Allahabad High Court
Shyam Narain Pandey vs State Of U.P. on 7 August, 2013
Bench: Dharnidhar Jha, Pankaj Naqvi
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved
Court No. - 42
Criminal Misc. Application No.17550 of 2013
IN
CRIMINAL APPEAL No. - 3239 of 2012
Appellant :- Shyam Narain Pandey
Versus
Respondent :- State Of U.P.
Counsel for Appellant :- Rajeev Misra
Counsel for Respondent :- Govt. Advocate,Rahul Mishra,Rajeev Upadhyay
Hon'ble Dharnidhar Jha,J.
Hon'ble Pankaj Naqvi,J.
(Delivered by Hon. Shri Pankaj Naqvi,J)
1. This is an application under Section 389(1) of the Code of Criminal Procedure seeking stay of the judgment of conviction dated 7.8.2012 passed by Additional Sessions Judge (Court No.2), Azamgarh in Sessions Trial No.435 of 2006.
2. The prosecution alleged that a written report dated 28.2.2006 was lodged at about 6 P.M, alleging that the informant (son) was waiting for his father at Kesari Chauraha, Atraulia who was to come from Azamgarh. As the father alighted from the bus and proceeded towards his house alongwith the informant, the accused persons namely Rajesh Kumar, Pawan Kumar alias Babloo, Amit Kumar Pandey, Umesh and Ramesh alighted from a Bolero Jeep possessing arms and gheraoed his father. While Rajesh Kumar, Pawan Kumar alias Babloo and Amit Kumar fired shots from their respective weapon at the father of the informant, Laxmi Narain Pandey and Shyam Narain Pandey (present applicant) who were inside the vehicle exhorted the other accused persons not to spare the father of the informant, so much so that he should forget what "principalship" is all about. The father of the informant died at the spot. Shyam Narain Pandey, the applicant was tried alongwith other accused persons in S.T. No.435 of 2006 for charges under Section 147,148,149,302,120B, 504 and 506 IPC read with Section-7 Criminal Law Amendment Act. Similarly other accused persons too were tried in the two other connected Sessions Trial No.436 of 2006 and 437 of 2006 purporting to be under Section 3/25 of the Arms Act. The trial court vide its judgment of conviction and order of sentence dated 7.8.2012 in Sessions Trial No.435 of 2006 convicted the applicant for charges under Sections 147,148,302/144 IPC, read with Section 1208 IPC, and sentenced him alongwith others to undergo rigorous imprisonment with Rs.1,000/- fine under Section 147 IPC and in default one month additional rigorous imprisonment; two years R.I. with Rs.3,000/- as fine under Section 148 IPC and in default one year additional R.I.; six months R.I under Section-7 Criminal Law Amendment Act and life imprisonment with Rs.25,000/- fine under Sections 302/149 and 120B IPC and in default three months additional R.I. All these sentences were to run concurrently.
3. Challenging the aforesaid judgment of conviction and sentence, the applicant Shyam Narain Pandey filed Criminal Appeal No.3239 of 2012 before this court. This court while admitting the appeal on 29.8.2012 was pleased to pass the following order:
29.8.2012 "Heard Sri Rajeev Mishra, learned counsel for the appellant as also Sri A.N.Mulla, learned AGA for the State. We have also heard Sri Viresh Mishra,learned Senior Counsel assisted by Sri Rahul Mishra, Advocate appearing on behalf of the informant.
This appeal shall be heard.
Call for lower court record of Sessions Trials No. 435 of 2006, 436 of 2006 and 437 of 2006 from the court of Additional Sessions Judge, Court No. 2, Azamgarh, which must be made available in a maximum period of four weeks.
As regards the prayer for bail, the submission is that the present appellant Shyam Narain Pandey along with the other convict Laxmi Nagain Pandey were alleged in the FIR as also in the evidence that they were sitting in a vehicle and were remonstrating from there, the shots whereupon were fired by three others.
Regard being had to the submissions, let appellant Shyam Narain Pandey be released on bail, during pendency of appeal, on furnishing a bond of Rs. 20,000/- with two sureties of the like amount each to the satisfaction of the learned Additional Sessions Judge, Court No. 2, Azamgarh in connection with the Sessions Trial No. 435 of 2006, 436 of 2006 and 437 of 2006.
As regard sentence of fine imposed upon the above noted appellant, realization thereof shall remain stayed."
4. Subsequently the applicant filed a Civil Misc. Modification Application No.307101 of 2012 for seeking a modification of the aforesaid order dated 29.8.2012 passed by this court. The said application came to be dismissed on 26.4.2012 as being misconceived. Thus in these circumstances the present applicant has filed an application under Section 389(1) Cr.P.C. for seeking stay of judgment of conviction dated 7.8.2012 passed by the court below.
5. It is contended by Shri Rajeev Misra, learned counsel for the applicant that as the applicant is a regularly selected Principal of the college who had incurred the wrath of the Manager of the institution and the applicant has been falsely implicated in the alleged murder of the said Manager. He submits that the evidence against him is only of exhortation in view of statement of P.W-1 and P.W.2 who are not independent witnesses. He finally submits that absence of stay of conviction would deprive him from the post and the emoluments attached to the post which could not be compensated.
6. Shri A.K.Srivastava, learned A.G.A. and Shri Rahul Mishra, learned counsel for the informant vehemently contended that as the applicant has been found to be a member of an unlawful assembly and his role was that of an instigator, he has been rightly convicted for the charged offences. They further submit that applicant has not been able to establish any extraordinary circumstance or any irretrievable injury, which may impel this court to suspend his conviction.
7. To analyse rival contentions it would be apposite to refer to Section 389 of Cr.P.C. which provides for suspension of sentence pending the appeal and release of appellant on bail, which is quoted hereunder:
S.389. Suspension of sentence pending the appeal; release of appellant on bail.- (1) 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.
[Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing, against such release:
Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.]
(2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto.
(3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,-
(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or
(ii) where the offence of which such person has been convicted is a bailable one, and he is on bail,
order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub- section (1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.
(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.
8. A perusal of Clause (1) of Section 389 would manifest that upon an appeal having been filed by a convicted person, the appellate court has power for reasons to be recorded in writing to either suspend the execution of the sentence or order appealed against, i.e, the judgment of conviction and if the applicant is in confinement, he may be ordered to be released on bail. It is not axiomatic that on mere filing of appeal by a convicted person, an order of suspension both against conviction and sentence is to automatically follow. Sentence is consequent upon conviction, thus when accused is released on bail, the effect is that the sentence stands suspended. However, conviction by itself amounts to nothing unless it has given rise to a sentence. However, there may be myriad situations where conviction itself may befall as a disability on a convict, as he may acquire a disability under a statute or a claim that in the event of conviction not being stayed he would suffer irretrievable injury which could not be compensated in the event of success of the appeal.
9. The Apex Court in the case of Ravikant S. Patil vs. Sarvabhouma S.Bagali 2007 (1) SCC 673 while interpreting Section 389 (1) Cr.P.C. held as under;
13. One of the questions that was examined in that case was whether the power under Section 389(1) of the Code could be invoked to stay the conviction. This Court held that an order of conviction by itself is not capable of execution under the Code of Criminal Procedure, but in certain situations, the order of conviction can become executable in a limited sense, inasmuch as it may result in incurring of some disqualification under other enactments; and that in such cases, it was permissible to invoke the power under Section 389(1) of the Code for staying the conviction also. We extract below the reasoning for such a conclusion, given by this Court (SCC p.527, para 19):
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 Coda if the power was not to be found in Section 389(1) of the Code.
14. This Court, however, clarified that the person seeking stay of conviction should specifically draw the attention of the appellate court to the consequences that may arise if the conviction is not stayed; and that unless the attention of the court to the specific consequences that are likely to fall upon conviction, the person convicted cannot obtain an order of stay of conviction. In fact, if such specific consequences are not brought to its notice, the court cannot be expected to grant stay of conviction or assign reasons relevant for staying the conviction itself, instead of merely suspending the execution of the sentence. In that case, it was found on facts that the appellant therein had not specified the disqualification he was likely to incur under Section 267 of the Companies Act, if his conviction was not stayed. Therefore, this Court refused to infer that the High Court had applied its mind to this specific aspect of the matter and had thereafter granted stay of conviction or the operation of the impugned judgment. Consequently, the order of stay was not construed as a stay of conviction.
15.It deserves to be clarified that an order granting stay of conviction is not the rule but is an exception to be resorted to in rare cases depending upon the facts of a case. Where the execution of the sentence is stayed, the conviction continues to operate. But where the conviction itself is stayed, the effect is that the conviction will not be operative from the date of stay. An order of stay, of course, does not render the conviction non-existent, but only non-operative. Be that as it may. Insofar as the present case is concerned, an application was filed specifically seeking stay of the order of conviction specifying that consequences if conviction was not stayed, that is, the appellant would incur disqualification to contest the election. The High Court after considering the special reason, granted the order staying the conviction. As the conviction itself is stayed in contrast to a stay of execution of the sentence, it is not possible to accept the contention of the respondent that the disqualification arising out of conviction continues to operate even after stay of conviction.
16.2 In State of Tamil Nadu v. A. Jaganathan the State challenged the order of the High Court which had granted suspension of the conviction as also the sentence, relying on Kama Narang (supra). This Court held that the principle laid down in Ram Narang (supra) was that conviction and sentence can both be suspended only if non-grant of suspension of conviction would result in damage which could not be undone if ultimately the appeal/revision was allowed. On facts, it was found that even if stay of conviction was not granted, no prejudice would be caused to the convicted person, having regard to the fact that when the revisions against the conviction and sentences were ultimately allowed, the damage, if any, caused to the respondents therein with regard to payment of stipends etc. could well be revived and made good to the them. This Court noted that if such trifling matters involving alight disadvantage to the convicted person were to be taken into consideration, every conviction would have to be suspended pending appeal or revision. It was further noted that the High Court did not consider at all the moral conduct of the respondents inasmuch as the respondent Jaganathan who was a Police Inspector had been convicted under Sections 392, 218 and 466 IPC, while the other respondents who were also public servants had been convicted under the provision of Prevention of Corruption Act. Under those circumstances, the discretion exercised by the High Court in suspending the conviction was reversed.
16.5 All these decisions, while recognising the power to stay conviction, have cautioned and clarified that such power should be exercised only in exceptional circumstances where failure to stay the conviction, would lead to injustice and irreversible consequences.
10. Yet another oft quoted decision is that of Navjot Singh Siddhu vs. State of Punjab 2007 (2) SCC 574. Navjot Singh Siddhu was acquitted by the trial court for charges under Section 302 and 323/34 IPC but on appeal the High Court set aside the acquittal and convicted him for Section 304 (II) IPC and was sentenced to 3 years R.I and fine of Rs.One lac. As he was a sitting member of parliament he took a moral ground, resigned from his seat but expressed a desire to seek a fresh mandate from the electorate on an appeal before the Apex Court preferred by him against his conviction. The Apex Court on the facts and circumstances of the case suspended the order of conviction as against him. The said case was again considered in the case of Sanjay Dutt vs. State of Maharashtra 2009 (5) SCC 787 but the Apex Court declined to suspend the judgment of conviction against Sanjay Dutt as he was charged for various provisions under the TADA Act and the Arms Act and the court came to the conclusion that there was no extra ordinary or exceptional circumstance which may warrant a suspension of his conviction. There is yet another recent decision of the Apex Court in the case of State of Maharashtra vs. Balakrishna Dattatrya Kumbhar 2012 (12) SCC 384 wherein all the previous decisions pertaining to the power of the appellate court to stay the order of conviction were considered and the court opined that it is only in an exceptional case that an order of conviction can be put to abeyance. Paragraph 15 of the said judgment is extracted hereunder:
15. Thus, in view of the aforesaid discussion, a clear picture emerges to the effect that, the Appellate Court in an exceptional case, may put the conviction in abeyance along with the sentence, but such power must be exercised with great circumspection and caution, for the purpose of which, the applicant must satisfy the Court as regards the evil that is likely to befall him, if the said conviction is not suspended. The Court has to consider all the facts as are pleaded by the applicant, in a judicious manner and examined whether the facts and circumstances involved in the case are such, that they warrant such a course of action by it. The court additionally, must record in writing, its reasons for granting such relief. Relief of staying the order of conviction cannot be granted only on the ground that an employee may lose his job, if the same is not done.(emphasis supplied)
11. The sum and substance of the aforesaid discussion is that, no doubt the appellate court has the power to grant even stay of conviction but then such a power is to be exercised with extreme caution and circumspection and not in a routine or a mechanical manner. While suspending the order of conviction the court is to take a pragmatic view and merely because the convict is to suffer some pecuniary loss or would not be able to perform his job are not the extraordinary or exceptional reasons to suspend conviction. The applicant will have to demonstrate that in the event of refusal to stay the order of conviction he would suffer irretrievable injury which could not be compensated in the event of success of the appeal.
12. Reverting to the facts of the present case we find that the appellant has been convicted for a heinous offence under Sections 147,148, 302/149 read with 120 B IPC and Section 7 of Criminal Law Amendment Act. We have scanned the evidence which appears against the present applicant Shyam Narain Pandey at page-212 of the paper book and we find that P.W.1 Atul Tripathi (son of the deceased) and P.W.-2 Raj Kumar Tewari have been held to be reliable and credible witnesses. Both these witnesses have stated that the deceased Rajendra Prasad Tripathi had come to the office of the District Inspector of School, Azamgarh for collecting answer scripts of the examination. P.W.-1 (informant) had accompanied him. As P.W.-1 had finished his work he was told by his father Shri Rajendra Prasad Tripathi to wait for him at Kesari Chauraha, Atraulia at around 6 P.M. as he would be returning with the answer scripts. It was stated by P.W-1 that no sooner the father of the informant alighted from the bus at the crossing around 6 P.M and while he was heading towards the tea stall of Ramu Singh, the accused persons came in a Bolero vehicle in which Rajesh Kumar, Amit, Babloo alias Pawan, Ramesh Kumar Pandey and Umesh Kumar Pandey all armed with country made pistols alighted from the vehicle and gheraoed his father, whereas Babloo alias Pawan, Rajesh,Amit, Ramesh and Umesh fired shots at his father and two persons i.e. Laxmi Narain Pandey and Shyam Narain Pandey (applicant) were instigating the accused persons that his father should not be spared. Plea of alibi has been repelled. Thus there was a definite allegation of exhortation which is established from the testimony of P.W1 and P.W2 who have been held to be trustworthy witnesses and the court below was convicting the applicant for the offences charged.
13. As held by the Apex Court in the case of State of Maharashtra vs. Balakrishna Dattatrya Kumbhar (Supra) loss of wages in itself is not a ground to warrant stay of conviction. No doubt several litigations are pending between the parties as regards the office of "principalship" of the institution but we dare not comment about the same in the present proceedings.
14. Considering the facts and circumstances of the case we are of the considered view that the application is devoid of merits and the same is dismissed. However, observations made by us are only for the purpose of the present application and the same would not prejudice the applicant at the hearing of the appeal.
Order Date :- August 2013
RS
(Pankaj Naqvi,J) (Dharnidhar Jha,J)
