Patna High Court
Sheo Parsan Dubey vs State Of Bihar on 8 September, 2010
Author: Mridula Mishra
Bench: Mridula Mishra, Dharnidhar Jha
CRIMINAL APPEAL No. 1218 OF 2008 AGAINST THE JUDGMENT AND ORDER DATED 18.08.2008 AND 21.08.2008
, PASSED BY ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT NO. II, KAIMUR AT BHABHUA IN SESSIONS TRIAL NO. 210 OF 2005 / 44 OF 2006.
SHEO PARSAN DUBEY, SON OF RAMAWADH DUBEY, RESIDENT OF VILLAGE - BHABHUA, P.S. BHABHUA, DISTRICT - KAIMUR
---------------------------APPELLANT VERSUS STATE OF BIHAR ----------------------------- RESPONDENT ****** PRESENT THE HON'BLE JUSTICE SMT. MRIDULA MISHRA THE HON'BLE JUSTICE SHRI DHARNIDHAR JHA For the Appellant: Shri Kamal Nayan Choubey Sr. Advocate Shri Surendra Kishore Thakur Advocate Shri Ranjit Kumar Advocate For the State: Shri A. Sharma APP ************** Mridula Mishra & Dharnidhar Jha, J.J. I. A. No. 873 of 2010 Interlocutory Application has been filed by the appellant for stay of the conviction under appeal, passed by Additional Sessions Judge, Fast Track Court No. II, Kaimur at Bhabhua in Sessions Trial No. 210 of 2005 / 44 of 2006. By the impugned judgment and order dated 18.08.2008 and 21.08.2008, the 2 appellant has been convicted under Section 302 and 120B of the Indian Penal Code and sentenced RI for life as well as fine of Rs. 25,000/-, in default of payment RI for two and half years.
The appellant has preferred the present appeal against the judgment and order of conviction. By order dated 16.12.2008, the order of sentence was suspended till final disposal of the appeal and the appellant was granted bail. Realization of fine was also stayed.
The present application has been filed for staying / suspension of conviction, as on account of his conviction, the appellant has been dismissed from the post of Assistant Manager, Madhya Bihar Gramin Bank, vide letter no. 1273, issued by the Chairman, dated 10.09.2008.
Sessions Trial No. 210 of 2005 / 44 of 2006 arises out of Chainpur P. S. Case No. 22 of 2005. The case was instituted on the basis of the fardbeyan of informant P.W. 9.
The prosecution case was that Premchand Sinha 3 (deceased) was going on a motorcycle towards Bhojpur Rohtas Gramin Bank. When he reached near Awakhara Hata Road, three motorcycle born criminals on a red coloured Hero Honda Motorcycle came from behind and started pulling the hand of the informant, sitting on rear side of the motorcycle. Premchand Sinha was the pillion rider. One of the criminals, sitting in between the two, fired three shots on Premchand Sinha, due to which both the informant and the deceased fell on the ground. The accused persons, after firing, fled away from the place of occurrence. After felling from motorcycle the informant became unconscious. On regaining consciousness, he found Premchand Sinha lying at some distance and his bag containing key of the main gate of bank and the key of the cashier missing from the place of occurrence.. Informant carried the injured to the Police Station, where he disclosed that Sheo Parsan Dubey (appellant) has conspired to kill him, since he was inimical to the deceased. The prosecution examined 15 witnesses to prove the charges. 4
Counsel for the appellant submits that admittedly he is not the assailant of the deceased and in case the so called dying declaration of the deceased is taken into consideration, at best he can be said to be a conspirator. So far the conspiracy part is concerned, there is no sufficient evidence to prove it. However, the Trial Court has convicted him by the impugned judgment.
The appellant, when being tried by the Trial Court, at that time was posted as Assistant Manger in Bhojpur Rohtas Gramin Bank, which later on merged in Madhya Bihar Gramin Bank. On account of his conviction, as per the rule of Madhya Bihar Gramin Bank, a letter, bearing no. 1273, was issued under the signature of the Chairman on 10.09.2008, whereby the appellant has been dismissed from service. The sole ground for his dismissal is his conviction. As per the rule, in case of conviction in a criminal case, the employee can be dismissed even without any notice to show cause or without any departmental proceeding.
5
The present application, with a prayer to exercise jurisdiction by the Appellate Court under section 389(1) of the Cr.P.C. has been filed by the appellant on the ground that for filing such an application there must be a proper appeal filed against the judgment of conviction and pending before the appellate court. He fulfils the first condition for filing such an application, as a proper appeal has been filed by him against the judgment of conviction. The second condition, for consideration of such application is the special circumstance, due to which irreparable injury will be caused to the appellant. Submission of the counsel is that the appellant fulfills the second condition also.
It is also submitted by Mr. Kamal Nayan Choubey, counsel appearing for the appellant that under section 389 of Cr.P.C. besides suspension of the Order of sentence, conviction can also be suspended / stayed by the Appellate Court, in cases where sufficient ground exists for it. Admittedly as a general rule, conviction can not be suspended / stayed. Only in such 6 cases, where on account of conviction of accused, during pendency of appeal, in case the conviction is not stayed, the loss caused to the appellant will be so serious or irreparable that even after his acquittal on final disposal of the appeal, the loss can not be compensated.
In the case of the appellant, solely on account of his conviction, the appellant has been dismissed from his service as he has incurred disqualification for remaining in service as per the service condition rules.
Counsel for the appellant further submits that the present appeal comes within the category of such special circumstance, in which if conviction is not suspended, the loss caused to the appellant can not be restored, despite his acquittal in the case. In support of this contention, reliance has been placed on several decision of the Supreme Court, where it is held that in certain circumstances, the judgment of conviction can be suspended, besides suspension of the order of sentence.
Counsel for the appellant further submits that 7 undoubtedly this jurisdiction can not be exercised in general cases, but where the circumstances call for it, even the conviction can be stayed. In support of this contention, the ruling of the Apex Court, in case of (Rama Narang Vrs. Ramesh Narang and Others), reported in 1995 (2) S.C.C. 513, has been relied upon, where it has been held as follows:
"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."
Mr. Choubey 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, the appellant has incurred disqualification for continuing in service. Service Condition Rules, applicable in case of the employee of Madhya Bihar Gramin Bank provides that in case of conviction in a criminal case, the employee shall be dismissed without any 8 show cause or departmental proceeding. This is the reason that a dismissal order has been passed against him, even without giving an opportunity to show cause. In case of conviction is not suspended and appeal remains pending for a longer period then as a consequence there is possibility that the appellant will attain the age of superannuation in the meantime, and in case of his acquittal there will not be any chance of rejoining the service. If the appeal is disposed of earlier even then he will not get the monetary relief for the period of dismissal as he will not be able to claim his salary due to non-discharge of his duties for this period.
It has also been submitted that dismissal has also brought his family on the point of starvation as such this will not only damage his life, but also the life of his children, whose education will be stopped and carrier ruined.
Counsel for the appellant further submits that in case on account of conviction, the appellant would have been under suspension then at least he would have been entitled for 9 subsistence allowance, but due to dismissal, even subsistence allowance is also not payable to him. This is all because he has earned a disqualification on account his conviction.
Counsel for the appellant in support of his contention has also placed reliance on a decision of Andhra Pradesh High Court, reported in 2001-BCR-Vol.5-689. In the judgment of Andhra Pradesh High Court, two expressions, judgment and order have been discussed and analyzed and finally it is held that under section 389 of the Code, the Court can order "suspension of the execution of sentence" as well as "the order appeal against". The words "order appeal against" must be given a wider meaning as to include conviction also, so that the Court in appropriate or exceptional cases can suspend an order of conviction. While considering the exceptional circumstances, in this very judgment the election matters and the discharge of a Public Servant for his service has been put in the category of exceptional circumstance, in which the conviction can be suspended under section 389 (1) of the Cr.P.C. 10
While placing reliance on the judgment of Bombay High Court in the case of (Rama Narang Vrs. Ramesh Narang and Others), reported in 1995 (2) S.C.C. 513, it has been held that general the conviction is not suspended, even on filing of the appeal, even if the appellant is released on bail under section 389 of Cr.P.C. by suspending the sentence. However, if the circumstances are such that applicant is likely to suffer irreparable loss, then the Court may suspend even the conviction by exercising powers under section 389 read with section 482 of the Cr.P.C.
Counsel for the State on the other hand placed reliance on a Division Bench Judgment of Patna High Court, reported in 2009 (2) PLJR 650. In this decision, several judgments of the Supreme Court has been discussed and considering the facts and circumstances of the case, the appellant Rajesh Ranjan @ Pappu Yadav, it was held that no exceptional case was made out and the prayer of the appellant, Rajesh Ranjan @ Pappu Yadav for staying the conviction was rejected in the interest of 11 justice. In this detailed judgment, several decisions of the Apex Court was considered and finally it was held that the said prayer was made by the appellant for fighting an election, which can not be considered as an exceptional circumstance, as fighting an election may be democratic right of a citizen, but his wishes of being elected in the election can not be categorized as any of his right. Discussing the right of a citizen of contesting the election, finally it was held "Thus the plea of irreversible consequences appears of no benefit to the appellant. Injustice could not be said to be inflicted upon anyone merely because the Court has a definite opinion on particular issue under the said facts and circumstances of the case, rather the Court be justified in passing a particular order." Considering the antecedent of the appellant, Rajesh Ranjan @ Pappu Yadav, it was also held that "After having considering the prayer in the light of the special facts of the case, we are of the opinion that the prayer made by the appellant for stay of conviction and sentence passed against him by the learned trial 12 judge, through the impugned judgment, is not fit to be stayed in the interest of justice." The Division Bench Judgment reported in 2009 (2) PLJR 650, has rejected the prayer of the appellant in the facts and circumstances of that particular case. This was not the finding of the Division Bench that in exercise of jurisdiction under section 389(1) of Cr.P.C., conviction can not be suspended even in some particular special circumstances.
Considering the facts of the present case, in which the appellant has no criminal antecedent, there is no direct involvement of this appellant in commission of the offence, his role is of a conspirator and there is no sufficient evidence on the point of conspiracy, his case can be considered for suspension of conviction. The special ground in the case of this appellant is that he has incurred disqualification for remaining in service on account of his conviction. Because of this disqualification, he has been dismissed from his service and he can be reinstated only when conviction is stayed. 13
In the special circumstance, which is applicable in the present case, we are of the view that order of conviction as well as sentence passed against the appellant in Sessions Trial No. 210 of 2005 / 44 of 2006 is suspended till the disposal of the Criminal Appeal 1218 of 2008.
This Interlocutory Application is allowed.
(Mridula Mishra, J.) (Dharnidhar Jha, J.) Patna High Court Dated: 8th of September, 2010 AFR / Shashi Kant Mishra