Rajasthan High Court - Jodhpur

Anand Kumar vs State Of Rajasthan on 4 March, 2022

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Revision Petition No. 191/2022

Anand Kumar S/o Ramesh Kumar, Aged About 32 Years, W.no. 06, Khunja, Hanumangarh Junction, Teh. And Dist. Hanumangarh

----Petitioner Versus State Of Rajasthan, Through Pp

----Respondent

For Petitioner(s) : Mr. CS Kotwani For Respondent(s) : Mr. Gaurav Singh, PP

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

04/03/2022

In wake of instant surge in COVID-19 cases and spread of its

highly infectious Omicron variant, abundant caution is being

maintained, while hearing the matters in Court, for the safety of

all concerned.

At the threshold counsel for the petitioner submits that

the petitioner is prepared to compensate respondent-wife to a

reasonable amount arrived at by the consent of parties or as

ordered by this Court.

Counsel for the petitioner submits that the petitioner is a

Government servant posted as Teacher Grade-II at Government

Senior Secondary School, Gram Panchayat Damodara, Panchayat

Samiti Sam, District Jaisalmer.

Counsel for the petitioner submits that the petitioner is

suffering sentence of one year's simple imprisonment for offence

punishable under Section 498-A IPC and the sentence awarded to

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petitioner has already been suspended by learned Sessions

Judge, Hanumangarh (i.e. appellate court) vide order dated

10.02.2021.

Counsel for the petitioner submits that the so-called cruelty

committed by petitioner neither falls under the purview of 'moral

turpitude' nor is having any direct bearing on his employment.

Conviction upon matrimonial cruelty is a very personal issue

involving husband and wife and does not have any adverse impact

on the society at large.

Counsel for the petitioner submits that due to aforesaid

decision by the trial court the petitioner will loose his job for none

of his fault even if the appeal preferred by him is allowed

belatedly. Counsel for the petitioner submits that the petitioner's

employer has already proceeded to terminate his service on count

of conviction on 10.08.2021.

Counsel for the petitioner has relied upon the judgment of

this Court in Smt. Pushpa Devi @ Rani Vs. State of Rajasthan

(S.B. Criminal Stay Petition No.417/2021) rendered on

15.07.2021, which reads as follows :-

"In wake of second surge in the COVID-19 cases, abundant caution is being maintained, while hearing the matters in Court, for the safety of all concerned.

Learned counsel for the petitioner has referred to the judgment passed by Division Bench of this Hon'ble Court in the matter of Balbir Singh Vs. State of Rajasthan rendered in D.B. Criminal Misc. Stay Petition No.5252/2019 in D.B. Criminal Appeal No.136/2019 decided on 05.09.2019, relevant portion reads as under :-

"We have carefully gone through the judgments relied upon by the learned counsel for both the sides. Division Bench of this Court in Sushil and Anr. Vs. State of Rajasthan cited above had rejected

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the application moved by the applicant for suspension of his conviction holding that conviction could not be stayed on the ground that the applicant would lose his livelihood.

However, in the present case, facts are different. So far as applicant is concerned he was found innocent during investigation and was summoned by the trial Court under Section 193 Cr.P.C. Challan was presented against the husband of the deceased under Section 306 IPC and thereafter, charges were framed against the accused under Section 304-B IPC and 498-A IPC and in alternative under Section 306 IPC. It has been pointed that applicant does not have any criminal record. Applicant has been in service of Department of Telecommunications for the last 35 years. However, now applicant has received notice proposing punishment of dismissal on account of conviction earned by him in the present case. Sentence of the applicant has been suspended by this Court. In case, conviction of the applicant is not stayed/suspended, he might lose his job. It has been stated by the learned counsel for the applicant that the applicant will retire in July, 2020. Thus applicant is at the fag end of his career.

Keeping in view the facts and circumstances of the case, we are of the opinion that it would be just and expedient to stay/suspend the conviction of the applicant during the pendency of the appeal. Judgment relied upon by the learned counsel for the complainant fails to advance the case of the complainant as it is based on different facts.

Accordingly, application is allowed. Conviction of the applicant shall remain stayed/suspeneded during the pendency of the appeal."

Learned counsel for the petitioner has thereafter referred to the judgment of this Court passed in the matter of Gopendra Kumar Vs. State of Rajasthan (S.B. Criminal Misc. Stay Application No.1585/2021 in S.B. Criminal Appeal No.452/2021) decided on 05.03.2021. The order dated 05.03.2021 reads as under :-

"Applicant has moved a criminal miscellaneous stay application under Section 482 Cr.P.C. in which he prayed that the judgment of conviction order dated 22.02.2021 passed by learned

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Special Judge, Prevention of Children From Sexual Offences Act, 2012 and Commission for Protection of Child Right Act, 2005, Karauli in Sessions Case No.136/2018 (135/2016) (126/2016) (CIS No.136/2018) titled as State Vs. Gopendra Kumar be stayed.

It is contended by counsel for the applicant that the applicant is ticket collector in the Department of Railway. If the conviction of the applicant is not stayed, enquiry will be initiated against him and his services will be terminated. So, the conviction order passed by the learned Court below be stayed.

Counsel for the applicant has placed reliance on "Rama Narang vs. Ramesh Narang" (1995) 2 SCC 513 and "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.

Three Judges Bench of the Apex Court in "Rama Narang Vs. Ramesh Narang" 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

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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 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 has come with the specific case that he wants to stay the conviction order passed by the Court below against him because enquiry may be initiated against him and his services are liable to be terminated.

In "Jagdish Prasad Vs. State of Rajasthan" (supra) case, 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

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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 22.02.2021 passed by learned Special Judge, Prevention of Children From Sexual Offences Act, 2012 and Commission for Protection of Child Right Act, 2005, Karauli, shall remain stayed till pendency of the appeal.

Learned counsel for the petitioner submits that the present petitioner has worked on the post of Midwife and has retired on 31.03.2021. It is also contended that the petitioner is a divorcee lady and has no means of maintaining herself even after rendering a prolonged government service on the post of Midwife.

Learned counsel for the petitioner submits that the benefits have been withheld by the department on count of the sentence having not been stayed. It is also contended that as a senior citizen, the petitioner shall face extreme misery for a conviction, which was not connected in any way with the department in question. It is also contended that sentence of the petitioner has already been suspended.

Learned Public Prosecutor opposes the petition. On seeing the precedent law of Balbir Singh Vs. State of Rajasthan (supra) and Gopendra Kumar Vs. State of Rajasthan (supra) and also taking note of the fact that the petitioner has rendered lifetime service to the medical department on the post of Midwife and has now retired after otherwise a satisfactory service in March, 2021 and is a divorcee, would not be able to maintain herself, this Court is inclined to allow the stay petition.

In view of the above, the misc. stay petition is allowed and it is ordered that the during the pendency of the criminal revision petition, the order of conviction dated 03.01.2017 passed by the learned Judicial Magistrate, Pindwara in Criminal original case No.658/2007 as well as passed by learned Additional Sessions Judge No.2, Abu Road, Sirohi in Criminal Appeal No.1/2017; titled as Smt. Pushpa Devi @ Rani Vs. State shall remain stayed."

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Counsel for the petitioner submits that, though, the law is

broadly against staying of conviction but in rarest of rare case

intervention of Court is called for.

Learned Public Prosecutor opposed granting of stay on

conviction stating that after all conviction is conviction and more

particularly when a person is discharging pious duty of teaching

This Court takes note of the fact that the petitioner is

offering reasonable compensation to his wife although valid

divorce has taken place between them; the sentence awarded is of

one year's simple imprisonment under Section 498-A IPC; the

offence is of private nature; the petitioner being a government