Allahabad High Court
Santosh Kumar vs State Of U.P. on 12 July, 2011
Bench: Rajiv Sharma, S.C. Chaurasia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 24
C. M. Application No. 42730 of 2010
in re:
Case :- CRIMINAL APPEAL No. - 836 of 2006
Petitioner :- Santosh Kumar
Respondent :- State Of U.P.
Petitioner Counsel :- Nagendra Mohan
Respondent Counsel :- Govt. Advocate,Rajesh Pandey
Hon'ble Rajiv Sharma,J.
Hon'ble S.C. Chaurasia,J.
Heard Mr.R.N.S. Chauhan, learned Counsel for the applicant and Mr. Umesh Verma, learned Additional Government Advocate.
The applicant-appellant has been convicted under Sections 302/34 IPC and sentenced to imprisonment for life and a fine of Rs.10,000/- vide judgment and order dated 29.4.2006. A default stipulation has also been mentioned therein.
On an appeal being preferred, under Section 374 (2) CrPC, an application for releasing the appellant, during the pendency of appeal, on bail was filed. The said application for grant of bail was considered and the bail was granted and in pursuance of the said order dated 3.5.2006, the appellant was released on furnishing bail bonds as directed by this Court.
Subsequently, the appellant's father while, working in the Prayogshala Sahayak (Prani Vigynan Vibhag) at MLK (PG) College, Balrampur, died on 15.2.2010 and as such, he moved an application for appointment under the provisions of Dying-in-Harness Rules, 1974 on 6.4.2010, on which the mother and younger brother of appellant endorsed that they have no objection in case the appellant is appointed in place of his father under the aforesaid Rules. The said application was considered by the Appointing Authority, i.e. Principal of the College and he was not offered appointment inter alia on the ground that he was convicted in Sessions Trial against which an appeal is pending adjudication in this Court and as such, the instant application has been preferred by him for suspending the conviction and sentence under Section 389 CrPc.
Mr. R.N.S.Chauhan, learned counsel for the applicant submits that after the death of his father, there is no one in the family to earn livelihood which comprises himself, his younger brother and mother and as such, he prays that the conviction and sentence, during pendency of appeal, may be suspended. In support of his submissions, learned counsel has relied upon the judgment of Hon'ble Apex Court in the case of Navjot Singh Sidhu v. State of Punjab and another [2007 Crl.L.J. 1427], whereby the Apex Court has suspended the conviction of the appellant.
With regard to suspension of conviction, Mr. Umesh Verma, learned Additional Government Advocate states that it is in the rarest of rare cases, conviction can be suspended, if there is any perversity recorded in the judgment of the Sessions Court while trying the said trial and passing the conviction order.
The only ground as shown by the appellant does not appeal to us as the appellant himself stated that in the family, there is widowed mother and the younger brother. That being so, they can claim appointment and the appellant cannot insist that he alone can be considered for appointment under the Dying-in-Harness Rules.
In case, the appellant could not be appointed in place of his father, due to some legal impediment, his younger brother can be considered, if he is otherwise eligible for appointment under Dying-in-Harness Rules and as such, the ground for suspending the conviction is not satisfactory. Even otherwise, on perusal of the provisions of 389 CrPC it reveals that if any person has been released on bail, sentence automatically remains suspended, as there is a mandatory provision to the said effect.
As regards the applicability of the Navjot Singh Sidhu's case, we may observe that the facts of the present case are clearly distinguishable as in that case the trial Court has acquitted the accused and the High Court, in reversal, found the accused guilty. It was in those circumstances that the Apex Court granted the stay of order of conviction and sentence in that case.
In Sanjay Dutt v. State of Maharasthra [2009 (2) SCC (Cri.) 920], the Apex Court held that the power of the Court under Section 389 CrPC shall be exercised only under exceptional circumstances.
In K.C. Sareen v. CBI Chandigarh [(2001) 6 SCC 584], the Apex Court noted as under:-
"11. The legal position, therefore, is this: though the power to suspend an order of conviction, apart from the order of sentence, is not alien to Section 389 (1) of the Code, its exercise should be limited to very exceptional cases. Merely because the convicted person files an appeal in challenge of the conviction the court should not suspend the operation of the order of conviction. The court has a duty to look at all aspects including the ramifications of keeping such conviction in abeyance. It is in the light of the above legal position that we have to examine the question as to what should be the position when a public servant is convicted of an offence under the PC Act. No doubt when the appellate Court admits the appeal filed in challenge of the conviction and sentence for the offence under the PC Act, the superior court should normally suspend the sentence of imprisonment until disposal of the appeal, because refusal thereof would render the very appeal otiose unless such appeal could be heard soon after the filing of the appeal. But suspension of conviction of the offence under the PC Act, dehors the sentence of imprisonment as a sequel thereto, is a different matter."
In the case of State of Haryana v. Hasmat [(2004) 6 SCC 175], the Apex Court observed that Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the appellate Court to record reasons in writing for ordering suspension of execution of the sentence or order appealed. If he is in confinement, the said court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine.
Above being propositions, we find no good ground to suspend/stay the conviction of the appellant. The application is hereby rejected.
As the appeal is of 2006, Registry is directed to prepare the paperbook within six months, if the same has not yet been prepared.
List the appeal in the first half of next year.
Order Date :- 12.7.2011
lakshman
