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[Cites 22, Cited by 0]

Madhya Pradesh High Court

Aman Lal Kol vs The State Of Madhya Pradesh on 14 February, 2025

Author: Vishal Mishra

Bench: Vishal Mishra

                                                             1                               CRA-11847-2023
                                       IN THE HIGH COURT OF MADHYA PRADESH
                                                    AT JABALPUR
                                                    CRA No. 11847 of 2023
                                            (AMAN LAL KOL Vs THE STATE OF MADHYA PRADESH )



                           Dated : 14-02-2025
                                 Shri Prakash Upadhyaya - Senior Advocate with Shri S.Diwan -
                           Advocate for the appellant.
                                 Shri A.S. Baghel - Government Advocate for respondent/State .

Heard on I.A. No.18373/2024 : an application under Section 389(1) of Cr.P.C. seeking suspension of conviction pending disposal of the criminal appeal.

2. It is argued that the appellant has been convicted for offence under Section 376(2)(n) of IPC and sentenced to R.I. for 20 years and to fine of Rs.5000/- with default stipulations. He was a government servant working as a Junior Engineer in the department of Electricity and due to his conviction his services have been terminated. It is pointed out that looking to the facts and circumstances of the case, there is every likelihood of the appeal being allowed.

3. Counsel appearing for the appellant has pointed out that the victim was a major aged about 32 years. The allegation against the appellant is that on false pretext of marriage the appellant has made physical relations with the victim. It is argued that since 30.03.2008 till 12.12.2020 the victim and the appellant were known to each other and during this period i.e. almost for 12 years the physical relations were made. The victim was already a married woman whose marriage was solemnized with one Vijay in the year 2004.

Signature Not Verified Signed by: LORETTA RAJ Signing time: 07-03-2025 5:14:29 PM

2 CRA-11847-2023 There are no documents placed on record to show that she has ever divorced Vijay. Once the earlier marriage was already in existence then there is no occasion of re-marriage. Victim is a major and she was aware of the same. Therefore the allegation made against the appellant that on false pretext of marriage the physical relations were made is not acceptable. Even otherwise, the physical relations were made with the consent of the victim. The consequence of registration of a criminal case and subsequent conviction has led to termination of the services of the appellant. The appeal is of the year 2023. Looking to the pendency of the appeals, the same will take a long time for disposal. Under these circumstances he has prayed for stay of the conviction.

4. Learned counsel for the appellant has relied upon the judgments passed by the Hon'ble Supreme Court in the case of Afjal Ansari v. State of U.P. :

(2024) 2 SCC 187, Shivshankar v. State of Karnataka : (2019) 18 SCC 204 and Pramod Suryabhan Pawar v. State of Maharashtra : (2019) 9 SCC 608.

5. Per contra counsel appearing for the State has vehemently opposed the contentions. It is submitted that in terms of the settled legal propositions of the law the stay of conviction can be granted in exceptional circumstances. He has relied upon the judgment in the case of Navjot Singh Sidhu v. State of Punjab and another (2007) 2 SCC 574. It is argued that merely the fact that the services of the appellant who was a government servant has been terminated owing to registration of a criminal case and after facing trial he has been convicted under Section 376(2)(n) of IPC for 20 years RI and merely the fact that his services are terminated cannot be the sole ground for Signature Not Verified Signed by: LORETTA RAJ Signing time: 07-03-2025 5:14:29 PM 3 CRA-11847-2023 suspension of conviction.

6. Learned counsel for the respondent has further placed reliance upon the judgment passed by the Hon'ble Supreme Court in the case of Lok Prahari through its General Secretary, S.N. Shukla v. Election Commission of India and others: (2018) 18 SCC 114. It is pointed out that the stay of conviction under Section 389(1) of Cr.P.C. can be granted in exceptional circumstances when there is a disqualification. The disqualification will continue to operate in terms of some other act if the condition is not stayed. He has further relied upon the judgment passed in the case of State of Maharastra through CBI v. Balkrishna Dattatrya Kumbhar : (2012) 12 SCC 384 and has argued that the Hon'ble Supreme Court in the aforesaid case has held that the staying of order of conviction cannot be granted only on the ground that an employee may lose his job, if the same is not done. It is argued that the learned trial Court after appreciating the evidence on record has clearly arrived at a conclusion that the appellant was found guilty of commission of offence. Accordingly, he was punished for offence under Section 376(2)(n) of IPC and sentenced to R.I. for 20 years and to fine of Rs.5000/-. The statement of victim since from the stage of making the complaint to the police authorities till the recording of evidence before the trial Court is consistent. The intention of the appellant is to be gathered from the evidence placed on record. Merely, the fact that the appellant and the victim were in relationship for last 12 years cannot be the sole ground for staying the conviction. It may be a good ground for grant of suspension of sentence which is granted by this Court vide order dated 06.12.2023. Under Signature Not Verified Signed by: LORETTA RAJ Signing time: 07-03-2025 5:14:29 PM 4 CRA-11847-2023 these circumstances, staying of conviction is unwarranted. He has prayed for dismissal of the application.

7. Heard learned counsel for the parties and perused the record.

8. The sole question which is for consideration before this Court is whether looking to the facts and circumstances of the present case, the conviction of the appellant can be suspended or stayed.

9. The Hon'ble Supreme Court in the case of Lok Prahri (supra) has held as under-

"12- Section 389 (1) of the Code of Criminal Procedure, 1973, empowers the appellate court, pending an appeal by a convicted person and for reasons to be recorded in writing to order that the execution of a sentence or order appealed against, be suspended. In the decision in Rama Narang v Ramesh Narang 5, a Bench of three judges of this Court examined the issue as to whether the court has the power to suspend a conviction under Section 389 (1). This Court held that an order of conviction by itself is not capable of execution under the Code of Criminal Procedure, 1973. But in certain situations, it can become executable in a limited sense upon it resulting in a disqualification under other enactments. Hence, in such a case, it was permissible to invoke the power under Section 389 (1) to stay the conviction as well -
"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."
Signature Not Verified Signed by: LORETTA RAJ Signing time: 07-03-2025 5:14:29 PM

5 CRA-11847-2023

13. In Navjot Singh Sidhu v. State of Punjab [Navjot Singh Sidhu v. State of Punjab, (2007) 2 SCC 574 (2007) 1 SCC (Cri) 627 : AIR 2007 SC 1003] a Bench of two learned Judges of this Court held that a stay of the order of conviction by an appellate court is an exception, to be resorted to in a rare case, after the attention of the appellate court is drawn to the consequences which may ensue if the conviction is not stayed. The Court held: (SCC pp. 581-82, para 6) "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."

14. The above position was reiterated by a Bench of three Judges of this Court in Ravikant S. Patil v. Sarvabhouma S. Bagali [Ravikant S. Patil v. Sarvabhouma S. Bagali, (2007) 1 SCC 673 : (2007) 1 SCC (Cri) 417] , after adverting to the earlier decisions on the issue viz. Rama Narang v. Ramesh Narang [Rama Narang v. Ramesh Narang, (1995) 2 SCC 513] , State of T.N. v. A. Jaganathan [State of T.N. v. A. Jaganathan, (1996) 5 SCC 329 : 1996 SCC (Cri) 1026] , K.C. Sareen v. CBI [K.C. Sareen v. CBI, (2001) 6 SCC 584 : 2001 SCC (Cri) 1186] , B.R. Kapur v. State of T.N. [B.R. Kapur v. State of T.N., (2001) 7 SCC 231] and State of Maharashtra v. Gajanan [State of Maharashtra v. Gajanan, (2003) 12 SCC 432 :

2004 Supp SCC (Cri) 459] . This Court concluded as follows: (Ravikant S. Patil case [Ravikant S. Patil v. Sarvabhouma S. Bagali, (2007) 1 SCC 673 : (2007) 1 SCC (Cri) 417] , SCC p.

679, para 15).

"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. As 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 the consequences if conviction was not stayed, Signature Not Verified Signed by: LORETTA RAJ Signing time: 07-03-2025 5:14:29 PM 6 CRA-11847-2023 that is, the appellant would incur disqualification to contest the election. The High Court after considering the special reason, granted the order [Sarvabhouma S. Bagali v. Ravikant S. Patil, 2005 SCC OnLine Kar 799] 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. 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 [Ravikant S. Patil v. Sarvabhouma S. Bagali, (2007) 1 SCC 673 : (2007) 1 SCC (Cri) 417] and Lily Thomas [Lily Thomas v. Union of India, (2013) 7 SCC 653 : (2013) 3 SCC (Civ) 678 : (2013) 3 SCC (Cri) 641 :

(2013) 2 SCC (L&S) 811] conclude the issue. Since the decision in Rama Narang [Rama Narang v. Ramesh Narang, (1995) 2 SCC 513] , 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 [Rama Narang v. Ramesh Narang, (1995) 2 SCC 513] 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 Signature Not Verified Signed by: LORETTA RAJ Signing time: 07-03-2025 5:14:29 PM 7 CRA-11847-2023 conviction ensures that a conviction on untenable or frivolous grounds does not operate to cause serious prejudice. As the decision in Lily Thomas [Lily Thomas v. Union of India, (2013) 7 SCC 653 : (2013) 3 SCC (Civ) 678 : (2013) 3 SCC (Cri) 641 : (2013) 2 SCC (L&S) 811] 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."

10. In the case of Balakrishna Dattatrya (supra) wherein the case of State of Punjab v. Navraj Singh : AIR 2008 SC 2962 was relied on, it is held-

"12- Thus, in view of the aforesaid discussion, a clear picture emerges to the effect that, 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 examined 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.
xxx 15- Thus, in view of the aforesaid discussion, a clear picture emerges to the effect that, 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 examined 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."

11. In this regard reference can be had of another judgment of Hon'ble Supreme Court in the case of Shyam Narain Pandey Vs. State of UP ; (2014) 8 SCC 909 -

"5. 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.
6. 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 Signature Not Verified Signed by: LORETTA RAJ Signing time: 07-03-2025 5:14:29 PM 8 CRA-11847-2023 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."

12. From the aforesaid it is apparently clear that merely the fact that the accused-appellant being a government servant and has lost his job because of registration of criminal case and subsequent conviction, cannot be considered to be ground for staying the conviction. The same cannot fall under the category of exceptional cases. It is settled principle of law that in case the accused who is a government servant is guilty of the criminal charges levied against him and is convicted then the consequences has to follow and he cannot be continued in government job till the time he is acquitted. Where conviction is stayed, the effect is that the conviction will not be operative from the date of stay, but it will not render the conviction non-existent but it will only be non-operative. Therefore, the applicant will not be taken back in service, because conviction still exists, it has become non operative due to Signature Not Verified Signed by: LORETTA RAJ Signing time: 07-03-2025 5:14:29 PM 9 CRA-11847-2023 stay order of the Court.

13. In the present case the charges which are levied against the appellant are serious in nature. It may be a good ground for suspension of sentence but it cannot be stated to be a good ground for staying of conviction. Even otherwise, in terms of the settled propositions of law the cogent reasons are to be assigned why the conviction should be suspended. There are no reasons assigned apart from the fact that the petitioner who was working as a Junior Engineer in the department of electricity due to conviction has been terminated from his service. The said reason cannot amount to an exceptional circumstance warranting suspension of conviction.

14. Under these circumstances, and following the judgments passed by the Hon'ble Supreme Court in the aforementioned cases, no relief can be extended to the petitioner.

15. I.A. No.18373/2024 sans merit and is accordingly dismissed. 

                                   (VISHAL MISHRA)                         (AVANINDRA KUMAR SINGH)
                                        JUDGE                                       JUDGE
                           L.Raj




Signature Not Verified
Signed by: LORETTA RAJ
Signing time: 07-03-2025
5:14:29 PM