jpc appa946-11.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 946 OF 2011 IN CRIMINAL APPEAL NO.588 OF 2010 Kamlesh Satyaprakash Agarwal (Bansal)... Applicant Versus The State of Maharashtra ... Respondent Mr. Murtaza Nazmi a/w Mr. A. A. Khan for the applicant Mrs. K. V. Saste, APP for the State CORAM:- A.M. THIPSAY, J. DATED :- 1st August, 2011. P.C. : 1. Heard Mr. Nazmi, the learned advocate for the applicant and Mr. Saste, the learned APP for the State. 2. The applicant was one of the four accused in Sessions Case No. 700 of 2009 which was in respect of the offences punishable under sections 498-A, 304(B), 306, 323, 504 and 506 of the Indian Penal Code read with section 34 of the Indian Penal Code. The learned Additional Sessions Judge, who tried the case, acquitted the other accused in the said case, but convicted the applicant in respect of the offences punishable under Section 498-A and 306 of the Indian Penal Code. The appeal filed by the applicant challenging the said conviction and jpc appa946-11.sxw 2 sentence, imposed upon him by the Additional Sessions Judge, is pending. The substantive sentences imposed by the learned Additional Sessions Judge have been suspended till hearing and final disposal of the appeal. 3. By the present application, the applicant prays that the order of conviction as recorded by the learned Additional Sessions Judge be suspended till disposal of the appeal. The applicant had previously also made a similar application ( Cri. Application No. 425/2011) which was disposed of by the Court by stipulating that the appeal itself shall be expeditiously heard. A date- 19th July, 2011- was fixed for hearing of the appeal. It is however, a fact that inspite of directing expeditious hearing of the appeal, it has not been possible to hear the same due to the pressure of bail applications and admission matters involving urgency. 4. Under the circumstances, the present application has been made. 5. The applicant is working as a Scientific Assistant-B in the Nuclear Power Corporation of India Ltd. The learned advocate for the applicant submits that the applicant has now been served with an order by the disciplinary authority imposing a penalty of dismissal from service upon the applicant on account of the conviction. He submits that the applicant jpc appa946-11.sxw 3 is occupying staff quarters alongwith his parents who are aged. He submits that as a consequence of the dismissal, the applicant may, now, be forced to vacate the said premises, which would cause great hard- ship and prejudice to the applicant. He also submits that the applicant has a good case on merits and expects to succeed in the appeal. 6. The learned APP submits that though the sentence imposed by the trial Court can be suspended during the pendency of the appeal, ordinarily the order of conviction cannot be suspended. There is no dispute about this legal preposition. It it has been held that an order of conviction can be suspended only in very rare and exceptional cases. Moreover, it cannot be done without referring to the apparent merits of the matter. 7. I have considered the matter. The contention of the applicant is that the charge framed against him was not of offences punishable under section 498-A and 306 of the Indian Penal Code simplicitor, but it was by application of the provisions of section 34 of the Indian Penal Code. It is also contended that though the evidence against all the accused was identical and the same, the others have been acquitted, but the applicant has been convicted. Certainly these contentions would need examination. The Court is not in a position to take up the appeal for hearing immediately. The offences in respect of which the jpc appa946-11.sxw 4 applicant has been convicted have nothing to do with his service as a Scientific Officer-B with the Nuclear Power Corporation of India Ltd. In my opinion, if the applicant is forced to face the consequences of the conviction, resulting into dismissal and requiring him vacate the premises allotted to him by his employer, it would cause unwarranted hardship to him. This is one of the rare cases where this Court should intervene and suspend the conviction 8. In the result, the application is allowed. 9. The order of conviction as recorded by the learned Additional Sessions Judge shall stand suspended, pending the hearing and final disposal of the appeal. 10. The appeal, nevertheless shall be expeditiously heard. It is fixed for final hearing on 17th August, 2011. (A.M. THIPSAY, J=.)