC on 6.12.2006 when Navjot Singh Sidhu was already a Member of Parliament, he could have avoided the disqualification mentioned in Section 8(3) of the Representation of People Act, 1951 for being chosen as a Member of Parliament for a period of six years, if after the conviction he had preferred an appeal within three months of the date of his conviction. Thereafter his disqualification would have been avoided until the appeal or application was disposed of by the Court. Sections 8(3) and 8(4) of the Representation of People Act may be usefully perused:

""8(3) A person convicted of any offence and sentenced to imprisonment for not less than two years (other than any offence referred to in sub-section (1) or sub-section (2) shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.

8 (4)Notwithstanding any in sub-section (1), sub-section (2) and sub-section (3) a disqualification under either sub-section shall not in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court."

However, on a moral ground the appellant Navjot Singh Sidhu had chosen to resign from his seat and thereafter he wished to seek fresh elections. It was in that background that the Apex Court had noted that it was a fit case for suspending the conviction although the Court observed that the power to stay convictions can only be exercised in exceptional circumstances. For the proposition that the said power is exercised in most exceptional circumstances, reliance was placed in Navjot Singh Sidhu's case on the cases of Ravi Kant S. Patil Vs. Sarvabhouma S. Bagali, JT 2006 (1) SC 578, State of Tamil Nadu Vs. A. Jaganathan, JT 1996 (6) SC 621, K.C. Sareen Vs. CBI, Chandigarh, JT 2001 (6) SC 59, B.R. Kapur Vs. State of Tamil Nadu and another, JT 2001 (8) SC 40 and State of Maharashtra Vs. Gajanan and another, JT 2003(10) SC 164. Whether failure to stay the conviction will lead to injustice and irreversible consequences is a question to be determined on the particular facts of the case. In Navjot Singh Sidhu's case observing how the incident had taken place, as a result of a sudden quarrel with the deceased and his companion over a minor road incident and where it was not even clear whether the solitary head injury on the deceased was the result of the fist blow of the appellant or due to fall and whether the deceased had died as a result of the abrasion sustained by him or because of his heart condition and whether on the circumstance, a case under Section 304 Part-II IPC was at all disclosed. It was after taking into account the overall conspectus of circumstances, that the Apex Court had stayed the conviction of the appellant Navjot Singh Sidhu.

In Hikmat Ali Khan Vs. Ishwar Prasad Arya, AIR 1997 SC 864, where an an advocate had been convicted in a case under Section 307 IPC for stabbing the opponent in court with a knife, it was described as an offence involved moral turpitude and the Supreme Court enhanced the punishment of removal from rolls of the Bar Council awarded by the U.P. Bar Council for three years for permanently removing the name of the said advocate from the rolls.

However, whether the present offence involves a question of moral turpitude or not so as to dis-entitle the appellant-applicant from reinstatement is a question, which will have to be gone into and decided by the appropriate authority in the departmental proceedings and it would be open to the applicant-appellant Daya Shanker Rai to canvass the said issue in Civil Misc. Writ Petition No. 45958 of 2006 if he is so advised against the order passed by the District Inspector of Schools, Ghazipur whereby the initial approval of the suspension had been given by the DIOS although in the said case the appellant was not given any interim relief or in Writ Petition No. 46970 of 2006 whereby the withdrawal of the suspension order by the DIOS dated 19.8.2006 had been stayed by the learned Single Judge.

I, therefore, find that the applicant-appellant has not been able to make out any good ground for obtaining an order suspending his conviction by the judgement and order dated 9.3.2006. Of course, it would be open to the appellant-applicant to move an application for expediting the appeal.

With these observations, this application is rejected.

Dated: 29.11.2007



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