1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application [APPA] No. 360 of 2011 in Criminal Appeal No. 234 of 2011 (Ajay Subhas Meshram Vs. State of Maharashtra) Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. S.G. Loney, Advocate for the Applicant. Mr. D.B. Patel, APP for the State/Non-Applicant. CORAM : M. N. GILANI, J. DATE : 15 th JUNE, 2011. Heard. This is an application presumably made under Section 389 of Code of Criminal Procedure for suspension of conviction. Applicant along with two other accused persons were tried before learned Sessions Judge, Yavatmal, in Sessions Trial No. 69/2009, for the offences punishable under Sections 307, 504 and 506 read with Section 34 of Indian Penal Code. Learned Sessions Judge, Yavatmal, by his judgment and order dated 10/05/2011, convicted the present applicant and other accused for the offences punishable under Sections 307 and 324 read with Section 34 of Indian Penal Code and sentenced each of them to suffer rigorous imprisonment for five years for the offence punishable under Section 307 read with Section 34 of Indian Penal Code and to suffer rigorous imprisonment for one year for the offence punishable under Section 324 read with Section 34 of Indian Penal Code. This Court by order dated 20th May, 2011, suspended the execution of substantive sentences pending hearing of the 2 Cri. Appeal No. 234/2011. Now the applicant is coming with a prayer that, the order of conviction be suspended. According to him, he is serving as a Peon in the District Court, Yavatmal. If the conviction is not suspended, he may be dismissed from service. The District Judge, Yavatmal has already issued 'Show Cause Notice' calling upon him to show cause as to why he should not be dismissed from service. Therefore, this application. The learned Advocate for the applicant relied upon the decision in Navjot Singh Sidhu Vs. State of Punjab and another, reported in (2007) 2 SCC 574, wherein it has been observed that, Section 389(1) Cr.P.C. 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. Thus 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 obtain an order of stay of conviction. Further, grant of stay of conviction can be resorted to in rare cases depending upon the special facts of the case (emphasis mine). Learned Advocate appearing for the applicant contended that after the offence was registered and till the trial is concluded, the applicant continued to discharge his official duty as a Peon on the establishment of District Court, Yavatmal. Because of the conviction, he has been served with the 'Show Cause Notice' by learned District Judge, Yavatmal. The execution of the substantive sentence has already been 3 suspended. He has all chance of getting the appeal decided in his favour. Without there being any stay to the order of conviction, the action proposed by the District Judge, Yavatmal, would ultimately result in his dismissal from service. In Navjot Singh Sidhu's case (supra), the Hon'ble Apex Court clarified that, grant of stay of conviction can be resorted to in rare cases depending upon the special facts of the case. It is contended by learned Advocate for applicant that the applicant is not habitual criminal nor had been involved in other criminal cases and except the present case, he was never involved or much less convicted for a serious offence. He had never misused the bail granted to him during trial. In fact the allegations that he has assaulted Rajnikant with iron pipe have not been proved. Therefore, he has all chances of getting relief in the appeal, which is before this Court. Bare perusal of reasons mentioned in paragraph no. 7 of the application show that they cannot be termed as special facts. These are incidental consequences, which ensue when a person employed is charged with an offence involving moral turpitude. Therefore, they cannot be termed as a special facts. If at all conviction is set aside, an employee has a right to be reinstated in service unless he has been found guilty in the departmental proceedings on the same set of facts. For the reason that the consequence of dismissal or removal from service would ensue if conviction is not stayed, legal course of action cannot be stalled. Such a case would not fall within the category of rare case. The action, of dismissal or removal from service on the ground that an employee has suffered conviction for the serious offence being in accordance with 4 law and service Rules, cannot be stalled. In the result, there being no merit in this application, it is dismissed. JUDGE *sdw