JUDGMENT Malik Sharif ud Din, J.
(1) S.M. Malik was one of the persons who was convicted for an offence under Sections 306/34 Indian Penal Code and was sentenced to undergo to five years imprisonment and to the payment of fine of Rs. 5.000.00 . This was done by the order of conviction dated 24th of February 1987 followed by an order of sentence dated 27th of February,1987. The appeal filed by the appellant/non-applicant herein was admitted and by an order dated 6th of April 1987 this court further ordered that the conviction and sentence shall remain suspended pending appeal and also stayed the payment of fine.
(2) I would like to make mention at this stage that the State which is party to the appeal and had initiated the prosecution against the non-applicant S.M. Malik and others has no grievance. The grievance now made is by employer of the convict S.M. Malik who along with others has preferred this the appeal. Mr. Mathur has raised a preliminary objection, that the applicant Bharat Heavy Electricals Ltd has no locus standi to intervene and file this application. Mr. Mathur's reliance is on Section 301 of the Code of Criminal Procedure. I would like to make it dear that the applicant herein is, as is asserted by it, the affected parly by the order and that is how it has filed the present application under Section 482 Criminal Procedure Code . The objection raised by Mr Mathni, therefore, to me does not appear to be fair as the applicant herein is not intervening in the mailer on the merits or demerits to the order of conviction and sentence against which the appeal is pending before this court.
(3) The applicant-Bharat Heavy Electricals Ltd. by this application under Section 482 Criminal Procedure Code . has made a grievance that this court while admitting the appeal could only suspend the sentence and not the conviction arid the expression "conviction" in the order dated 6th of April 1987 has appeared due to some mistake. He, therefore (4) Before I deal with the point in issue, I may give some facts in respect of certain developments that took place between the filing of the present application and the date on which the order was passed by this court after admitting the appeal. Shri S M. Malik filed a writ petition before a Division Bench of this Court bearing No. 2482 of 1987 which was admitted and the Division Bench further passed an interim order to the effect that since the conviction has been suspended he will be treated under suspension and will be entitled to the subsistence allowance payable under the rules to the suspended employees. It was also directed by the Division Bench that if ultimately the petition is dismissed the petitioner/non-applicant herein will be bound to refund the amount of suspension allowance earned by him during this period. The applicant who has now made a grievance before this court went in appeal under Article 136 of the Constitution of India to the Supreme Court by special leave which the Supreme Court declined to grant by its order dated 16th of January 1989 after observing that the "special leave petition being directed against an interim order we are not inclined to interfere in this matter". It further observed that "the High Court is, however, requested to dispose of the writ petition as expeditiously as possible". I am making a mention of this fact that the order which is sought to be rectified now was before the Supreme Court but it did not go into the merits and only disposed of the special leave petition on the ground that it is not inclined to go into the interim order.
(5) Mr. Panjwani's contention in the first place is that the expression 'conviction' appearing in the order dated 6th of April 1987 is by mistake and. therefore, needs to be rectified. In the alternative he says that Section 389 Cr P.C. does not invest the court with the power to suspend the conviction and the expression 'order' used in the said section is only in respect of the suspension order of fine, if any. Mr. Panjwani has also submitted written arguments which on the face of it is in respect of the construction of the provisions of the statutes and the approach that is to be adopted in doing so. According to Mr. Panjwani, the court is not entitled to suspend the conviction which can only be wiped out in case the appeal is allowed and that it can neither be confirmed nor set aside.
(6) This Mr. Mathur has vehemently controverter and I do agree with Mr. Mathur that the contentions of Mr. Panjwani cannot be accepted for the following reasons.
(7) An appeal against conviction to this court lies under Subsection (2) of Section 374 Criminal Procedure Code . which clearly shows that any person convicted on trial in which a sentence of imprisonment has been passed against him can prefer an appeal. The provision clearly lays down that the appeal will lie against conviction, I am making a reference to the provision simply with a view to ascertain whether this court has the power to suspend the conviction and, in my view, after the order of conviction is passed if a person were to file an appeal against the conviction in which a sentence of more then 7 years could be passed this court would be entitled to suspend the conviction. This position is supported by a decision of the Supreme Court in Retii Deenbandhu and others v. State of Andhra Pradesh, (1977) 1 Supreme Court Cases 742 wherein the Supreme Court has held that a person who has been convicted and sentenced while in appeal also wants the other evil consequences following his conviction not to visit him as also to wipe out the stigma that sticks to him. In another case" Workmen, UP. State Electricity Board and another v. Upper Ganges Valley Electricity Supply Co. and Others, Indian Factories and Labour Reports, 1966 Vol. 12 page 231, a Constitution Bench of the Supreme Court went to the extent of observing that after an appeal is admitted and bail is granted there is no final judgment against the appellant. I am making a reference to these observations with a view lo indicate that even if the court were to simply pass an order slating that the order under appeal is suspended without explaining whether it relates to sentence or both sentence and conviction, the position that would evolve would be that there would be no final judgment either in respect of the conviction or sentence in existence against the appellant.
(8) That apart, there are three categories of cases in which an appeal under Section 386 Criminal Procedure Code . lies and these are the appeals against the order of acquittal, appeal against the order of conviction and an appeal for the enhancement of the sentence. The appeal is also provided from any other. In effect, this provision would show that the appeal lies against a conviction and the appellant before me is in fact the person who has been convicted and the appeal has been filed against his conviction and sentence.
(9) Now adverting to the contention of Mr. Panjwani in respect of the principles regarding construction of statutes, I may at once point out that the question of construction of statute would only arise if the language is ambiguous and needs to be subjected to interpretation. A reference to the provisions of Section 389 Criminal Procedure Code . would clearly show that the appellant court for the reasons to be recorded in writing is fully empowered to order the suspension of the execution of sentence as also the suspension of the order appealed against. In the present case the order appealed against is the order of conviction by the appellant S.M. Malik which order has been suspended by the court. It cannot, therefore, be said that the expression 'conviction' appearing in the order dated 6th of April 1987 is by mistake or has occurred due to some clerical or typing mistake. The question of rectifying the same or deleting the expression, in my view, as such does not arise. With these observations I record my disagreement with the manner of reading the provision of Section 389 Criminal Procedure Code . by Mr. Panjwani and hold that the provision docs entitle the court to suspend even the order of conviction against which the appeal has been preferred. The application (Cr.M. 56/89) shall stand disposed of.