Masi vs State by Inspector of Police

G.M. Akbarali, J.—The petition is filed seeking a direction to set aside the unnumbered Crl. M.P. Dated 30.7.2010 and to direct the learned Principal District and Sessions Judge, Chengalpattu, Kancheepuram District to suspend the conviction imposed on the Petitioner by the learned Judicial Magistrate No. I, Chengalpattu, Kancheepuram District made in CC No. 21/2004 by judgment dated 21.5.2010 till the disposal of the appeal filed in CA No. 35/2010 on the file of the learned Principal District and Sessions Judge, Chengalpattu.

The Petitioner herein was convicted for the offence punishable u/s 498(A) IPC by the learned Judicial Magistrate No. I, Chengalpattu and sentenced to undergo two years rigourous imprisonment and fine of Rs. 500/-with default clause. The Petitioner has preferred an appeal in CA No. 35 of 2010 before the learned Principal District and Sessions Judge, Chengalpattu. He filed an application to suspend the sentence in Crl. M.P. No. 1785 of 2010 and the same was ordered on 28.5.2010. He had also filed an application to suspend the conviction. The learned Sessions Judge returned the application with an endorsement "already sentence suspended till the disposal of the appeal". Therefore, the Petitioner has approached this Court u/s 482 of Criminal Procedure Code. The relief claimed in this appeal to set aside the docket order passed in the unnumbered Crl. M.P dated 30.7.2010.

Mr. T.R. Ravi, the learned Counsel for the Petitioner submitted that the Petitioner is working as Sepoy in the Custom Department of Chennai and he was issued with a Show Cause Notice dated 20.7.2010 wherein he was called to make representations that why he should not be removed from service under the Central Civil Services Rules 1965. The learned Counsel pointed out if the conviction is not set aside, the Petitioner would face the consequence of removal from service. The learned Counsel further submitted that the Petitioner has a fair chance of getting an acquittal in the appeal.

The learned Counsel for the Petitioner relied on a judgment reported in CDJ 2006 MHC 585, wherein this Court has upheld the order passed by the trial court in suspending the conviction. The learned Counsel also relied on a judgment reported in 2007 1 MLJ 623 Navjot Singh Sidhu v. State of Punjab and Anr., wherein, the Apex Court has held as follows:

Sub-section (1) of Section 389 says that 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 or bail, or on his own bond. This Sub-section confers power not only to suspend the execution of sentence and to grant bail but also to suspend the operation of the order appealed against which means the order of conviction....

The learned Counsel also relied on a decision reported in 2007 1 MLJ 865 Ravikant S. Patil v. Sarvabhouma S. Bagali, wherein the Apex Court has held as follows:

The question whether an order of conviction can be stayed, in the absence of a specific provision for such stay in the Code, came up for consideration before this Court in Rama Narang Vs. Ramesh Narang and Others, . In the said case, the order that had been passed, while admitting the appeal, by the High Court purporting to be one u/s 389(1) of the Code was to the following effect:

Accused be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/-with one surety in the like amount to the satisfaction of the trial Judge. The operation of the impugned order shall remain stayed.

The learned Counsel also relied on an unreported judgment of Crl.A.171 of 2010 by a single Judge of this Court dated 29.4.2010, wherein, in a similar circumstances, this Court has suspended the conviction.

The learned Additional Public Prosecutor submits that exercising the power to suspend the conviction should be applied in the rarest cases and the present case does not fall into the category.

Heard both sides and perused the materials available on the

The Petitioner was charged for the offence punishable under record. Section 498(A) IPC The wife of the Petitioner had complained against the Petitioner for cruelty. Relying on the evidence of the wife the learned Judicial Magistrate has convicted the Petitioner and passed sentence as stated above. The appeal is pending.

Admittedly, the Petitioner is working as Sepoy in Customs House. Since he was convicted on a criminal offence and has been awarded a sentence of three years R.I., the Joint Commissioner of Customs (Personnel and Vigilance), has proposed to impose a penalty under Rule 19 of the Central Civil Services (Classification, Control and Appeal), Rules 1965. A show cause notice dated 20.7.2010 has been issued on the Petitioner. Indisputably, if the conviction is not set aside or suspended, the authorities shall impose the penalty which will result into dismissal from service. This Court by order dated 29.4.2010 in Crl.A.171 of 2010 has held as follows:

In the decision of the Hon''ble Supreme Court reported in 1995 1 LW 86 Rama Narang v. Ramesh Narang and Ors., it is observed as follows:

...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 u/s 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 others statue. 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 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 it appropriate, impose such conditions as are considered appropriate to protect the interest of the shareholders and the business of the Company" Following the above judgment this Court has suspended the conviction.

In the present case, the Petitioner had filed an application u/s 389(1) of Code of Criminal Procedure before the learned Principal and Sessions Judge, Chengalpattu to suspend the conviction. The said petition has been returned with the above said endorsement. The learned Sessions Judge could have passed an order on the above said petition after taking it on file. Though the prayer in the present petition is to set aside the docket order, I am of the considered view, this Court is empowered to exercise its power u/s 482 Code of Criminal Procedure to exercise the power u/s 389(1) of Code of Criminal Procedure A bare reading of Section 389 would show that the execution of the sentence pending appeal can be suspended by the appellate court. In certain situations, the order of conviction become executable and it may result in incurring some disqualification under any other enactments, the court can suspend the conviction also. In those circumstances, it is well settled that the High Court can invoke the power u/s 389(1) of Code of Criminal Procedure for staying the conviction also. In the present case, if the conviction is not suspended, the Petitioner may lose his job. The dispute is one of matrimonial and there may be some chances for re-union also.

Though a limited prayer is sought for in this petition, while exercising power u/s 482 Code of Criminal Procedure a larger relief can also be granted by this Court. Therefore, I am satisfied that this Court can exercise its power to suspend the conviction passed by the learned Judicial Magistrate in CC No. 21/2004.

In the result, the petition is allowed and the order of conviction passed against the Petitioner by the learned Judicial Magistrate I, Chengalpattu in C.C. No. 21 of 2004 dated 21.5.2010 is suspended till the appeal is disposed of in C.A. No. 35 of 2010, pending on the file of the learned Principal District and Sessions Judge, Chengalpattu.