1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. Kesri Lal vs. State of Rajasthan S.B. Criminal Misc. Petition No.1262/2008 under Section 482 Cr.P.C. for modification of the judgment and order dated 5.6.2008 passed by Additional Sessions Judge No.1, Deeg (Bharatpur) in criminal appeal no.5/2003. *** Date of Order :::::: 17.9.2008 HON'BLE MR.JUSTICE G.S.SARRAF Mr. Dharam Gopal Chaturvedi along with Mr. Mukesh Sharma for the petitioner. Mr. Arun Sharma, P.P. Reportable: This criminal misc. petition under Section 482 Cr.P.C. has been filed with the prayer that as the petitioner Kesari Lal has been released under the Probation of Offenders Act,1985 (hereinafter referred to as `the Act') therefore, it be declared that his conviction shall not affect his service career and to modify the judgment dated 5.6.2008 passed by Additional Sessions Judge No.1, Deeg (Bharatpur) in criminal appeal no.5/2003 accordingly. Briefly stated the facts are that by judgment dated 1.4.2003 passed by Additional Chief Judicial Magistrate, Deeg (Bharatpur) in criminal case no.247/1998 the petitioner Kesari Lal and another was convicted under Sections 498A, 406 IPC whereas three other accused persons were convicted under Sections 498A, 406 read with Section 120B IPC and all of them were sentenced to 2 various terms of imprisonment and fine. The petitioner and the four other co-accused filed an appeal. Learned appellate court by the impugned judgment dated 5.6.2008 upheld the conviction but set aside the sentence imposed against them and released them on probation. The petitioner has now filed this misc. petition for a declaration that since he has been released on probation therefore, his service career shall not be affected by his conviction. Heard learned counsel for the petitioner and learned P.P. Learned counsel for the petitioner submits that the petitioner is a teacher in the Education Department of the State Government and that although no departmental proceedings in relation to the conviction have been initiated sofar but in view of the provisions contained in Section 12 of the Act, the petitioner is entitled to a declaration that his service career will not be affected by the conviction. He has placed reliance on 1985 Cr.L.R. (SC) 285, 1982 Cr.L.R.(SC)7, 2008(1) RCC 189, 1994 Cr.L.R. (Raj.) 504 and 1988 (1) RLR 591. Learned P.P. opposes the prayer and argues that the order of release on probation is merely in substitution of the sentence passed against the petitioner and Section 12 of the Act does not completely obliterate the effect of the conviction. He argues that Section 12 of the Act does not preclude the department from taking action for misconduct leading to the offence or to the conviction and the person is not exonerated from departmental punishment. He places reliance on 2007(9) SCC 86 and (1990) 2 SCC 426. The order of release on probation comes into 3 existence only after the accused is found guilty and is convicted of the offence. Thus the conviction of the accused or the finding of the court that he is guilty cannot be washed out at all because that is the sine qua non for the order of release on probation of the offender. The order to release on probation is merely in substitution of the sentence to be imposed by the court. The factum of guilt on the criminal charge is not swept away merely by passing the order releasing the offender on probation. The stigma continues and the finding of the misconduct resulting in conviction must be treated to be conclusive. It may be true that in absence of any statutory rule operating in the field departmental action cannot be taken solely on the basis that he has been found guilty of the commission of any offence irrespective of the fact whether the same involved any moral turpitude but it is different thing to say that an order made under the provisions of the Act is by itself sufficient to arrive at a conclusion that despite commission of the offence no disciplinary proceedings should be initiated. Section 12 of the Act only directs that the offender shall not suffer disqualification, if any, attaching to a conviction of an offence under such law. Such law in the context is other law providing for disqualification on account of conviction. For instance, if a law provides for disqualification of a person for being appointed in any office or for seeking election to any authority or body in view of his conviction, that disqualification by virtue of Section 12 of the Act stands removed. That in effect is the scope and effect of Section 12 of the Act. But that is not the same thing to state that Section 12 4 of the Act precludes the department from taking action for misconduct leading to the offence or to his conviction. Section 12 of the Act is not intended to exonerate the accused from departmental punishment. I am supported by the judgment of the Apex Court reported in (2007) 9 SCC 86 and (1990) 2 SCC 426. In view of the above discussions, I find no merit in this misc. petition. Consequently the misc. petition stands dismissed. (G.S.Sarraf),J. Bairwa