Allahabad High Court
Radheyshyam vs State Of U.P. on 6 December, 2024
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:191918-DB Court No. - 48 Case :- CRIMINAL APPEAL No. - 5398 of 2022 Appellant :- Radheyshyam Respondent :- State of U.P. Counsel for Appellant :- Deepak Singh Yadav,Rajiv Lochan Shukla Counsel for Respondent :- G.A. Hon'ble Siddharth,J.
Hon'ble Nalin Kumar Srivastava, J.
Order on Criminal Misc. Modification Application No. 03 of 2024 In Criminal Appeal No. 5398 of 2022
1. The above noted application has been filed praying for modification of the order dated 21.12.2022 passed by this court on application of appellant for suspension of sentence / bail. It has been prayed that the order of conviction dated 30.06.2022 passed by the Additional Sessions Judge / Special Judge, SC/ST (P.A.) Act, Kushinagar at Padrauna in Session Trial No. 253 of 2001, under Sections- 302, 201 IPC read with Section 34 IPC and Section 3(2) V of SC/ST Act, may be stayed during the pendency of above noted appeal.
2. For ready reference the order dated 21.12.2022 sought to be modified is quoted hereinbelow :-
" Order on Bail Application Shri Rajiv Lochan Shukla, learned counsel for the appellant/applicant, Sri Amit Sinha, learned A.G.A for the State.
Present appeal arises out of impugned judgment and order dated 30.6.2022 passed by learned Additional Sessions Judge / Special Judge, SC/ST (PA) Act, Kushinagar at Padaruna in Sessions Trial No. 253 of 2001, arising out of Crime No. 185 of 1996 under Sections 302, 201 IPC read with Section 34 IPC and 3(2)v Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, (in short 'SC/ST Act') Police Station Vishnupura, District Kushinagar, whereby the appellant has been convicted and sentenced to undergo life imprisonment under Section 302 IPC with a fine of Rs.50,000/-, in default thereof, to further undergo six months additional imprisonment, to undergo three years imprisonment under Section 201 IPC, with a fine of Rs.5,000/-, in default thereof, to further undergo one month's additional imprisonment and to undergo life imprisonment under Section 3(2)v SC/ST Act with a fine of Rs.50,000/-, in default thereof, to further undergo six months additional imprisonment. All the sentences were directed to run concurrently.
By means of the bail application, the appellant / applicant Radheyshyam seeks suspension of sentence and grant of bail.
The prosecution story, as culled out from the F.I.R., is that one Jagarnath gave a written information to the S.O. Vishunpura, District Padarauna on 30.4.1996 that in the morning he had seen dead body of an unknown person lying in the sugarcane field. Police came into action and subsequently it was found that it was the dead body of Shravan (deceased) son of the informant Kamini Devi, who was taken by the accused Radheyshyam from his house and then accused Radheyshyam, Jai Prakash and Mahanth Kamkar killed him. It also came into light during course of investigation that accused Radheyshyam had suspicion that the deceased had illicit relations with his wife. After investigation, charge sheet was filed. During trial accused Mahanth Kamkar died. Accused Radheyshyam and Jai Prakash were convicted and sentenced accordingly.
The learned counsel for the appellant submits:
(i) that the appellant / applicant has been falsely implicated in this case and the learned trial court, without applying its judicial mind, has analyzed the evidence on record in an improper and illegal manner;
(ii) that there is no cogent and reliable evidence against the appellant / applicant in this case;
(iii) that according to the F.I.R. there is no eye witness of the incident and PW-9 in her deposition has implicated the appellant / applicant only on the basis of suspicion;
(iv) that all the witnesses of fact have been declared hostile before the Court and the prosecution has miserably failed to prove its case against the appellant / applicant;
(v) that the evidence on record was absolutely misread and misinterpreted by the learned trial court;
(vi) that there was no motive to commit the present offence and as a matter of fact both sides had cordial family relations;
(vii) that the appellant / applicant is not named in the F.I.R.;
(viii) that no recovery has been made from the possession of the appellant / applicant relating to the present offence ;
(ix) that the last seen theory does not result into a complete chain to establish the guilt of the appellant / applicant;
(x) that the appellant / applicant was on bail during trial and has not misused the said liberty;
(xi) that appellant / applicant is in jail since 30.6.2022 and the appeal is likely to take some time for its final disposal, therefore, he be released on bail.
On the other hand, learned State counsel has vehemently opposed the bail application and submits that the conviction is just and proper and that the period of incarceration undergone by the appellant / applicant is not so long that he may be enlarged on bail. He further submits that the offence of appellant / applicant is very grave and serious in nature and he is not entitled for bail.
We have heard the parties.
Considering the totality of the case, in particular the fact that there is no eye witness of the incident and the last seen theory alone is incapable to complete the chain of circumstances against the appellant / applicant, appellant / applicant was on bail during trial and no instance of misuse of bail has been brought to the notice of the Court and the fact that the appeal may take some time for its final disposal, without further commenting on the merits of the case, we are inclined to release the appellant / applicant on bail.
Let appellant - Radheyshyam be released on bail in connection with the aforesaid Sessions Trial on furnishing a personal bond of Rs.50,000/- (Rupees Fifty Thousand) and two sureties each in the like amount to the satisfaction of the Court concerned.
The Bail application is disposed of.
On acceptance of bail bond and personal bonds, the Lower Court shall transmit photostat copies thereof to this Court for being kept on record.
The execution of sentence awarded to the appellant / applicant shall be suspended accordingly during pendency of this appeal.
List the appeal for final hearing in due course.
Registry to prepare paper book, if not already prepared. "
3. Learned counsel for the appellant submits that although the execution of sentence awarded to the appellant / applicant has been suspended but because order of his conviction has not been stayed by this court hence his reinstatement in service is impossible. He has been deprived of his service by department. Writ-A No. 8783 of 2023 filed against the order of termination of service of appellant/applicant dated 21.09.2022 cannot be of any avail since relief of reinstatement in service cannot be granted by this court in the aforesaid writ petition unless the conviction order of appellant/applicant is stayed. Hence, he has filed the above noted modification application.
4. He has further submitted that the condition of bail can be varied by the court and the bar of Section 362 Cr.P.C will not come in the way. He has relied upon the judgment of the Apex Court in the case of Ramadhar Sahu vs. The State of Madhya Pradesh reported in 2023 LiveLaw (SC) 945, in support of his contention.
5. Learned counsel for the state-respondent has vehemently opposed the submissions made by learned counsel for the appellant/applicant. He has submitted that the learned counsel for the appellant/applicant has not pointed out to any exceptional facts and circumstances which may warrant stay of order of conviction of the appellant.
6. He has further submitted that the sentence awarded to the appellant has already been stayed by this court while releasing him on bail but the stay of order of conviction cannot be allowed in the case of appellant/applicant, keeping in view that he is a convict.
7. We find that with regard to the power of this court to stay the order of conviction, the Apex Court has held in the case of Ravikant S. Patil vs. Sarvabhouma S. Bagali, 2007 (1) SCC 673, that the order of conviction can be stayed by the High Court, after consideration the special reasons and the totality of facts and circumstances of the case. Paragraph nos. 12 to 16.5(A) of the aforesaid judgment require consideration which are quoted hereinbelow :-
"12. The question whether an order of conviction can be stayed, in the absence of a specific provision for such stay in the Code, came up for consideration before this Court in the case of Rama Narang v. Ramesh Narang & Ors., [1995] 2 SCC 513. In the said case, the order that had been passed, while admitting the appeal, by the High Court purporting to be one under Section 389(1) of the Code was to the following effect:-
"Accused be released on bail on his furnishing a personal bond in the sum of Rs.10,000 with one surety in the like amount to the satisfaction of the trial Judge. The operation of the impugned order shall remain stayed."
13. One of the questions that was examined in that case was whether the power under Section 389(1) of the Code could be invoked to stay the conviction. This Court held that an order of conviction by itself is not capable of execution under the Code of Criminal Procedure, but in certain situations, the order of conviction can become executable in a limited sense, inasmuch as it may result in incurring of some disqualification under other enactments; and that in such cases, it was permissible to invoke the power under Section 389(1) of the Code for staying the conviction also. We extract below the reasoning for such a conclusion, given by this Court:
"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."
14. This Court, however, clarified that 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; and that unless the attention of the court to the specific consequences that are likely to fall upon conviction, the person convicted cannot obtain an order of stay of conviction. In fact, if such specific consequences are not brought to its notice, the court cannot be expected to grant stay of conviction or assign reasons relevant for staying the conviction itself, instead of merely suspending the execution of the sentence. In that case, it was found on facts that the appellant therein had not specified the disqualification he was likely to incur under Section 267 of the Companies Act, if his conviction was not stayed. Therefore, this Court refused to infer that the High Court had applied its mind to this specific aspect of the matter and had thereafter granted stay of conviction or the operation of the impugned judgment. Consequently, the order of stay was not construed as a stay of conviction.
15. 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. Be that as it may. Insofar as the present case is concerned, an application was filed specifically seeking stay of the order of conviction specifying that consequences if conviction was not stayed, that is, the appellant would incur disqualification to contest the election. The High Court after considering the special reason, granted the order staying the conviction. As the conviction itself is stayed in contrast to a stay of execution of the sentence, it is not possible to accept the contention of the respondent that the disqualification arising out of conviction continues to operate even after stay of conviction.
16. We may now refer to the several other decisions of this Court, cited by the parties.
16.1. The decision in B.R.Kapur v. State of Tamil Nadu, [2001] 7 SCC 231, will have no application as it was not a case of stay of conviction. In that case, only an order of suspension of sentence was made under Section 389 of the Code. In fact, the petitions seeking stay of the operation of the judgment in the criminal cases were dismissed by the High Court.
16.2. In State of Tamil Nadu v. A.Jaganathan, [1996] 5 SCC 329, the State challenged the order of the High Court which had granted suspension of the conviction as also the sentence, relying on Rama Narang (supra). This Court held that the principle laid down in Ram Narang (supra) was that conviction and sentence can both be suspended only if non-grant of suspension of conviction would result in damage which could not be undone if ultimately the appeal/revision was allowed. On facts, it was found that even if stay of conviction was not granted, no prejudice would be caused to the convicted person, having regard to the fact that when the revisions against the conviction and sentences were ultimately allowed, the damage, if any, caused to the respondents therein with regard to payment of stipends etc. could well be revived and made good to the them. This Court noted that if such trifling matters involving slight disadvantage to the convicted person were to be taken into consideration, every conviction would have to be suspended pending appeal or revision. It was further noted that the High Court did not consider at all the moral conduct of the respondents inasmuch as the respondent Jaganathan who was a Police Inspector had been convicted under Sections 392, 218 and 466 IPC, while the other respondents who were also public servants had been convicted under the provision of Prevention of Corruption Act. Under those circumstances, the discretion exercised by the High Court in suspending the conviction was reversed.
16.3. In K.C.Sareen v. CBI, Chandigarh, [2001] 6 SCC 584, it was held that 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. It was further held that merely because the convicted person files an appeal to challenge his conviction, the court should not suspend the operation of the conviction and the court has a duty to look at all aspects including the ramifications of keeping such conviction in abeyance. The Bench also noted that the evil of corruption has reached a monstrous dimension. While declining the prayer of the appellant for grant of an order of stay of conviction, the Bench observed that when conviction is on a corruption charge against a public servant, the appellate court should not suspend the order of conviction during the pendency of the appeal, even if the sentence of imprisonment is suspended. The Bench further observed that 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. These observations would equally apply when a prayer for stay of order of conviction is made so as to remove the disability to contest an election except, as already noted, in a very exceptional and rare case.
16.4. Lastly, reference may also be made to the decision of this Court in State of Maharashtra v. Gajanan & Anr., [2003] 12 SCC 432. In the said case, relying on the case of K.C.Sareen (supra), it was reiterated that only in exceptional cases, the court should exercise the power of stay of conviction. Since the High Court in the said case had not pointed out any exceptional fact or looked into the ramification of keeping such conviction in abeyance, the order of the High Court staying the conviction was set aside. In the cited case of Union of India v. Atar Singh, [2003] 12 SCC 434, it was noted that the High Court had mechanically passed the order by suspending the conviction and the discretion ought not to have been exercised by the High Court by passing such an order suspending the conviction.
16.5. All these decisions, 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."
8. Apex Court in the case of Afzal Ansari vs. State of Uttar Pradesh, 2024 (2) SCC 189, has also reinstated the same proposition in paragraph nos. 50 to 53 which are also quoted hereinbelow :-
"50. Lok Prahari through General Secretary S.N. Shukla v. Election Commission of India & Ors.11 was cited by Dr. Singhvi. There, a society registered under the Societies Registration Act, 1860 invoked the Public Interest Litigation jurisdiction of this Court under Article 32 of the Constitution seeking, inter alia, a declaratory relief that since the law does not provide for stay of conviction, even in case of stay of conviction (2018) 18 SCC 114 by the appellate court for an offence attracting disqualification under section 8 of the RoP Act, any such stay order does not have the effect of wiping out the disqualification and reviving the membership with retrospective effect and consequently, the seat of the member concerned is deemed to have become vacant with effect from the date of conviction in terms of Articles 101(3)(a) and 190(3)(a) of the Constitution. This Court, having considered Rama Narang (supra), Lily Thomas (supra), Navjot Singh Sidhu (supra) and Ravikant S. Patil (supra), expounded the position of law as follows:
"16. These decisions have settled the position on the effect of an order of an appellate court staying a conviction pending the appeal. Upon the stay of a conviction under Section 389 CrPC, the disqualification under Section 8 will not operate. The decisions in Ravikant S. Patil and Lily Thomas conclude the issue. Since the decision in Rama Narang, it has been well settled that the appellate court has the power, in an appropriate case, to stay the conviction under Section 389 besides suspending the sentence. The power to stay a conviction is by way of an exception. Before it is exercised, the appellate court must be made aware of the consequence which will ensue if the conviction were not to be stayed. Once the conviction has been stayed by the appellate court, the disqualification under sub-sections (1), (2) and (3) of Section 8 of the Representation of the People Act, 1951 will not operate. Under Article 102(1)(e) and Article 191(1)(e), the disqualification operates by or under any law made by Parliament. Disqualification under the above provisions of Section 8 follows upon a conviction for one of the listed offences. Once the conviction has been stayed during the pendency of an appeal, the disqualification which operates as a consequence of the conviction cannot take or remain in effect. In view of the consistent statement of the legal position in Rama Narang and in decisions which followed, there is no merit in the submission that the power conferred on the appellate court under Section 389 does not include the power, in an appropriate case, to stay the conviction. Clearly, the appellate court does possess such a power. Moreover, it is untenable that the disqualification which ensues from a conviction will operate despite the appellate court having granted a stay of the conviction. The authority vested in the appellate court to stay a conviction ensures that a conviction on untenable or frivolous grounds does not operate to cause serious prejudice. As the decision in Lily Thomas has clarified, a stay of the conviction would relieve the individual from suffering the consequence inter alia of a disqualification relatable to the provisions of sub-sections (1), (2) and (3) of Section 8." (emphasis supplied)
51. The unreported decision in Naranbhai Bhikhabhai Kachchadia v. State of Gujarat, relied on by Dr. Singhvi, was rendered on an appeal where the prayer for stay of conviction was declined by the relevant high court. The appellant, a sitting member of Parliament, had been convicted of offences under sections 332, 186 and 143, IPC along with others but acquitted of the more serious offence under section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. Looking to the facts of the case, this Court was of the view that adverse consequences will certainly follow not only to the appellant but also to his constituents in case the conviction remains, and the impact thereof would be irreparable. Considering various factors as delineated in unnumbered paragraph 13, including the somewhat exceptional consequence of the disqualification of the appellant from representing his constituents in Parliament for six years, this Court quashed the prosecution against the appellant only on the condition that the appellant pays to the victim/complainant Rs.5,00,000/- within a week.
52. Finally, the recent decision of this Court in Rahul Gandhi v. Purnesh Ishwarbhai Modi & Anr. was placed on behalf of the appellant wherein this Court observed that section 8(3) of the RoP Act has far-reaching consequences, as it not only affects the right of the appellant Criminal Appeal No. 418/2016 (order dated 29th April, 2016) 2023 SCC OnLine SC 929 to continue in public life but also is a detriment to the right of the electorate which has elected him to represent their constituency.
53. It has been noticed that in Ravikant S. Patil (supra) and Lok Prahari (supra), this Court had considered the decision in K.C. Sareen v. CBI14. That was a case where a bank officer having been convicted for an offence punishable under the Prevention of Corruption Act, 1988 and sentenced to a year's imprisonment with fine of Rs.500/-, had carried the conviction and sentence in appeal whereupon execution of the sentence was stayed. However, in view of the conviction which remained operative, the disciplinary authority imposed the punishment of dismissal from service. The dismissed officer once again moved the relevant high court but without success. The second order dismissing the prayer for stay of conviction was challenged before this Court. Dismissing the civil appeal, this Court ruled that:
"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 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.
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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."
9. After hearing the rival contentions and considering the dictums of Apex Court we find that while granting bail to the appellant/applicant and also suspending his sentence by the order dated 21.12.2022, this court has dealt with merits of the judgment of the trial court and the case of appellant/applicant. There is no dispute that there is power of stay order of conviction of appellant/applicant by this court. We find that due to implication in the present case the service of appellant/applicant was terminated. He has challenged the order of his termination from service before this court by filing Writ A No. 8783 of 2023 wherein counter affidavit has been called by this court by the order dated 26.05.2023 from all the respondents.
10. This appeal is of the year 2022 and there is remote possibility of the same being heard in near future, considering the heavy backlog of old criminal appeals pending before this court since 1982-1983. Appellant/applicant is aged about 55 years and by the time his appeal would be decided, he would cross the age of his retirement long before, therefore, the purpose of the stay of sentence of appellant/applicant would be frustrated. If the order of conviction of appellant is allowed to operate employer will never permit him to work. If ultimately this appeal is allowed, irreparable loss would be caused to appellant regarding loss of his service and all the consequential benefits. Right to life guaranteed under Article 21 of Constitution of India includes right to livelihood too.
11. After considering the entirety of facts and circumstances of the case, we are of the view that the order of conviction dated 30.06.2022 passed by the trial court deserves to be stayed by modification of the order dated 21.12.2022 passed by this court.
12. The modification application is allowed.
Order Date :- 06.12.2024
Rohit
(Nalin Kumar Srivastava, J.) (Siddharth, J.)