Bedadyuti Samantaray vs State of Orissa

B.K. Nayak, J.—Heard Mr. S.P. Mishra, Learned Senior Advocate for the Appellant-Petitioner & Mr. Kanungo, Learned Additional Standing Counsel. This is an application u/s 389(1) of the Cr.P.C. filed by the Appellant-Petitioner for suspension of the conviction & sentence of the Petitioner as recorded by the Learned Additional Sessions Judge-cum-Special Judge, Jeypore in Criminal Trial No. 10/62 of 2010.

The Petitioner was tried in the aforesaid case for charges under Sections 498A/304B/306 of the I.P.C. & Section 4 of the D.P. Act for causing dowry death of his wife. By the impugned Judgment dated 26.02.2013, the Court below has convicted the Appellant-Petitioner for the said charges & sentenced him to undergo R.I. for eight years & to pay a fine of Rs. 10,000/-, in default to undergo R.I. for six months u/s 304B of the I.P.C., R.I. for five years & to pay a fine of Rs. 10,000, in default to undergo R.I. for six months u/s 306 of the I.P.C., R1. for one year & to pay a fine of Rs. 5,000, in default to undergo R.I. for three months under Section. 498A of the I.P.C. & R.I. for two months u/s 4 of the D.P. Act. All the substantive sentences have been directed to run concurrently.

It is stated by the Learned Counsel for the Petitioner that there is no acceptable evidence on record for convicting the Appellant for the offences as aforesaid & that the Appellant-Petitioner has fair chance of success in the criminal appeal. It is also stated that the Petitioner, who is a Government Servant & is working as a Clerk in Geological Survey Department at Koraput was on bail during trial & since the date of pronouncement of the Judgment by the Trial Court, he has been taken to jail custody. It is also stated that in view of the conviction of the Petitioner for the offences as aforesaid, the authorities of the Geological Survey Department are taking steps to terminate him from service.

It is the submission of the Learned Counsel for the Petitioner that unless the conviction & sentence of the Petitioner is stayed suspended, he will be terminated from service, which would cause grave injustice & hardship to the Petitioner. It is also submission that since the alleged act & conduct of the Petitioner that led to his conviction will have no adverse impact on his service environment, it is a fit case where the conviction & sentence imposed on the Petitioner should be stayed.

Learned Counsel for the Appellant-Petitioner has relied upon the decision of the Apex Court reported in Navjot Singh Sidhu Vs. State of Punjab and Another, that the Appellate Court can suspend an order of conviction where the convict specifically establishes the consequences that may follow if the operation of the order is net stayed.

The Learned Additional Standing Counsel, on the other hand, submits that since the Petitioner has been convicted for serious offences like dowry death & other allied offences, his conviction & sentence should not be stayed.

The Apex Court in the case of State of Maharashtra through CBI, Anti Corruption Branch, Mumbai Vs. Balakrishna Dattatrya Kumbhar, after taking into consideration all its previous decisions including the decision cited by the Learned Counsel for the Petitioner, observed as follows in paragraphs 6 & 10:

In Rama Narang Vs. Ramesh Narang and Others, this Court dealt with the said issue elaborately & held that if, in a befitting case, the High Court feels satisfied that the order of conviction needs to be suspended, or stayed, so that the convicted person does not have to suffer from a certain disqualification, provided for by some other statute, it may exercise its power in this regard because otherwise, the damage done cannot be undone. However, while granting such stay of conviction, the Court must examine all the pros & cons & then, only if it feels satisfied that a case has in fact been made out for grant of such an order, it may proceed to do so & even while doing so, it may, if it so consider it appropriate, impose such conditions as are deemed appropriate, to protect the interests of the other parties. Further, it is the duty of the applicant to specifically invite the attention of the Appellate Court as regards the consequences, which are likely to follow, upon grant of such stay, so as to enable it to apply its mind fully to the issue, since u/s 389(1), Cr.P.C., the Court is under an obligation to support its order in a manner provided therein, the same being, for the reasons to be recorded by it in writing,

In Ravikant S. Patil Vs. Sarvabhouma S. Bagali, this Court held as under:--

It deserves to be clarified that an order granting stay, of conviction is not the rule but is an exception to be restored to in rare cases depending upon the facts of a case. Where the execution of the sentence is stayed, the conviction continues to operate. But where conviction itself is stayed, the effect is that the conviction will not be operative from the date of stay. An order of stay, of course, does not render the conviction non-existent, but only non operative. All these decisions, while recognizing the power to stay conviction have cautioned & clarified that such power should be exercised only in exceptional circumstances where failure to stay the conviction, would lead to injustice & irreversible Consequences.

In summing up, the Apex Court in paragraph-12 of the Judgment in the case of Balakrishna Dattatrya Kumbhar (supra) observed as follows:

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 & 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 & examined whether the facts & 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, 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.

The Proposition that emerges from the decisions of the Apex Court is that the power to stay conviction in terms of Section 389(1), Cr.P.C. should be exercised only in exceptional circumstances where failure to stay the conviction would lead to injustice & irreversible consequences.

During course of hearing, Learned Counsel for the Petitioner has brought to the notice of this Court. Rules 15 & 16 of the Orissa Civil Services (Classification, Control & Appeal). Rules, 1962 which provide for procedure of framing definite charges & giving the delinquent opportunity of hearing in an enquiry for any misconduct of a delinquent government servant for the purpose of imposing punishment on him. However, in line with the 2nd proviso to Clause (2) of Article 311 of the Constitution of India, Rule 18 of the Orissa Civil Services (Classification, Control & Appeal) Rules, 1962 inter alia provides that notwithstanding anything contained in Rules, 15, 16 & 17 of the said Rules, where a penalty is imposed on a Government Servant on the ground of conduct which has led to his conviction on a criminal charge, the disciplinary authority may consider the circumstances on the case & pass such order as deemed fit. There is no denial of the fact that on the basis of conviction of a government servant in a criminal charge, the disciplinary authority can terminate the service of the government servant in terms of Rule 18 of the Orissa Civil Services (Classification, Control & Appeal) Rules, 1962 read with the second proviso of Clause (2) of Article 311 of the Constitution of India.

It is, therefore, clear that in view of the conviction of the Petitioner by the present impugned Judgment, he runs the risk of termination of his service without any inquiry & without being afforded any opportunity of hearing. By no means the Petitioner will be able to avoid this evil when his employer/the disciplinary authority wishes to proceed in the manner.

On going through the impugned Judgment arid the copy of the depositions of the prosecution witnesses, it is found that admittedly the deceased-wife of the Petitioner was working as an A.N.M. at Aramanda Malkangiri Centre where she was staying in a rented house whereas the Petitioner, Who is working as a Clerk in the Geological Survey Department was staying in his house at Koraput & that the deceased committed suicide inside his rented house at her work place by bolting the door from inside while the Petitioner was at Koraput. On going through the evidence, this Court is of the prima facie view that the Petitioner has strong arguable points in his favour & a fair chance of success in the appeal. There is little chance of the appeal being taken up for hearing in near future as large number of criminal appeals of more than 15 to 20 years old are still pending. In case, the order of conviction & sentence is not stayed, the Petitioner would be terminated from service which will lead to injustice & irreversible consequence. On the other hand, continuance of the Petitioner in his service may not have any adverse or deliberating impact so far as his office is concerned.

In the aforesaid facts & circumstances, I am of the view that it is a fit case where the conviction & sentence of the Petitioner should be suspended. Accordingly the order of conviction & sentence of the Petitioner imposed by the impugned Judgment is stayed pending disposal of the criminal appeal.

The misc. case is disposed of.