IN THE HIGH COURT OF JUDICATURE AT PATNA CR. APP (SJ) No.974 of 2008 MUNNA Versus STATE OF BIHAR ----------- 6. 01 .4.2011 I.A.No. 655 of 2011 Appellant Munna, who stands convicted for committing offences under Sections 147,148,323, 304 read with Section 149 of the Indian Penal Code and was directed to suffer rigorous imprisonment for ten years on account of committing the offences under Section 304/149 of the Penal Code, has filed the present interlocutory application with a prayer to suspend his conviction as ordered by the Additional Sessions Judge, Fast Track Court No. 8, Purnia by his judgment and order dated 13.8.2008 and 19.8.2008, respectively, in Sessions Case No. 280 of 2005/ Tr. No.128 of 2008. It was contended on behalf of the appellant that the case arises out of a rivalry between families of two persons who were past and present Mukhiyas on the day of occurrence and the appellant being son of an Ex-Mukhiya has falsely been implicated in this case. It was contended that the appellant is desirous of contesting the ensuing elections for Mukhiya-ship and there being no straightjacket formula for considering this issue, this Court should consider the right of the petitioner to contest the elections as the wishes of a citizen. There are two decisions of this Court – one reported in 2009(2) P.L.J.R. 650 Rajesh Ranjan alias Pappu 2 Yadav Vs. State of Bihar through C.B.I. and the other unreported decision which was passed on a similar petition bearing I.A. No. 1522 of 2010 in Cr. Appeal No. 358 of 2008(D.B.) on 30.9.2010. The scope and ambit of the powers of an appellate court under Section 389(1) Cr. P.C. has been discussed broadly in the unreported order of the Division Bench to which I was also a party in paragraph 6 which runs as under: Section 389(1) Cr.P.C. empowers appellate court to order that execution of sentence or order appealed against be suspended and also, if any convicted person is in confinement that he be released on bail or his own bond. Sub-section(2)of that Section entitles the High Court also to exercise that power in case of an appeal by a person convicted by a sub- ordinate court. It is too well known to be pointed out that if there could not be any conviction, there could not be any question of passing any sentence and, as such, the order of sentence is consequential to the order of conviction. As such, the word „order’ which appears after the words „execution of sentence’ being conjuncted by „or‟ refers to an order of conviction. As soon as an accused is granted bail and he is released from custody, the order of sentence could be said to be suspended automatically as the person is released and he could no longer be said to be serving out the sentence which was directed to be served by him on being inflicted upon him. But, the effect of his conviction remains, till it is suspended. A subsisting order of conviction may entail many disqualifications upon a convicted person. If the conviction is suspended, the effect of such an order is not only that the sentence is automatically stayed as in that situation the convicted person has necessarily to be released from custody but also that the disqualification arising out of the order of conviction may temporarily be erased entitling the convict to contest an election. He is also precluded from serving out the sentence and, thereby, his sentence also stands suspended. It may, as such, be noted that suspending the order of conviction is a very serious judicial business and the order in that behalf may 3 not as ordinarily be granted as the Court is approached. The exceptional nature of an order suspending the conviction of a convict, may be gathered from this fact that the provision mandates the appellate court to record reasons in writing for suspending the order of conviction. What, therefore, implies is that if the appellate court is not inclined to suspend the conviction of a person under Section 389(1) Cr.P.C. then also it may be all the more necessary for the appellate court to record reasons of refusing the prayer because it might ultimately be continuing the disqualification which the convicted person might have incurred on account of being visited with an order of conviction. The above aspect on the scope and ambit of Section 389 (1) Cr.P.C. was considered by this Court while considering a similar prayer in Rajesh Ranjan alias Pappu Yadav Vs. State of Bihar through CBI reported in 2009(2) P.L.J.R 650.” It is true that there is no direct allegation against the present petitioner of dealing any blow but his participation as one of the members of the unlawful assembly armed with deadly weapon, like a firearms, has been upheld by the trial court. As such, he has also been held guilty under Sections 304/149 of the Penal Code. The scope of this Court‟s jurisdiction under Section 389(2) Cr. P.C. is not as broad as it has while deciding an appeal as for consideration of the prayer of the present nature, the Court has simply to consider the evidence in the manner as could be suggestive of sufficiency of material on participation. That appears discussed by the learned trial Judge in his judgment and considering that it could not be said that the findings were completely erroneous or such as could be permitting this Court to direct suspension of the conviction of the petitioner 4 as prayed for. Besides, as regards the contention of the appellant that he is desirous of contesting the ensuing elections for Mukhiya-ship, simply being desirous of contesting election may not be sufficient to entitle a person to an order in his favour suspending his conviction. This Court has already pointed out in Rajesh Ranjan alias Pappu Yadav(Supra) that contesting election may not be a ground for allowing the prayer of the present nature as it may not entail an irreversible consequence upon a person like the petitioner. While so doing this Court had pointed out that “Fighting an election may be a democratic right of a citizen but his wishes of being elected in the election cannot be categorized as any of his rights. In politics, one could not say that his position is irreversible. A person could be holding the highest office of the executive one day but by sheer change in political circumstances, he might be finding himself out of that position and as a mere Member or even as no Member of the House of any legislature or Parliament. Likewise, one could have won and could have been elected as a Member of the Parliament in one particular election, but in the other, he might not be winning the elections or the worst of the possibility could be that if he is affiliated to any particular political party, then that party may not consider him to be fit for being fielded as its candidate in any constituency. Thus, the plea of irreversible consequence appears of no benefit to the appellant. Injustice could not be said to be inflicted upon 5 any one merely because the court has a definite opinion on a particular issue under the special facts and circumstances of the case rather the court could be justified in passing a particular order.” In addition to the above, in the same order rendered in Cr. Appeal No. 358 of 2008) (D.B.) on I.A. No. 1522 of 2010 after having considered all the relevant decisions on constitutional provisions, this Court recorded that suspending the order of sentence may be watering down the constitutional provision not only on exercising right of adult franchise of the citizen but also on contesting an election. For the foregoing reasons, I am not inclined to allow the present interlocutory application and thereby to direct suspension of the conviction of the appellant. The application appears of no merit. It is dismissed. Kanth ( Dharnidhar Jha, J.)