Rajasthan High Court
Mohit Kumar S/O Shri Krishan Kumar vs State Of Rajasthan on 2 April, 2024
Author: Anoop Kumar Dhand
Bench: Anoop Kumar Dhand
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Misc. Stay Application No.2267/2024
In
S.B. Criminal Appeal No. 1798/2022
Mohit Kumar S/o Shri Krishan Kumar, R/o Korer Police
Station Kotwali Deeg, District Bharatpur
----Appellant
Versus
State Of Rajasthan, Through Public Prosecutor
----Respondent
For Appellant(s) : Mr. Vinay Pal Yadav
For Respondent(s) : Mr. Imran Khan, PP
HON'BLE MR. JUSTICE ANOOP KUMAR DHAND
Order
02/04/2024
Reportable
1. Present misc. stay application filed by the
applicant appellant for staying the judgment of his
conviction passed by the Special Judge SC/ST Cases, Ajmer
vide judgment dated 03.09.2022 by which the appellant has
been convicted for the offence punishable under Section
3/25 of the Arms Act and has been sentenced to undergo
two years simple imprisonment with fine of Rs.5,000/-.
2. Learned counsel for the applicant-appellant
submits that the appellant faced trial for the offence under
Sections 307 and 120-B IPC and under Section 3(2)(V) of
the SC/ST Act along with Section 3/25 of the Arms Act.
(2 of 9) [CRLAS-1798/2022]
Counsel submits that the appellant has been acquitted from
all the charges except the charge under Section 3/25 of the
Arms Act and he has been sentenced to undergo two years
simple imprisonment. Counsel submits that though recovery
of pistol was there, but the same was recovered from an
open place which was not in exclusive possession of the
appellant. Counsel submits that considering the aforesaid
arguments the sentence of the appellant has already been
suspended by this Court vide order dated 19.09.2022.
Counsel submits that during pendency of the trial and this
appeal, the appellant participated in the process for
selection for appointment on the post of ECG Technician and
he has been selected and appointed vide order dated
15.03.2024. Counsel submits that now the judgment of
conviction will come in the way of the appellant in getting
appointment on the post of ECG Technician, so under these
circumstances his conviction be stayed till disposal of the
appeal. In support of his contentions, he has placed reliance
upon the following judgments passed by the Hon'ble Apex
Court and by this Court:
1. Rahul Gandhi vs. Purnesh Ishwarbhai
Modi and Anr. (Special Leave to Appeal
(crl.) No.8644/2023).
2. Navjot Singh Sidhu vs. State of
Punjab reported in 2007 (2) SCC 574.
3. Arpit Jain vs. State of Rajasthan (SB
Criminal Stay No.3278/2018).
4. Dr. Manju Dulet and Another vs. State
of Rajasthan (SB Criminal Misc. Stay
Application No.1365/2019).
(3 of 9) [CRLAS-1798/2022]
5. Subhash Kholiya vs. State of
Rajasthan (SB Criminal Misc. Stay
Application No.1602/2017).
3. Counsel submits that in view of the submissions
made herein above, appropriate orders be passed for
staying the sentence of the appellant awarded by the trial
Court.
4. Per contra, learned Public Prosecutor opposed
the arguments raised by the counsel for the appellant and
submitted that mere selection of the appellant on the post
of ECG Technician is not a ground for seeking stay of
conviction. Counsel submits that conviction of an accused
can be stayed only in the rarest of rare cases and the
appellant has failed to make out a special case for stay of
his conviction, hence under these circumstances, the
application is liable to be rejected.
5. Heard and considered the submissions made at
Bar and perused the material available on the record.
6. At the outset, it is imperative to delineate the
essential parameters that must be meticulously examined
to determine whether a case can be made out for
suspension of conviction under Section 389(1) of the CrPC.
Section 389(1) enjoins upon the Appellate Court, the power
to issue an order for the suspension of a sentence or an
order of conviction during the pendency of an appeal. It
may be thus of paramount importance to scrutinise the
(4 of 9) [CRLAS-1798/2022]
precise language of Section 389(1) of the CrPC, which is
articulated as follows:
"S. 389(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."
7. It becomes manifestly evident from the plain
language of the provision, that the Appellate Court is
unambiguously vested with the power to suspend
implementation of the sentence or the order of conviction
under appeal and grant bail to the incarcerated convict, for
which it is imperative to assign the reasons in writing. This
Court has undertaken a comprehensive examination of this
issue on multiple occasions, laying down the broad
parameters to be appraised for the suspension of a
conviction under Section 389(1) of the CrPC. There is no
gainsaying that in order to suspend the conviction of an
individual, the primary factors that are to be looked into,
would be the peculiar facts and circumstances of that
specific case, where the failure to stay such a conviction
would lead to injustice or irreversible consequences. The
very notion of irreversible consequences is centered on
factors, including the individual's criminal antecedents, the
gravity of the offence, and its wider social impact, while
simultaneously considering the facts and circumstances of
the case.
(5 of 9) [CRLAS-1798/2022]
8. Hon'ble Apex Court in the case of Navjot Singh
Sidhu (supra) has observed as under:
"The legal position is, therefore, clear that an
appellate Court can suspend or grant stay of order
of conviction. But 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. Unless the
attention of the Court is drawn to the specific
consequences that would follow on account of the
conviction, the person convicted cannot obtain an
order of stay of conviction. Further, grant of stay of
conviction can be resorted to in rare cases
depending upon the special facts of the case."
9. Similarly in the case of Rama Narang vs
Ramesh Narang & Ors reported in 1995 (2) SCC 513,
Hon'ble Apex Court has 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 ode 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 in the
background because High Courts can exercise
(6 of 9) [CRLAS-1798/2022]
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 (lode 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 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."
10. Recently Hon'ble Supreme Court in the case of
Afjal Ansari vs. State of UP in Criminal Appeal
No.3838/2023 has held that in order to suspend the
sentence of an individual, the primary factors which are to
be looked into would be the peculier facts and
circumstances of that specific case, where the failure to stay
such a conviction would lead to injustice or irreversible
consequences and it has been held in para 11 as under:
"11. It becomes manifestly evident from the
plain language of the provision, that the
Appellate Court is unambiguously vested with
(7 of 9) [CRLAS-1798/2022]
the power to suspend implementation of the
sentence or the order of conviction under
appeal and grant bail to the incarcerated
convict, for which it is imperative to assign the
reasons in writing. This Court has undertaken a
comprehensive examination of this issue on
multiple occasions, laying down the broad
parameters to be appraised for the suspension
of a conviction under Section 389(1) of the
CrPC. There is no gainsaying that in order to
suspend the conviction of an individual, the
primary factors that are to be looked into,
would be the peculiar facts and circumstances
of that specific case, where the failure to stay
such a conviction would lead to injustice or
irreversible consequences. The very notion of
irreversible consequences is centered on
factors, including the individual's criminal
antecedents, the gravity of the offence, and its
wider social impact, while simultaneously
considering the facts and circumstances of the
case.
11. Following the judgment of Ravikant Patila vs.
Sarvabhouma S. Bagali reported in 2007 (1) SCC 673,
the Hon'ble Apex Court has held in para 15 of the Afjal
Ansari (supra) as under:
"15. This Court has on several occasions
opined that there is no reason to interpret
Section 389(1) of the CrPC in a narrow
manner, in the context of a stay on an order of
conviction, when there are irreversible
consequences. Undoubtedly, Ravikant Patil v.
Sarvabhouma S. Bagali,6 holds that an order
granting a stay of conviction should not be the
rule but an exception and should be resorted
to in rare cases depending upon the facts of a
case. However, where conviction, if allowed to
operate would lead to irreparable damage and
where the convict cannot be compensated in
any monetary terms or otherwise, if he is
acquitted later on, that by itself carves out an
exceptional situation. Having applied the
(8 of 9) [CRLAS-1798/2022]
specific criteria outlined hereinabove to the
present factual matrix, it is our considered
view that the Appellant's case warrants an
order of stay on his award of conviction,
though partially."
12. Turning to the case in hand, the appellant faced
trial for various offences including the offence under Section
307 IPC and under Section 3(2)(V) of the SC/ST Act read
with Section 3/25 of the Arms Act. This fact is also not in
dispute that the appellant has already been acquitted from
all the charges except the charge under Section 3/25 of the
Arms Act and he has been sentenced to undergo two years
simple imprisonment with fine of Rs.5,000/-. This fact is
also not in dispute that the aforesaid judgment passed by
the Court of Special Judge SC/ST Cases, Ajmer has not
been assailed by the State as well as by the complainant by
way of filing appeal before this Court, hence acquittal of the
appellant for the above charges has attained finality. This
fact is not in dispute that during pendecy of this appeal, the
appellant has been selected on the post of ECG Technician
by the Department of Medical and Health vide order dated
15.03.2024. Since the appellant has been convicted for a
petty offence and his conviction will come in his way of
getting appointment and he would suffer irrevocable
consequences of loosing the appointment in case his
conviction is not stayed till disposal of the appeal. The
applicant is young boy and his entire future is at stake
because of his conviction in the instant case. In case the
(9 of 9) [CRLAS-1798/2022]
conviction of the appellant is allowed to operate, it would
lead to irreparable damage and for which he cannot be
compensated in terms of money or otherwise if he looses
the opportunity of getting service and is acquitted later on,
that by itself cause out an exceptional situation. After
applying the specific criteria outlined herein above to the
present factual matrix, it is the considered view of this
Court that the appellant's case warrants an order of stay on
his conviction.
13. In view of the above, stay application filed by the
appellant stands allowed. The conviction of the appellant
arising out of the judgment dated 03.09.2022 passed by the
Special Judge, SC/ST (Prevention of Atrocity) Cases, Ajmer
shall remain stayed till disposal of the appeal.
(ANOOP KUMAR DHAND),J
KuD/70
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