THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD CRIMINAL PETITION No.7461 of 2009 DATED:16.09.2009 Between: G.Chandra Sekhar Naidu .. Petitioner And Sri Srikanth, Sub Inspector of Police, Tiruchanoor Police Station, Chittoor District and others .. Respondents THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD CRIMINAL PETITION No.7461 of 2009 ORDER: Heard Sri C.Masthan Naidu, learned counsel for the petitioner, and Sri A.Ramesh, learned counsel representing the learned Public Prosecutor for the fifth respondent. No notice is being ordered to respondents 1 to 4, as the matter is being disposed of, at the stage of admission. The petitioner is aggrieved by the order passed in Crl.M.P.No.97 of 2009 in Crl.A.No.62 of 2009 by the III Additional District and Sessions Judge, Tirupathi on 22.06.2009, suspending the order appealed against pending disposal of the main appeal on execution of bonds with similar conditions imposed by the trial Court to the satisfaction of the trial Court. The petitioner in the Criminal Petition referred to the factual matrix that led to the conviction of respondents 1 to 4 in C.C.No.36 of 2008 on the file of the Judicial Magistrate of First Class, Satyavedu, Chittoor District and contended that he was not made a party to the application for suspension of judgment, in spite of he being the complainant who set the criminal law into motion and has not been heard before the impugned order is passed, which is not in tune with the accepted principles under Section 389(1) of the Code of Criminal Procedure. Section 389 of the Code of Criminal Procedure, or for that matter any other provision under the Code or the Criminal Rules of Practice and Circular Orders does not mandatorily require any advance notice or an opportunity of hearing either to the Public Prosecutor or to the de facto complainant, in case of a private complaint, from which the appeal arises, before the appellate Court exercises its jurisdiction under Section 389 of the Code. However, it is seen from the copy of the impugned order that the petitioner herein has in fact been shown as the first respondent and it was recited in the order that the Public Prosecutor had appeared for the respondent/complainant. Though, it is stated so in the impugned order, it is clear from the averments of the petitioner that the Public Prosecutor did not receive any instructions from him while appearing during the hearing of the petition and the impugned order does not state anything specifically about the petitioner being put on notice of the petition or hearing of the same. While no opinion is being expressed on the merits of the order and as to whether the facts and circumstances of the case, justify suspension of the order/judgment of conviction itself, instead of suspending the sentence imposed by the order/judgment of conviction appealed against, the order passed cannot be considered to be without jurisdiction and the only question in controversy can be whether such jurisdiction was exercised in accordance with law. Under the circumstances referred to above, it will be and should be open to the petitioner to approach the appellate Court with an appropriate application to recall the suspension of the order/judgment of conviction appealed against before it by placing the appropriate material and circumstances before the appellate Court which are relevant for such consideration. The same cannot fall within the bar of Section 362 of the Code of Criminal Procedure, as the impugned order is neither a judgment nor a final order disposing of the case and is only an interlocutory adjudication intended to be in operation during the pendency of the appeal, akin to an order granting cancelling bail. Therefore, as the impugned order cannot be considered to be without jurisdiction warranting exercise of inherent jurisdiction available only in the rarest of rare cases, the Criminal Petition should fail, but the petitioner is at liberty to approach the Court of the III Additional District and Sessions Judge, Tirupathi in Crl.A.No.62 of 2009 to vary, modify or cancel the order passed in Crl.M.P.No.97 of 2009 in Crl.A.No.61 of 2009, dated 22.06.2009 and any such request through an appropriate application by the petitioner shall be considered and disposed of, on merits, in accordance with law, by the said Court after giving every reasonable opportunity of hearing to the petitioner, the Additional Public Prosecutor and the appellants. The Criminal Petition is ordered accordingly. ___________________ G. BHAVANI PRASAD, J 16th September 2009 KH