IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 Crl.MC.No. 2130 of 2009() ------------------------------------ CRL.MP. NO.1575/2009 IN CRA. NO.377/2009 OF THE ADDL. SESSIONS COURT-I, THIRUVANANTHAPURAM. S.T. NO.2282/2003 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KATTAKKADA. ......... PETITIONER(S): PETITIONER ------------------------- PEERU MUHAMMED,S/O. ABOOBACKER, ASHAD MANZIL, KOTTAKKUZHI, NEAR KANDALA MARKET, MARANALLOR DESOM,MARANALLOOR VILLAGE. BY ADV. MR.SOORAJ T.ELENJICKAL RESPONDENT(S): COUNTER PETITIONER -------------------------- THE STATE OF KERALA THROUGH CIRCLE INSPECTOR OF POLICE, KATTAKKADA POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR.GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2130 of 2009 -------------------------- ORDER Petitioner is the appellant in Crl.A.No. 377/2009 on the file of Additional Sessions Court- I, Thiruvananthapuram. Petitioner was convicted for offences under Sections 323 and 341 of Indian Penal Code, which is challenged in the criminal appeal. Crl.M.P.No.1575/2009 was filed to suspend the conviction contending that petitioner, being a Police Constable, is liable to be removed from service unless the conviction is suspended. By order dated 25.6.2009 learned Additional Sessions Judge dismissed the petition holding that there is no provision for suspending the conviction and under Section 389 of Code of Criminal Procedure, only the sentence could be suspended. This petition is filed to quash the order dated 25.6.2009 and to grant suspension of the conviction. CRMC 2130/09 2 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. The argument of the learned counsel is that learned Additional Sessions Judge did not correctly appreciate the scope of Section 389 of Code of Criminal Procedure as declared by the three Judge Bench of the Apex Court in Rama Narang v. Ramesh Narang ((1995) 2 SCC 513). This decision was followed in Navjot Singh Sidhu v. State of Punjab (AIR 2007 SC 1003) and therefore, learned Additional Sessions Judge was not justified in dismissing the petition for the reason that there is no provision for suspending the conviction. Learned counsel also argued that under sub-section (2) of Section 389, the power is available to this Court also and therefore, conviction is to be suspended. 4. Section 389(1) provides that pending an appeal by a convicted person, appellate court may order that execution of the sentence or order CRMC 2130/09 3 appealed against be suspended and if he is in confinement, he be released on bail or on his own bond. The Apex Court in Rama Narang's case (supra) held that power under sub-section (1) of Section 389 is not only to suspend the sentence but extends to suspension of order of conviction also. But stay of conviction is not the rule, but an exception to be resorted to in rare cases depending upon the facts of the particular case. The legal position is that 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 obtain an order of stay of conviction. Grant of stay of conviction can be resorted to only in rare cases depending upon the CRMC 2130/09 4 special facts of the case. 5. Order dated 25.6.2009 shows that petition was dismissed for the sole reason that there is no provision for suspending the conviction. In the light of the law laid by the Apex court, as stated above, learned Additional Sessions Judge has powers under sub-section (1) of Section 389 to stay the conviction also, though it is only in rare cases stay of conviction could be ordered. As learned Additional Sessions Judge did not consider the question whether circumstances of the case warrant stay of order of conviction, order dated 25.6.2009 is set aside and Crl.M.P.No.1575/2009 is remitted to Additional Sessions Court-I, Thiruvananthapuram for fresh disposal in accordance with law, in the light of the decisions referred to above, without any delay. Petition is disposed. 6th July, 2009 (M.Sasidharan Nambiar, Judge) tkv