Rajasthan High Court
Rohit Kumar vs State Of Rajasthan Through Pp on 11 February, 2021
Bench: Narendra Singh Dhaddha
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S. B. Criminal Misc. Stay Application No.4808/2017
In
S.B. Criminal Appeal No. 538/2015
Rohit Kumar S/o Om Prakash, R/o Gurjar Mohalla, Mahuwa,
Police Station Mahuwa, District Dausa
---Accused-Appellant
Versus
State Of Rajasthan Through PP
----Respondent
For Appellant(s) : Mr. Pankaj Gupta, Adv.
For Respondent(s) : Mr. Chandragupt Chopra, PP
HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA
Order
11/02/2021
Applicant has moved this criminal miscellaneous stay
application under Section 389 Cr.P.C. in which he prayed that the
judgment of conviction order dated 11.06.2015 passed by learned
Additional Sessions Judge, Bandikui Camp at Mahuwa, District
Dausa in Sessions Case No.22/2012 titled as State of Rajasthan
Vs. State of Rohit Kumar & Ors, be stayed.
It is contended by counsel for the applicant that the
applicant is facing hardship due to judgment of conviction.
Applicant's father has died on 01.06.2017. Sentence of applicant
has been suspended by the Co-ordinate Bench of this Court on
25.04.2016. Applicant had moved an application for
compassionate appointment but due to conviction, Appointing
(2 of 3) [CRLA-538/2015]
Authority refused to give the appointment. So, application for stay
of conviction be allowed.
Learned counsel for the applicant has placed reliance on
"Rama Narang vs. Ramesh Narang" (1995) 2 SCC 513 "Jagdish
Prasad vs. State of Rajasthan" 2013 SCC onLine Raj. 450,
"Bhagwan Singh vs. State" 2009 WLC 575, "Shivlal vs. State of
Rajasthan" 2007 (3) RCC 1039, "Murarilal vs. State of Rajasthan &
Ors." 2009 (2) WLC 345 and "Navjot Singh Siddhu vs. State of
Punjab" (2007) 2 SCC 574.
Learned Public Prosecutor has opposed the arguments
advanced by learned counsel for the applicant.
I have considered the contentions raised by counsel for the
parties.
Larger Bench of the Apex Court in Rama Narang's
case(Supra) held as under :-
"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 Code if the power was not to be found in Section
389(1) of the Code. 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
(3 of 3) [CRLA-538/2015]
could not have exercised jurisdiction under Section
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 persons does not suffer from a certain
disqualification provided for in any other statute, 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 (sic or) 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."
In the present case, applicant wants to get compassionate
appointment in place of his father who has expired on 01.06.2017.
In "Jagdish Prasad's case (Supra) there was conviction under
Section 306, 498A and the appellant was working as LDC in the
Education Department and has since retired but was denied
pension on account of the conviction order. High Court directed
that the judgment of conviction shall remain stayed during
pendency of the appeal.
I am of the view that once the consequences of conviction
are made known to the Court, the Court is entitled to stay the
conviction order.
Consequently, it is directed that the judgment of conviction
order dated 11.06.2015 passed by learned Additional Sessions
Judge, Bandikui Camp at Mahuwa, District Dausa shall remain
stayed, till pendency of the appeal.
(NARENDRA SINGH DHADDHA),J
Gourav/51
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