Subrat Kumar Mandal vs State of Chhattisgarh

V.K. Shrivastava, J.—Counsel for the appellant submits that he does not want to press I.A. No. 4656/2004.

Accordingly, I.A. No. 4656/2004 is dismissed as not pressed.

Heard on M.Cr.P. No. 3525/2004 for suspension of conviction.

Government Advocate for the State relying on Union of India (UOI) Vs. Atar Singh and Another, vehemently opposes the application for suspension of conviction whereas the appellant''s contention is that he has been convicted under Sections 332 and 506 Part II of the IPC and 146 of the Railway Act and sentences imposed on him have been suspended by this Court''s order dated 2-11-2004, now has been served with a notice by the Railway Authorities that because of the conviction as aforesaid he is disqualified to be kept in Government service, he is a Sub-Khalasi and the offences for which he has been convicted and sentenced are not related with his duties, therefore, the conviction which now disqualifies him as per Railway Authorities, for being kept in Government service be suspended so as to keep the disqualification in abeyance.

In the case of Rama Narang Vs. Ramesh Narang and Others, , it has been held that Section 389 confers a discretion on the Appellate Court to decide the question of suspension of a conviction.

In the present case, appellant is a Sub-Khalasi who has been put under suspension by Railway Authorities, has now been served with a notice stating that the said conviction rendered his further retention in public service, undesirable. The offences for which appellant has been convicted are not related with his duties. Appeal has already been admitted for hearing and sentences imposed on the appellant have also been suspended vide order dated 2-11-2004.

Section 389(1) of the Cr.PC reads as below :--

"Suspension of sentence pending the appeal; release of appellant on bail.-- 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".

Judgment includes two orders; one, holding conviction and another passing the sentence. u/s 389(1) of the Cr.PC, Appellate Court has been empowered to suspend the execution of sentence or order, therefore, if the order of conviction which is under appeal is to be suspended, in that case, criteria requires for it is that the said order of conviction must be executable. Normally, as a rule, no execution is made to the order of conviction, but as an exception where the conviction itself causes any disqualification, then the conviction becomes executable, and, therefore, in that condition the order of conviction can be suspended. Again the question arises whether only on the count of execution of the order of conviction, can the Appellate court stay its execution, the answer will be in negative. Section 389(1) of the Cr.PC casts a duty on the Appellate Court that the suspension should only be done canvassing the sufficient grounds in writing; it means only on assigning sufficient reasons in writing, the conviction can be suspended and granting stay mechanically or as of routine is prohibited.

Appellant, who is a public servant, has now been disqualified for service because of the conviction. The conviction against appellant is not a conviction, which affects the public at large, but it is a personal one, that apart the offences alleged against him are not the part and parcel of his public duties. Appellant holds a lower post in Railway and also is under suspension. Railway Authorities have communicated the fact that the conviction attaches disqualification for continuing his service. Therefore, the conviction order passed against him, being executable, can be suspended on fulfillment of other requirements, and I am of the opinion that, aforementioned all the facts fulfill the other requirements.

Taking into account all the facts, it is directed that the conviction under the impugned judgment is stayed till the disposal of the appeal on appellant''s furnishing a surety of Rs. 5,000/- (Rupees Five thousand) to the satisfaction of the Trial Court on the condition that the appellant should not commit any similar offence during the pendency of the appeal.

List the case for final hearing.