1 (Appa 1547 of 2010) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1547 OF 2010 IN CRIMINAL APPEAL NO. 436 OF 2010 Gyansagar Rajkaran Pandey ...Applicant Vs. The State of Maharashtra ...Respondent ----- Mr.Samir A. Vaidya for Applicant Mr.P.S. Hingorani-APP for the State ----- CORAM: V.M. KANADE & M.L.TAHALIYANI, JJ. DATED: 15th November, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the Applicant and the learned APP for the State. 2. The Applicant is convicted for the offence punishable under section 304 Part II and is sentenced to suffer R.I. for 7 years and also directed to pay fine. The Applicant has filed this application seeking stay to the order of conviction passed by the Trial Court. 3. Brief facts are as under. The Applicant was working as a constable with the Railway Protection Force (RPF). The facts are that on 2 (Appa 1547 of 2010) the date of the incident, the Applicant and his superior officer were on patrolling duty at the Railway Yard, they noticed that three persons were intruding in the railway yard by scaling down the wall with the help of a rope. Two persons were apprehended, one person ran away. When these two persons were being taken to the office, according to the Applicant, one of them took out a knife and gave stab wound on the stomach to the Applicant and as a result, according to the Applicant, in self defence he fired a shot from his service rifle, as a result of which, the intruder died on the spot. Two complaints were filed by the police. One complaint was filed against the intruder, who was prosecuted for criminal trespass and another complaint was filed against the Applicant herein and his colleague for the offence punishable under section 302 r/w. 34 of the Indian Penal Code. The Trial Court convicted the intruder for the offence of criminal trespass and the Applicant was acquitted of the offence punishable under section 302 of the Indian Penal Code. He, however, was convicted for the offence punishable under section 304 Part II and was sentenced to suffer R.I. for seven years. 4. It is submitted by the learned counsel appearing on behalf of the Applicant that he has been exonerated by the Court of inquiry which was held by the department. 3 (Appa 1547 of 2010) However, in view of the conviction by the Court, his services have been terminated and he has already preferred an appeal against the said order. It is submitted that the Applicant was doing his duty of protecting the railway property and on account of assault by the deceased with a knife, he tried to defend himself and exercised his right of private defence. It is submitted that, therefore, this is a fit case where the order of conviction is liable to be stayed. 5. On the other hand,the learned APP for the State has vehemently opposed this application. It is submitted that normally this Court is slow in granting stay to the order of conviction. He submitted that the incident in question occurred when the intruder was being taken to the office and not while they were scaling down with the aid of rope from the wall. It was submitted that it was always open for the Applicant to have opened fire in the air first and instead of that he had committed the said offence. 6. After having heard both the counsel at length, in our view, this is a fit case where the order of conviction should be stayed. It is a well settled position in law that normally the order of conviction which is passed by the Trial Court is not stayed unless special circumstances are shown by the Appellant. Sub-section (1) of Section 389 confers power not only to suspend the execution of 4 (Appa 1547 of 2010) sentence and to grant bail but also to suspend the operation of the order appealed against which means the order of conviction. This question has been examined by the three Judge Bench of the Supreme Court in the case of Rama Narang v.Ramesh Narang [(1995) 2 SCC 513]. In the said case, the Apex Court observed that; “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.” This view of the Apex Court has been reiterated and followed by another three -Judge Bench in Ravinkant S. Patil v.Sarvabhouma S. Bagali [(2007) 1 SCC 673]. After referring to the decisions on the issue viz. The State of T.N. v. A. Jaganathan [(1996) 5 SCC 329], K.C. Sareen v CBI [(12001) 6 SCC 584], and State of Maharashtra v. Gajanan [(2003) 12 SCC 432]. The Apex Court observed in paragraph 16.5 as under: “16.5. All these decisions, while recognising the power to stay conviction, have cautioned and clarified that such power should be 5 (Appa 1547 of 2010) exercised only in exceptional circumstances where failure to stay the conviction, would lead to injustice and irreversible consequences.” The Apex Court in the case of Ravikant S. Patil (supra) observed in paragraph 15[11] as under :- “15.[11]. 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. An order of stay, of course, does not render the conviction non- existent, but only non-operative.” The Apex Court in the case of Navjyot Singh Sindhu vs. State of Punjab and Another [(2007) 2 Supreme Court Cases 274), has observed as under: “Before proceeding further it may be seen whether there is any provision which may 6 (Appa 1547 of 2010) enable the Court to suspend the order of conviction as normally what is suspended is the execution of the sentence. Sub-section (1) of Section 389 says that pending any appeal by a convicted person, the appellate court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond. This sub-section confers power not only to suspend the execution of sentence and to grant bail but also to suspend the operation of the order appealed against which means the order of conviction. 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 7 (Appa 1547 of 2010) obtain an order of stay of conviction. Further, grant of stay of conviction can be restored to in rare cases depending upon the special facts of the case.” 7. From the observations made by the Apex Court in the said case, it is abundantly clear that this Court while exercising its power under section 389(i) should normally be very slow in granting stay to the order of conviction. However, in exceptional cases, the Court can exercise this power. 8. In the present case, it is an admitted position that the Applicant and his colleague were on patrolling duty in a railway yard. It is also admitted position that the deceased and the other intruder came down in the railway yard with the help of rope, after climbing from a wall. According to the Applicant, while they were being taken to the office, the deceased took out a knife and injured him on his stomach. It is an admitted position that the Applicant received an injury on his stomach. There was no personal motive for the Applicant against the deceased or the intruder. It is also established that the deceased and the co-accused had trespassed in the said property since one of them has been convicted by the Trial Court for the offence of criminal trespass. 8 (Appa 1547 of 2010) 9. In the light of these peculiar facts, the act of the Applicant of opening fire through his service rifle has to be taken into consideration. It was the duty of the Applicant to protect himself and the railway property and for that purpose, the service rifle was provided to him and for that purpose according to the Applicant, the rifle was used. The Applicant may have a good chance of succeeding in the criminal appeal by claiming right of private defence and right of defending railway property. Taking over all view of the matter, in our view, this is a fit case where the order of conviction should be stayed. 10. Application is, accordingly, allowed. The order of conviction passed by the Sessions Court dated 9th April, 2010 in Sessions Case No.741 of 2007 is stayed, pending the hearing and final disposal of the criminal appeal. Criminal application is allowed and disposed of. Hearing of the appeal is expedited. (M.L.TAHALIYANI J.) (V.M. KANADE J.)