Jagnarayan Yadav @ Jagnaryan vs The State Of Bihar on 15 July, 2024

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Patna High Court - Orders

Jagnarayan Yadav @ Jagnaryan vs The State Of Bihar on 15 July, 2024

1. The present petition has been filed for staying/suspension of conviction by appellant/convict, namely, Mukesh Yadav, as on account of his conviction, he was dismissed from the post of CT (GD) Regt. No. 140260101 while posted with 9th Bn. I.T.B.P.F. (Indo Tibbet Border Police Force), at Lohitpur, Arunachal Pradesh, with effect from 21.12.2021.

Appellant/petitioner already granted bail and his Patna High Court CR. APP (SJ) No.140 of 2022(11) dt.15-07-2024 2/22 sentence put on suspension under Section 389(1) of the Cr.P.C. vide order dated 01.05.2024 of this Court.

2. Prosecution case in brief is that informant Ramayan Singh gave his fardbeyan on 03.04.2014 at 10:15 am, while he was admitted in Emergency Ward of Sadar Hospital, Buxar, disclosing therein that on 02.04.2014 at about 4.00 PM, he was coming from the house of Harendra Sah after receiving payment of Rs.

10,000/- as cost of paddy crops and as soon as, he reached near to his garlic field, he saw that drain water of accused Jagnarayan was flowing towards his garlic field. On being resist by him, the accused Jagnarayan started altercation with him. Meanwhile other co-

accused persons came to the place of occurrence, out of whom Mukesh Yadav armed with Farsa blow upon his head, as a result of which, he got injured, other accused persons also started beating him, which also caused injuries. It is further submitted that Ramesh Yadav alias Bablu Yadav gave blow of Farsa upon Sadhu Yadav @ Patna High Court CR. APP (SJ) No.140 of 2022(11) dt.15-07-2024 3/22 Sadhu Charan Yadav, who had come to rescue informant and he sustained injury on his left palm and other accused persons gave blow of Lathi upon Sadhu Sharan Yadav, Prem Yadav and Munna Yadav while they came to rescue the informant, finally they took away the informant and injured to Sadar Hospital, Buxar. On the basis of aforesaid statement, Nawanagar P.S. Case No. 76/2014 dated 11.04.2014 u/s 147, 148, 149, 341, 323, 324, 307, 379, 504 of the I.P.C. was lodged.

3. After conclusion of trial, trial court convicted appellant/petitioner, Mukesh Yadav alongwith other co-

accused persons for the offences punishable under Sections 147, 148, 307/149, 323/149, 341/149 and 325/149 of the Indian Penal Code.

Appellant/convict/petitioner sentenced maximum for offence punishable under Section 307/149 of the Indian Penal Code and ordered to undergo setence for seven years rigorous imprisonment alongwith fine of Rs.

2000/- and also for other penal provisions separately Patna High Court CR. APP (SJ) No.140 of 2022(11) dt.15-07-2024 4/22 alognwith fine which ordered to run concurrently.

4. Mr. Krishna Prasad Singh, learned senior counsel, while appearing on behalf of the appellant no.

5/petitioner, namely Mukesh Yadav submitted that the appellant was employed as CT (GD)/Regt. No. 140260101 with 9th Bn. I.T.B.P.F. (Indo Tibbet Border Police Force) and after his conviction in the present case, he was dismissed from his service, which has caused him irreparable loss and financial hardship. It is submitted that the appellant/petitioner is young as 29 years old and he has long service and carrier as to serve this country. His whole family, as old parents, wife and two minor childrens are completely dependent on him.

5. It is submitted that the balance of appeal is in favour of appellant/petitioner, as allegation against him is only to give a single assault on the head of informant, causing simple injury. It is further submitted that the injury report is also not appears corroborated Patna High Court CR. APP (SJ) No.140 of 2022(11) dt.15-07-2024 5/22 qua nature of weapons, which alleged to used for causing injury on the head of the informant by appellant/petitioner, for the reasons that a " farsa" which is a sharp edged weapon by all probabilities can cause only incised wound but same appears lacerated in terms of deposition of doctor/PW-8, who examined informant.

With this much allegation of physical assault certainly conviction as recorded under Section 307 of the Indian Penal Code qua appellant/petitioner is not appearing convincing on its face as "intention to cause death" can be gathered from different factors. In support of his submission, learned senior counsel relied upon the report of Jage Ram & Others Vs. State of Haryana reported in (2015) 11 SCC 366.

6. It would be apposite to quote relevant paragraph nos. 12, 13 and 14 of the Jage Ram's Case (supra), for better understanding of position of law, which required consideration to establish "intention to cause death" which is as under :-

Patna High Court CR. APP (SJ) No.140 of 2022(11) dt.15-07-2024 6/22 "12. For the purpose of conviction under Section 307 IPC, the prosecution has to establish (i) the intention to commit murder; and (ii) the act done by the accused. The burden is on the prosecution that the accused had attempted to commit the murder of the prosecution witness.

Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given, etc.

13. In State of M.P. v.

Kashiram [State of M.P. v. Kashiram, (2009) 4 SCC 26 : (2009) 2 SCC (Cri) 40 : AIR 2009 SC 1642] , the scope of intention for attracting conviction under Section 307 IPC was elaborated and it was held as under: (SCC pp. 29-30, paras 12-13) "12. ... '13. It is sufficient to justify a conviction under Section 307 if there is Patna High Court CR. APP (SJ) No.140 of 2022(11) dt.15-07-2024 7/22 present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt.

14. This position was highlighted in State of Maharashtra v. Balram Bama Patil [State of Maharashtra v. Balram Bama Patil, (1983) 2 SCC 28 : 1983 SCC (Cri) 320] , Girija Shankar v. State of U.P. [Girija Shankar v. State of U.P., (2004) 3 SCC 793 : 2004 SCC (Cri) 863] and R. Prakash v. State of Karnataka [R. Prakash v. State of Karnataka, (2004) 9 SCC 27 : 2004 SCC (Cri) 1408] .

16. Whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case. The circumstances that the injury inflicted by the accused was simple or minor will not by itself rule out application of Section 307 IPC. The determinative question is the intention or knowledge, as the case may be, and not the nature of the injury.' Patna High Court CR. APP (SJ) No.140 of 2022(11) dt.15-07-2024 8/22 See State of M.P. v. Saleem [Saleem case, (2005) 5 SCC 554 : 2005 SCC (Cri) 1329] , SCC pp. 559-60, paras 13-14 and 16.

13. '6. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of T.N. [Sevaka Perumal v. State of T.N., (1991) 3 SCC 471 : 1991 SCC (Cri) 724] ' (Saleem case [Saleem case, (2005) 5 SCC 554 : 2005 SCC (Cri) 1329] , SCC p. 558, para 6)"

14. Having regard to the weapon used for causing the head injuries to Sukhbir, nature of injuries, situs of the injuries and the severity of the blows, the courts below recorded concurrent findings convicting the second appellant under Section 307 IPC. In our considered view, the conviction of the second appellant Rajbir alias Raju under Section 307 IPC is unassailable."

7. Mr. Krishna Prasad Singh, learned senior counsel while arguing further in this matter submitted that though he is aware about the position of law that Patna High Court CR. APP (SJ) No.140 of 2022(11) dt.15-07-2024 9/22 ordinarily the conviction cannot be stayed but the peculiar facts of this case, where appellant/petitioner even without departmental proceeding or any show cause, merely on the basis of conviction in present case, out-rightly dismissed from the service, and as such forced to file this petition to meet out the extraordinary situation as to save his whole family from financial hardship. It is submitted that this appeal is of year 2022 itself, and even if would be taken up for final hearing after 15-20 years, by that time appellant/petitioner/convict would already have been suffered irreparable loss. It is pointed out that this Court has power to stay the conviction to meet out such extraordinary situation and in support of his submission, learned counsel relied upon the legal report of Navjot Singh Sidhu Vs. State of Punjab and Another reported in (2007) 2 SCC 574. Learned counsel also relied upon the report of Ramanarang Vs. Ramesh Narang & others reported through (1995) 2 SSC Patna High Court CR. APP (SJ) No.140 of 2022(11) dt.15-07-2024 10/22

513.

8. Mr. Singh learned senior counsel submits that the case of the appellant is fully covered by the observation and the finding recorded by the Supreme Court, as on account of conviction only, the appellant has incurred disqualification for continuing in service.

9. The Rule 20(1)(a) of the ITBPF Rules, 1994 provides that any employee upon conviction in a criminal case shall be dismissed without show cause or departmental proceeding and for the said reasons only, the appellant/convict was dismissed from the service without giving an opportunity to show cause. It is pointed out that in such a condition, if conviction is not suspended and appeal remains pending for a longer period and if in the meantime, petitioner get superannuation from the service, it will not serve any logical purpose, as he could not rejoin his service and even if it get disposed earlier he will not get the monetary relief for the period of dismissal as he will not Patna High Court CR. APP (SJ) No.140 of 2022(11) dt.15-07-2024 11/22 be able to claim his salary due to non discharge of his duty for said period.

10. It is further submitted that the aforesaid dismissal of the appellant brought his family on the verge of starvation and beside damaging his life, welfare of two minor childrens including their educations, will be stopped and as such their entire career will be ruined.

Dismissal in present case, which is on exclusive note of conviction is only amounting to extending punishment to entire family for no fault. It is submitted that the appellant/petitioner is not even entitled for any subsistence allowance in case of dismissal. It is finally submitted that the charges against appellant/convict is not of any corruption that his continuing in office may set a different note rather he is a Jawan of Paramilitary force protecting country from foreign threats at border by facing every odd situations. While concluding argument, it is submitted that appellant/petitioner is a man of clean antecedent and moreover in similar set of Patna High Court CR. APP (SJ) No.140 of 2022(11) dt.15-07-2024 12/22 fact Division Bench of this Court stayed the conviction of appellant/convict, where conviction was the only basis for dismissal in the matter of Sheo Parsan Dubey Vs. State of Bihar reported through (2010) 4 PLJR 352.

11. It would be apposite to reproduce para nos.

4, 5 and 6 of the Navjot Singh Sidhu Vs. State of Punjab and Another reported in (2007) 2 SCC 574, which is as under :-

"4. Before proceeding further it may be seen whether there is any provision which may enable the Court to suspend the order of conviction as normally what is suspended is the execution of the sentence. Sub-section (1) of Section 389 says that 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. This sub-section confers power not only to suspend the execution of sentence and to grant bail but also to suspend the operation of the order appealed against which means the order of conviction. This question has been examined in considerable detail by a three-Judge Bench of this Court in Rama Narang v.

Ramesh Narang [(1995) 2 SCC 513] and Ahmadi, C.J., speaking for the Court, held as under (para 19 of the reports): (SCC p.

527) Patna High Court CR. APP (SJ) No.140 of 2022(11) dt.15-07-2024 13/22 "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 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 Patna High Court CR. APP (SJ) No.140 of 2022(11) dt.15-07-2024 14/22 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 person 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 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."

5. The aforesaid view has recently been reiterated and followed by another three-Judge Bench in Ravikant S. Patil v. Sarvabhouma S. Bagali [(2007) 1 SCC 673 : JT (2006) 10 SC 578] . After referring to the decisions on the issue viz. State of T.N. v. A. Jaganathan [(1996) 5 SCC 329 : 1996 SCC (Cri) 1026] , K.C. Sareen v. CBI [(2001) 6 SCC 584 : 2001 SCC (Cri) 1186] , B.R. Kapur v. State of T.N. [(2001) 7 SCC 231] and State of Maharashtra v. Gajanan [(2003) 12 SCC 432 : 2004 SCC (Cri) Supp 459] , this Court concluded (SCC p. 681, para 16.5) "16.5. All these decisions, Patna High Court CR. APP (SJ) No.140 of 2022(11) dt.15-07-2024 15/22 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."

The Court also observed: (Ravikant S. Patil case [(2007) 1 SCC 673 : JT (2006) 10 SC 578] , SCC p. 679, para 15) "15[11]. 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."

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 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."

12. It would be further apposite to reproduce the relevant paragraph of the Ramanarang Vs. Patna High Court CR. APP (SJ) No.140 of 2022(11) dt.15-07-2024 16/22 Ramesh Narang & others reported in (1995) 2 SSC 513, which is as under:-

"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 person 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."

13. Learned APP for the State on the other hand placed reliance on a Division Bench Judgment of this Court, reported in 2009(2)PLJR 650, where several judgments of the Supreme Court has discussed and considering the facts and circumstances of the case, the conviction of appellant/petitioner therein, namely Rajesh Ranjan @ Pappu Yadav was not stayed by this Court and was rejected in the interest of justice. It is submitted that said prayer was made by the appellant for fighting an election, which cannot be considered as an exceptional circumstances, as fighting an election may be democratic right of a citizen, but his wishes of Patna High Court CR. APP (SJ) No.140 of 2022(11) dt.15-07-2024 17/22 being elected in the election cannot be categorized as any of his right and therefore, the plea of "irreversible consequences" as submitted, appears of no benefit to the appellant. In support of his submission, learned APP relied upon the legal report of Hon'ble Supreme Court as reported in the case of K.C. Sareen Vs. CBI, Chandigarh reported in (2001)6 Supreme Court Cases 584 and also relied upon the report of Hon'ble Supreme Court in the case of Ravikant S. Patil Vs. Sarvabhouma S. Bagali reported in (2007)1 SCC

673.

14. It would be apposite to reproduce the para nos. 11, 12, 13, and 14 of the K.C. Sareen Vs. CBI, Chandigarh reported in (2001)6 Supreme Court Cases 584, which is as under:-

"11. The legal position, therefore, is this: though the power to suspend an order of conviction, apart from the order of sentence, is not alien to Section 389(1) of the Code, its exercise should be limited to very exceptional cases. Merely because the convicted person files an appeal in challenge of the conviction the court should not Patna High Court CR. APP (SJ) No.140 of 2022(11) dt.15-07-2024 18/22 suspend the operation of the order of conviction. The court has a duty to look at all aspects including the ramifications of keeping such conviction in abeyance. It is in the light of the above legal position that we have to examine the question as to what should be the position when a public servant is convicted of an offence under the PC Act. No doubt when the appellate court admits the appeal filed in challenge of the conviction and sentence for the offence under the PC Act, the superior court should normally suspend the sentence of imprisonment until disposal of the appeal, because refusal thereof would render the very appeal otiose unless such appeal could be heard soon after the filing of the appeal. But suspension of conviction of the offence under the PC Act, dehors the sentence of imprisonment as a sequel thereto, is a different matter.

12. Corruption by public servants has now reached a monstrous dimension in India. Its tentacles have started grappling even the institutions created for the protection of the republic. Unless those tentacles are intercepted and impeded from gripping the normal and orderly functioning of the public offices, through strong legislative, executive as well as judicial exercises the corrupt public servants could even paralyse the functioning of such institutions and thereby hinder the democratic polity. Proliferation of corrupt public servants could garner momentum to cripple the social order if such men are allowed to continue to manage and operate public institutions. When a public servant is found guilty of corruption after a judicial adjudicatory process Patna High Court CR. APP (SJ) No.140 of 2022(11) dt.15-07-2024 19/22 conducted by a court of law, judiciousness demands that he should be treated as corrupt until he is exonerated by a superior court. The mere fact that an appellate or revisional forum has decided to entertain his challenge and to go into the issues and findings made against such public servants once again should not even temporarily absolve him from such findings. If such a public servant becomes entitled to hold public office and to continue to do official acts until he is judicially absolved from such findings by reason of suspension of the order of conviction, it is public interest which suffers and sometimes, even irreparably. When a public servant who is convicted of corruption is allowed to continue to hold public office, it would impair the morale of the other persons manning such office, and consequently that would erode the already shrunk confidence of the people in such public institutions besides demoralising the other honest public servants who would either be the colleagues or subordinates of the convicted person. If honest public servants are compelled to take orders from proclaimed corrupt officers on account of the suspension of the conviction, the fallout would be one of shaking the system itself. Hence it is necessary that the court should not aid the public servant who stands convicted for corruption charges to hold only (sic) public office until he is exonerated after conducting a judicial adjudication at the appellate or revisional level. It is a different matter if a corrupt public officer could continue to hold such public office even without the help of a court order suspending the conviction. Patna High Court CR. APP (SJ) No.140 of 2022(11) dt.15-07-2024 20/22

13. The above policy can be acknowledged as necessary for the efficacy and proper functioning of public offices. If so, the legal position can be laid down that when conviction is on a corruption charge against a public servant the appellate court or the revisional court should not suspend the order of conviction during the pendency of the appeal even if the sentence of imprisonment is suspended. It would be a sublime public policy that the convicted public servant is kept under disability of the conviction in spite of keeping the sentence of imprisonment in abeyance till the disposal of the appeal or revision.

14. We are fortified in holding so by two other decisions of this Court. One is Dy. Director of Collegiate Education (Admn.) v. S. Nagoor Meera [(1995) 3 SCC 377 : 1995 SCC (L&S) 686 : (1995) 29 ATC 574] . The following observations of this Court are apposite now: (SCC p. 381, para

9) "The more appropriate course in all such cases is to take action under clause

(a) of the second proviso to Article 311(2) once a government servant is convicted of a criminal charge and not to wait for the appeal or revision, as the case may be. If, however, the accused government servant is acquitted on appeal or other proceeding, the order can always be revised and if the government servant is reinstated, he will be entitled to all the benefits to which he would have been entitled to had he continued in service. The other course suggested, viz., to wait till the appeal, revision and other remedies are over, would not be advisable Patna High Court CR. APP (SJ) No.140 of 2022(11) dt.15-07-2024 21/22 since it would mean continuing in service a person who has been convicted of a serious offence by a criminal court."

15. Considering the aforesaid facts of the present case, where the appellant/convict is a man of clean antecedent, where he found for causing single and simple injury on head of the informant/injured, which not appears even corroborating qua nature of weapon as alleged to cause assault, this Court finds that the case of appellant/convict can be considered for suspension of conviction. The special ground for consideration in favour of appellant is that he has incurred disqualification for remaining in service on account of his conviction and because of said disqualification only he has been dismissed from his service, which can be revoked only when conviction shall be stayed, otherwise damage done to petitioner cannot be undone.

16. As to check the extended punishment by way of financial hardship to the wife and innocent minor childrens of petitioner and further as dismissal of Patna High Court CR. APP (SJ) No.140 of 2022(11) dt.15-07-2024 22/22 petitioner is straightway due to conviction in present case, only which by taking as a special circumstances, the order of conviction dated 21.12.2021 as passed against the above appellant/petitioner, namely, Mukesh Yadav in Sessions Trial No. 108/2015 arising out of Nawanagar (Sonbarsa) P.S. Case No. 76 of 2014, where appellant/petitioner convicted for the offences under Sections 147, 148, 149, 341, 323, 324, 307, 379, 504 of the Indian Penal Code is hereby suspended/stayed, till the disposal of present criminal appeal.

17. Accordingly, I.A. No. 03 of 2024 stands allowed and disposed of.

(Chandra Shekhar Jha, J) veena/-

U         T

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Patna High Court - Orders