Back
2003 (1) Crimes 1
Delhi High Court
Mahmood Ali Khan, J.
K. Bhagyanath —Petitioner
versus
State —Respondent
Crl. R. No. 893 of 2002
Decided on 31-10-2002
Counsel for the parties:
For the Petitioner:Dr. P.R. Thakur, Advocate.
For the Respondent:Ms. Richa Kapoor, Advocate.
Important Point
Section 389(1) Cr .P.C. gives power to court to suspend conviction during pendency of appeal in case conviction results in some disquali-fication or consequences flowing from it are serious.
Headnote:Criminal Procedure Code, 1973 — Section 389(1) — Suspension of conviction besides suspension of sentence during pendency of appeal — Court has power to sus-pend conviction during pendency of appeal in case it results in some disqualification or consequences flowing from it are serious — Petitioner, a bank employee, con-victed by Magistrate for offences under Section 420 read with 120B IPC, under Sections 511 and 420 read with 120B IPC, under Section 380 read with 120B IPC and under Section 468 IPC — After conviction show cause issued by employer bank to dismiss petitioner from service — Considering that serious consequences would flow from conviction order, lower appellate Court in not considering the prayer to suspend conviction during pendency of appeal acted with material irregularity and impugned order suffered illegality. (Para 1)
Result: Revision allowed.
Order
Mahmood Ali Khan, J.— This criminal revision petition is directed against an order of an Additional Sessions Judge dated 22-10-2002 whereby he declined to suspend the order of conviction of the petitioner in an appeal preferred by him against an order of a Metropolitan Magistrate.
2. The petitioner is found guilty and has been convicted by an Addi-tional Chief Metropolitan Magistrate to undergo rigorous imprisonment for one year and to pay a fine of Rs. 10,000/- for offence under Section 420B, IPC read with Section 120B, IPC, to undergo rigorous imprisonment for one year and to pay a fine of Rs. 5,000/- for offence under Sections 511 and 420 read with Section 120B, IPC. He has further been convicted to undergo rigorous imprisonment for two years and to pay a fine of Rs. 10,000/- for offence under Section 380, IPC read with Section 120B, IPC and he has also been convicted to undergo rigorous imprisonment for one year and to pay a fine of Rs. 5,000/- for offence under Section 468, IPC. All these sentences were to run concurrently.
3. The petitioner filed an appeal against this order. His sentence of imprisonment was suspended by the Additional Sessions Judge. The petitioner filed an application for suspension of his conviction under Section 389(1) of the Cr. P.C. That application was dismissed by the Court by order dated 22-10-2002 which is impugned in this revision petition.
4. The short question for consideration is whether the conviction of the accused for the offences as above mentioned, are liable to be suspended during the pendency of the appeal before the Additional Sessions Judge. Counsel for the petitioner has argued that the petitioner was a bank employee. After the order of conviction and sentence he has received a show cause notice dated 16-10-2002 from his employer bank asking him to show cause by 25-10-2002 as to why he be not dismissed from service. He referred to Annexure C which is the show cause notice. He also referred to page 12 which showed that the employer bank proposes to impose on him the punishment of dismissal from service with immediate effect in view of the conviction order passed by the Court against him. Counsel for the petitioner has relied upon the judgment of the Supreme Court in Rama Narang v. Ramesh Narang and Ors.1; Padam Singh v. State of U.P.2 and Retti Deenabandu and Others v. State of Andhra Pradesh3, in support of his argument that if the order of conviction of the petitioner is not suspended the consequences would dismissed by the employer bank. Though he has tried to point out to certain alleged lacunas and deficiencies in the evidence of the petitioner by reading out certain portions for the judgment of the Metropolitan Magistrate but it will be in appropriate for this Court to meticulously examine the evidence and decide upon the point raised since the order of the learned Metropolitan Magistrate is the subject matter of the appeal which is pending for hearing before the Appellate Court. Therefore, I refrain from commenting upon the merit of the case of the petitioner in appeal and confine this order only to the consideration of his prayer for suspension of the conviction order.
5. Learned APP for the State has opposed the suspension of sentence and has argued that the appeal is fixed for disposal on 18-11-2002. According to her the petitioner is employed in a bank and the bank has already extended the time to show cause by one week and as such the petitioner may again approach the employer bank to give him further time till the disposal of the appeal to show cause against the notice issued.
6. The learned Additional Sessions Judge has relied upon the observation of the Supreme Court in K.C. Sareen v. CBI, Chandigarh4, where the Supreme Court has made the following observation:
“When a public servant was found guilty of corruption after a judicial adjudicatory process conducted by a Court of Law, judiciousness demands that he should be treated as corrupt until he is e
