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Friday, August 1, 2014

Sec.389 of Cr.P.C. - Stay of Sentence convicted under Sections 147, 148, 302/144 IPC read with Section - Grounds for granting - Apex court held that He has been working as a Principal and if the conviction is not stayed, he will lose his job, will be denied of his livelihood and he would not be in a position to participate in subsequent selection procedures conducted by the U.P. Secondary Education Services Selection Board, Allahabad.are not the grounds for granting stay as he was convicted under sec.302 I.P.C. and sentenced to undergo for life imprisonment = CRIMINAL APPEAL NO. 1515 OF 2014 [Arising out of S.L.P. (Criminal) No.5654 of 2014 CRLMP No. 8191 of 2014] Shyam Narain Pandey … Appellant (s) Versus State of U.P. … Respondent (s) = 2014 July. Part – http://judis.nic.in/supremecourt/filename=41782

Sec.389 of Cr.P.C. - Stay of Sentence convicted under Sections 147, 148, 302/144 IPC  read  with  Section - Grounds for gratning - Apex court held that He has been working as a Principal and if the  conviction  is  not stayed, he will lose his job, will be denied of his livelihood and he  would not be in a position  to  participate  in  subsequent  selection  procedures conducted  by  the  U.P.  Secondary  Education  Services  Selection   Board, Allahabad are not the grounds for granting stay as he was convicted under sec.302 I.P.C. and sentenced to undergo for life imprisonment = 

It
is the contention of the learned  counsel  for  the  appellant  that  he  is
innocent.
He has been working as a Principal and if the  conviction  is  not
stayed, he will lose his job, will be denied of his livelihood and he  would
not be in a position  to  participate  in  subsequent  selection  procedures
conducted  by  the  U.P.  Secondary  Education  Services  Selection   Board,
Allahabad.

 We are afraid none of these contentions can be appreciated.  The  appellant
has been convicted under Sections 147, 148, 302/144 IPC  read  with  Section
120B IPC and is sentenced to undergo life imprisonment.

‘Convict’ means declared to be guilty of criminal offence by the verdict  of
court of law. That declaration is made after the court finds him  guilty  of
the charges which have been proved against him.  Thus,  in  effect,  if  one
prays for stay of conviction, he is asking for  stay  of  operation  of  the
effects of the declaration of being guilty. =

It  has  been  consistently  held  by  this  Court  that  unless  there  are
exceptional  circumstances,  the  appellate  court  shall   not   stay   the
conviction, though the sentence may be suspended.
There is no hard and  fast
rule or guidelines as to what are those exceptional circumstances.
However,
there are certain indications  in  the  Code  of  Criminal  Procedure,  1973
itself as to which are those situations and a few indications are  available
in the judgments of this Court as to what are those circumstances.

It may be noticed that even for the suspension of the  sentence,  the  court
has to record the reasons in writing under Section 389(1) Cr.PC.
Couple  of
provisos  were  added  under  Section   389(1)   Cr.PC   pursuant   to   the
recommendations made by the Law Commission  of  India  and  observations  of
this Court in various judgments, as per Act 25 of  2005.
 It  was  regarding
the release on bail of a convict where the sentence  is  of  death  or  life
imprisonment or of a period not less than ten years.
If the appellate  court
is inclined to consider release of a convict of such  offences,  the  public
prosecutor has to be given an  opportunity  for  showing  cause  in  writing
against such release.
This is also an indication as to  the  seriousness  of
such offences and circumspection which the court should have  while  passing
the order  on  stay  of  conviction.  Similar  is  the  case  with  offences
involving moral turpitude. If the convict is involved in  crimes  which  are
so outrageous and yet beyond suspension of sentence, if the conviction  also
is stayed, it would have serious impact on  the  public  perception  on  the
integrity  institution.  Such  orders  definitely  will  shake  the   public
confidence in judiciary.
That is why, it has been cautioned time  and  again
that the court should be very wary in staying the conviction  especially  in
the types of cases referred to above and it shall be done only in very  rare
and exceptional  cases  of  irreparable  injury  coupled  with  irreversible
consequences resulting in injustice.=

In the light of  the  principles  stated  above,  the  contention  that  the
appellant will be deprived of his source of livelihood if the conviction  is
not stayed cannot be appreciated.
For the  appellant,  it  is  a  matter  of
deprivation of livelihood but he is convicted for  deprivation  of  life  of
another person.
Until he is  otherwise  declared  innocent  in  appeal,  the
stain stands.  The High Court has discussed in detail the background of  the
appellant, the nature of the crime, manner in which it was  committed,  etc.
and has rightly held that it is not a very rare  and  exceptional  case  for
staying the conviction.

We do not, thus, find any merit in the appeal and the  same  is  accordingly
dismissed. However, we make it clear that the observations in this  judgment
are only for the purpose of this order and they shall have no bearing  while
hearing the appeal.

 2014 July. Part – http://judis.nic.in/supremecourt/filename=41782


                        IN THE SUPREME COURT OF INDIA

                      CRIMINAL  APPELLATE  JURISDICTION


                      CRIMINAL APPEAL NO. 1515 OF 2014
  [Arising out of S.L.P. (Criminal) No.5654 of 2014 CRLMP No. 8191 of 2014]

Shyam Narain Pandey                               … Appellant (s)

                                   Versus

State of U.P.                                     … Respondent (s)


                               J U D G M E N T

KURIAN, J.:


Delay condoned.

Leave granted.

Scope of stay of conviction under Section 389(1) of  the  Code  of  Criminal
Procedure, 1973 (hereinafter referred to as ‘Cr.PC’), is the subject  matter
of this appeal.

Appellant was tried along  with  six  others  by  the  Court  of  Additional
Sessions Judge, Azamgarh, Uttar Pradesh. He  was  convicted  under  Sections
147, 148, 302/144 of  the  Indian  Penal  Code  (45  of  1860)  (hereinafter
referred to as ‘IPC’) read with Section 120B IPC with life imprisonment  and
fine. He was granted bail by order dated 29.08.2012 by  the  High  Court  of
Judicature at Allahabad. Thereafter, the appellant filed an application  for
staying the judgment of conviction  which  was  dismissed  by  the  impugned
order dated 07.08.2013.

By a separate order, we have cancelled the bail granted to the appellant  in
view of non-compliance of first proviso to  Section  389(1)  Cr.PC  and  the
matter has been remitted to the High Court for fresh consideration. Be  that
as it may, the High Court has considered in detail the application  made  by
the petitioner for staying the conviction and has declined  the  relief.  It
is the contention of the learned  counsel  for  the  appellant  that  he  is
innocent. He has been working as a Principal and if the  conviction  is  not
stayed, he will lose his job, will be denied of his livelihood and he  would
not be in a position  to  participate  in  subsequent  selection  procedures
conducted  by  the  U.P.  Secondary  Education  Services  Selection   Board,
Allahabad.

 We are afraid none of these contentions can be appreciated.  The  appellant
has been convicted under Sections 147, 148, 302/144 IPC  read  with  Section
120B IPC and is sentenced to undergo life imprisonment.

‘Convict’ means declared to be guilty of criminal offence by the verdict  of
court of law. That declaration is made after the court finds him  guilty  of
the charges which have been proved against him.  Thus,  in  effect,  if  one
prays for stay of conviction, he is asking for  stay  of  operation  of  the
effects of the declaration of being guilty.

It  has  been  consistently  held  by  this  Court  that  unless  there  are
exceptional  circumstances,  the  appellate  court  shall   not   stay   the
conviction, though the sentence may be suspended. There is no hard and  fast
rule or guidelines as to what are those exceptional circumstances.  However,
there are certain indications  in  the  Code  of  Criminal  Procedure,  1973
itself as to which are those situations and a few indications are  available
in the judgments of this Court as to what are those circumstances.

It may be noticed that even for the suspension of the  sentence,  the  court
has to record the reasons in writing under Section 389(1) Cr.PC.  Couple  of
provisos  were  added  under  Section   389(1)   Cr.PC   pursuant   to   the
recommendations made by the Law Commission  of  India  and  observations  of
this Court in various judgments, as per Act 25 of  2005.  It  was  regarding
the release on bail of a convict where the sentence  is  of  death  or  life
imprisonment or of a period not less than ten years. If the appellate  court
is inclined to consider release of a convict of such  offences,  the  public
prosecutor has to be given an  opportunity  for  showing  cause  in  writing
against such release. This is also an indication as to  the  seriousness  of
such offences and circumspection which the court should have  while  passing
the order  on  stay  of  conviction.  Similar  is  the  case  with  offences
involving moral turpitude. If the convict is involved in  crimes  which  are
so outrageous and yet beyond suspension of sentence, if the conviction  also
is stayed, it would have serious impact on  the  public  perception  on  the
integrity  institution.  Such  orders  definitely  will  shake  the   public
confidence in judiciary. That is why, it has been cautioned time  and  again
that the court should be very wary in staying the conviction  especially  in
the types of cases referred to above and it shall be done only in very  rare
and exceptional  cases  of  irreparable  injury  coupled  with  irreversible
consequences resulting in injustice.

In Ravikant S. Patil v. Sarvabhabhouma S. Bagali[1], a three-Judge Bench  of
this Court has held that the power to  stay  the  conviction  …  “should  be
exercised only in  exceptional  circumstances  where  failure  to  stay  the
conviction would  lead  to  injustice  and  irreversible  consequences”.  In
Navjot Singh Sidhu v. State of Punjab and  another[2],   following  Ravikant
S. Patil case (supra), at paragraph-6, this Court held as follows:

“6. 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 [pic]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.”


In State of Maharashtra through  CBI,  Anti  Corruption  Branch,  Mumbai  v.
Balakrishna  Dattatrya  Kumbhar[3],  referring            also  to  the  two
decisions cited above, it has been held at paragraph-15 that:
“15. …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  examine
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.”


In State of Maharashtra v. Gajanan and another[4], and  Union  of  India  v.
Atar Singh and another[5], cases under the  Prevention  of  Corruption  Act,
1988, this court had to deal with specific situation of loss of job  and  it
has been held that it is not  one  of  exceptional  cases  for  staying  the
conviction.

In the light of  the  principles  stated  above,  the  contention  that  the
appellant will be deprived of his source of livelihood if the conviction  is
not stayed cannot be appreciated. For the  appellant,  it  is  a  matter  of
deprivation of livelihood but he is convicted for  deprivation  of  life  of
another person. Until he is  otherwise  declared  innocent  in  appeal,  the
stain stands.  The High Court has discussed in detail the background of  the
appellant, the nature of the crime, manner in which it was  committed,  etc.
and has rightly held that it is not a very rare  and  exceptional  case  for
staying the conviction.

We do not, thus, find any merit in the appeal and the  same  is  accordingly
dismissed. However, we make it clear that the observations in this  judgment
are only for the purpose of this order and they shall have no bearing  while
hearing the appeal.

                                                               ..………….……….J.
                                                 (M.Y. EQBAL)
                                                               ……….………...…J.
                                                             (KURIAN JOSEPH)
New Delhi;
July 22, 2014.
-----------------------
[1]    (2007) 1 SCC 673
[2]    (2007) 2 SCC 574
[3]    2012(12) SCC 384
[4]    (2003) 12 SCC 432
[5]    (2003) 12 SCC 434

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                                                                  REPORTABLE


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