Hari Shankar vs State Of Rajasthan

Applicant has moved the misc. stay application under Section 482 read with Section 389 of Cr.P.C. praying therein that the judgment of conviction dated 30.7.2003 passed by Additional Sessions Judge (Fast Track) No.2, Sikar Camp Neem Ka Thana be stayed.

It is contended by counsel for the appellant that the appellant is in Government service and presently working as a Chowkidar in Public Health and Engineering Department, and if the conviction order is not stayed, it will have adverse effect on his service.

Counsel for the applicant has placed reliance on "Rama Narang vs. Ramesh Narang" (1995) 2 SCC 513 and "Jagdish Prasad Vs. State of Rajasthan"2013 SCC onLine Raj. 450, "Bhagwan Singh vs. State" 2009 WLC 575, "Shivlal vs. State of Rajasthan" 2007 (3) RCC 1039, "Murarilal Vs. state of Rajasthan & Ors." 2009 (2) WLC 345 and "Navjot Singh Siddhu Vs. State of Punjab" (2007) 2 SCC 574.

Learned Public Prosecutor appearing on behalf of the State has argued that the judgment of conviction is not executable and it is only the order which is executable and, therefore, as per Section 389, the order alone can be suspended.

It is also contended that as per CCA Rules if a government employee is convicted, the State can dismissed him from service only on account of the conviction order. If the conviction is stayed, government will be forced to keep a convict on duty which will have serious repercussions and public faith would be lost if a convict is continued in job.

Learned Public Prsoecutor has placed reliance on "Suresh Khandelwal vs. State of Rajasthan" 2015 RCR (Criminal) 70 "Mahesh Kumar Dwivedi vs. State of Rajasthan" 2014 (8) RCR 78, "Omprakash Vs. State of Rajastahn" 2010 (3) RLW 2199, "Banwar Vs. State of Rajasthan" 2012 (1) RLW 843 and "Khemraj Vs. State of Rajasthan" 2009 (3) WLC Raj. 309, wherein the conviction order was not suspended by the High Court.

I have considered the contentions raised by the counsel for the parties.

Three Judges Bench of the Apex Court in "Rama Narang vs. Ramesh Narang" Case (supra) held as under:-

"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 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, although that issue in the instant case recedes to 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 Code 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 person 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 (sic or) 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 if appropriate, impose such conditions as are considered appropriate to protect the interest of the shareholders and the business of the company."

In the present case in hand applicant has come up with the specific case that he is an employee, if conviction is not stayed, it will adversely affect his service.

In "Jagdish Prasad Vs. State of Rajasthan" (supra) case, there was conviction under Section 306 & 498A and the appellant was working as LDC in the Education Department and has since retired but was denied pension on account of the conviction order.

I am of the view that once the consequences of conviction are made known to the Court, the Court is entitled to stay the conviction order.

The judgments of the High Court on which reliance has been placed by Public Prosecutor did not take note of the "Rama Narang vs. Ramesh Narang" case (supra), while disallowing the application for staying the conviction order.

Considering the fact that the appellant is an employee of the State, the offence alleged to have been committed by the appellant does not involve moral turpitude and if conviction of the accused appellant is not stayed in the present case then he would likely to loose the job.

Taking note of the fact that the disposal of appeal is likely to take time, the impugned judgment of conviction passed by the trial court qua the applicant shall remain stayed till disposal of this criminal appeal.