1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.3191 OF 2009 IN CRIMINAL APPEAL NO.687 OF 2008 Vikas s/o Vilas Chandane ... APPLICANT VERSUS State of Maharashtra ... RESPONDENT ----- Mrs. S.S. Jadhav, Advocate for the applicant Shri S.D. Kaldate, APP, for the respondent ----- CORAM : NARESH H. PATIL AND SHRIHARI P. DAVARE, JJ. DATED : 14th October, 2009. ORAL ORDER : 1. Heard Mrs. S.S. Jadhav, learned counsel for the applicant and Shri S.D. Kaldate, learned A.P.P. for the respondent/State. 2. Mrs. Jadhav, learned counsel for the applicant submits that the applicant was employee working with 2 Maharashtra State Electricity Board as a Lineman. The applicant was convicted for an offence punishable under Section 302 of the Indian Penal Code by lerned Sessions Judge, Osmanabad by judgment and order dated 10.10.2008 in Sessions Case No. 33/2008. The applicant preferred an appeal to this Court, which came to be admitted on 26.11.2008 by this Court (Coram : P.V. Hardas & P.R. Borkar, JJ.). By an order dated 14.1.2009, this Court (Coram : N.V. Dabholkar & N.D. Deshpande, JJ.) released the applicant on bail. 3. The applicant has now preferred an application and prayed for following reliefs : “(B) That, the order of conviction under Section 302 of I.P.C., substantive sentence of life imprisonment recorded against the applicant in Session Case No.33/2008, by the Ld. Sessions Judge, Osmanabad, be stayed during the pendency of the Criminal Appeal No.687/2008. (C) Pending hearing and final disposal of the Criminal Appeal No.687/2008, Interim Relief in terms of Prayer Clause-B, be granted in favour of the applicant in the interest of justice.” 4. The learned counsel for the applicant submits that, as 3 the applicant did not commit any offence against the public, the order of conviction is required to be stayed and suspended by this Court so that the order of termination passed against the applicant could be withdrawn/ cancelled, which would allow the applicant to serve the Department. Reliance was placed on observations of the Apex Court in paragraph Nos.10 and 11 of the judgment reported at 2006 AIR SCW 6365 (Ravikant S. Patil Vs. Sarvabhouma S. Bagali), which read as under : “10. The question whether an order of conviction can be stayed, in the absence of a specific provision for such stay in the Code, came up for consideration before this Court in the case of Rama Narang v. Ramesh Narang & Ors. (1995) 2 SCC 513. In the said case, the order that had been passed, while admitting the appeal, by the High Court purporting to be one under Section 389(1) of the Code was to the following effect:- “Accused be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the trial Judge. The operation of the impugned order shall remain stayed.” One of the question that was examined in that case was whether the power under Section 389(1) of the Code could be invoked to 4 stay the conviction. This Court held that an order of conviction by itself is not capable of execution under the Code of Criminal Procedure, but in certain situations, the order of conviction can become executable in a limited sense, inasmuch as it may result in incurring of some disqualification under other enactments; and that in such cases, it was permissible to invoke the power under Section 389(1) of the Code for staying the conviction also. We extract below the reasoning for such a conclusion, given by this Court: “That takes us to the question whether the scope of Section 389(1) of the Code extends to conferring power on the Appellate Court to stay the operation of the order of conviction. As stated earlier, if the order of conviction is to result in some disqualification of the type mentioned in Section 267 of the Companies Act, we see no reason why we should give a narrow meaning to Section 389(1) of the Code to debar the Court from granting an order to that effect in a fit case. The appeal under Section 374 is essentially against the order of conviction because the order of sentence is merely consequential thereto; albeit even the order of sentence can be independently challenged if it is harsh and disproportionate to the established guilt. Therefore, when an appeal is preferred under Section 374 of the Code the appeal is against both the conviction and sentence and, therefore, we see no reason to place a narrow 5 interpretation on section 389(1) of the Code not to extend it to an order of conviction, although that issue in the instant case recedes to the background because High Courts can exercise inherent jurisdiction under section 482 of the Code if the power was not to be found in Section 389(1) of the Code.” This Court, however, clarified that 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; and that unless the attention of the Court to the specific consequences that are likely to fall upon conviction, the person convicted cannot obtain an order of stay of conviction. In fact, if such specific consequences are not brought to its notice, the Court cannot be expected to grant stay of conviction or assign reasons relevant for staying the conviction itself, instead of merely suspending the execution of the sentence. In that case, it was found on facts that the appellant therein had not specified the disqualification he was likely to incur under Section 267 of the Companies Act, if his conviction was not stayed. Therefore, this Court refused to infer that the High Court had applied its mind to this specific aspect of the matter and had thereafter granted stay of conviction or the operation of the impugned judgment. Consequently, the order of stay was not construed as a stay of conviction. 6 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. Be that as it may. Insofar as the present case is concerned, an application was filed specifically seeking stay of the order of conviction specifying that consequences if conviction was not stayed, that is, the appellant would incur disqualification to contest the election. The High Court after considering the special reason, granted the order staying the conviction. As the conviction itself is stayed in contrast to a stay of the execution of the sentence, it is not possible to accept the contention of the respondent that the disqualification arising out of conviction continues to operate even after stay of conviction. 5. Leanred counsel for the applicant further placed reliance on order passed by the Division Bench of this Court (Coram : Dr. S. Radhakrishnan & N.V. Dabholkar, JJ.), dated 28.3.2008 in Writ Petition No.6883/2007. We have perused the judgment and orders cited before us. 7 6. Learned A.P.P. Shri Kaldate submitted that the applicant being a public iservant, was accused of a serious offence, who has committed murder of his colleague lineman and is convicted and sentenced for life for an offence punishable under Section 302 of the Indian Penal Code. The learned A.P.P. submitted that even earlier the applicant had raised identical prayer while the application for bail was decided by this Court on 14.1.2009. In the facts of the case, the learned A.P.P. objects to the staying of order of conviction. 7. We are informed that the applicant was terminated on 21.1.2009 with retrospective effect from 10.10.2008. We have perused the prayer clauses of the earlier application i.e. Criminal Application No.3980/2008 and the prayer clauses of the present application i.e. Criminal Application No.3191/2009. In both the criminal applications, the prayer is to suspend the substantive sentence. At this stage, the learned counsel Mrs. Jadhav submitted that, inadvertently the prayer for suspension of order of conviction could not be typed while framing prayer clause (B). In the interest of justice, we allow the counsel to amend the prayer clause (B) and even argue. We have considered the case of the applicant for seeking suspension of order of conviction. 8 8. While releasing the applicant on bail by an order dated 14.1.2009, the earlier Division Bench recorded the submissions of the counsel Mrs. Jadhav that the case may turn out to be a case not covered under Section 302 of the Indian Penal Code but under Section 304-II of the Indian Penal Code. 9. It is settled principle that an order of grant of stay of conviction is not the rule but is an exception, which shall be resorted to in rare cases depending on the facts of a case. 10. In State of Tamil Nadu Vs. A. Jaganathan (1996) 5 SCC 329, the Apex Court held that the principle laid down in the case of Rama Narang Vs. Ramesh Narang & Ors. (1995) 2 SCC 513 was that conviction and sentence can both be suspended only if non grant of suspension of conviction would result in damage which could not be undone if ultimately the appeal/ revision was allowed. It is necessary to be seen as to whether any prejudice would be caused to the applicant. 11. The fall out of the stay of order of conviction in the facts of this case would be probably service benefit to the applicant and the learned counsel reasonably expects that in 9 case of suspension of order of conviction, the order of termination which had already taken effect in the year 2008, would be set aside and the applicant would be reinstated in service. 12. In case the appellant is acquitted from the charges levelled against him in this appeal, still the applicant would be in a position to seek the service benefits in accordance with law. 13. In the facts of the case, the facts of the judgments cited before us are not applicable to the facts of the case. The applicant is accused of the serious offence. The employer of the applicant decided to terminate the applicant. It was pointed out that earlier the applicant was suspended. The applicant was terminated w.e.f. 10.10.2008. In the facts of the case, we are not inclined to stay the order of conviction passed by the trial Court. The application, therefore, stands rejected. [ SHRIHARI P. DAVARE, J.] [ NARESH H. PATIL, J.] fmp/cri3191.09