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2008(3) Crimes 188 (Gau.)
GAUHATI HIGH COURT
I.A. Ansari, J.
Jalal Ahmed Mazumdar—Petitioner
versus
State of Assam—Respondent
Criminal Revision No. 351 of 2007
Decided on 12.12.2007
For the Petitioner:A.K. Bhattacharjee, A. Choudhury, F.K.R., Ahmed and S. Islam, Advocates.
For the Respondent: B.B. Gogoi, Addl. P.P.
IMPORTANT POINT
An order of conviction and/or sentence can be suspended by every Appellate Court, including the High Court, under Section 389(1), Cr.P.C. provided that the facts of a given case so warrant.
Headnote:Criminal Procedure Code, 1973—Section 389(1) —Power of appellate Court to suspend conviction with sentence—Appellant Court while exercising powers under Section 389(1) Cr.P.C. can suspend operation of order of conviction—Order granting stay of conviction must not be a rule but shall be an exception—It is only in rare cases and in exceptional and compelling circumstances that Court may by recording convincing reasons suspend order of conviction—Petitioner was convicted under Section 341 and 324/34 I.P.C. and sentenced to 2 years imprisonment—Appellate Court suspended sentence—Suspension of conviction prayed on plea that petitioner wanted to contest panchayat election—Conviction did not appear to be without evidence or wholly against weight of evidence—No reason to suspend conviction only on ground that petitioner was to contest election.
Held: It needs to be pointed out that while it is, in specified cases, under Section 389 (3), mandatory for the Court, which convicts a person, to allow him to go on bail if he intends to present an appeal against his order of conviction, the exercise of power under Section 389(1), Cr.P.C. is not routine, but discretionary, for, it is necessary for the Appellate Court to record reasons if it has to allow suspension of sentence and/ or conviction. It is not, therefore, in every case that an order of conviction appealed against can be suspended. Far from this, even for suspension of sentence, Section 389(1) makes it mandatory for the Court to record reasons. More compelling must be the circumstances for permitting the Court to suspend an order of conviction.
What crystallizes from the above discussion is that an order of conviction and/or sentence can be suspended by every Appellate Court, including the High Court, under Section 389(1), Cr.P.C. provided that the facts of a given case so warrant. However, suspension of the sentence is not equivalent to suspension of conviction. While suspension of sentence permits liberty of physical movement to an appellant subject to such conditions as the Appellate Court may impose, suspension of order of conviction removes the constraints arising out of the order of conviction. Hence, it is only in rare cases and in exceptional and compelling circumstances that the Court may, by recording convincing reasons, suspend an order of conviction. In the present case, no sustainable ground has been made out by the petitioner to enable him to seek suspension of the order of conviction, which he has appealed against. This apart, it may also be pointed out that have closely examined the impugned judgment and order of conviction, but I do not find that the present case is one, wherein the accused-petitioner stands convicted without any evidence or wholly against the weight of the evidence on record.
In the result and for the reasons discussed above, this revision is not admitted and the same shall accordingly stand dismissed. (Paras 21 to 23)
Result: Revision dismissed.
JUDGMENT
I.A. Ansari, J.—The principal question, raised in this revision, is as to whether a Sessions Judge can, pending an appeal against an order of conviction and sentence, suspend, besides execution of the sentence, the operation of the order of conviction passed against the appellant. Another equally important question, raised in this revision, is as to whether it is enough for a Court, while exercising power under Section 389(1) Cr.P.C., to suspend the operation of the order of conviction, if the appellant, shows that the order of conviction would, if not suspended, cause irreparable damage to him or is it necessary, even in such a case, for the Court, to ascertain if the order of conviction is prima facie supported by evidence on record? In other words, one of the questions, which needs to be answered, in this revision, is as to whether merit of the appeal is a factor, which needs to be taken into account, while considering the question as to whether, during pendency of an appeal, an order, convicting the appellant, needs to be suspended or not? Yet another question of great significance, which this revision raises, is as to whether suspension of sentence during pendency of an appeal shall automatically follow suspension of the order of conviction or whether the Appellate Court shall, in order to suspend the order of conviction of the appellant under Section 389(1), Cr.P.C., apply parameters different from the ones, which may be applied for suspending the sentence passed against such an appellant?
2. Before I deal with the questions, raised in the present revision, it is necessary that the material facts, leading to this revision, are taken note of. These facts may, in a nutshell, be set out as follows:
(i) Based on an F.I.R., lodged by one Allauddin, a case was registered by the police, the case of the informant being, in brief, thus: On 14.4.2000, at about 9.00 p.m., when the informant, Allauddin, accompanied by one Nuruddin, was returning home from the residence of his Advocate, Abdul Mazid, the informant noticed accused Jalal Ahmed Mazumdar (i.e. the present petitioner) standing near Shiva Hotel, who shouted ‘catch hold of him’, whereupon accused Tutu Mia Laskar came out from behind a Maruti Van parked nearby, accused Jalal Ahmed Mazudmar caught hold of the informant’s collar and accused Tutu Mia Laskar gave a blow on the informant’s abdomen by a knife-like weapon. Accused Abdul Haque Laskar was also present with the assailants. Having been so injured, when the informant fell down on the ground, all the three accused went running to the shop of Jalal Ahmed Mazumdar, whereupon Nizamuddin and some others came to the place of occurrence and took the injured, on a vehicle, to Dholai Hospital. An F.I.R with regard to the occurrence was lodged by the injured and a case came to be accordingly registered against the three accused aforementioned. During investigation, police seized blood-stained wearing apparels from the injured and, upon completion of investigation, submitted charge-sheet against all the three accused under Sections 341/324/307/34, I.P.C.
(ii)During trial, all the three accused persons pleaded not guilty to the charges framed against them under Sections 341, 347 and 307 read with Section 34, I.P.C. In support of their case, prosecution examined as many as 11 witnesses, whereupon statements of the accused persons were recorded under Section 313, Cr.P.C. In their statements, all the accused denied that they had committed the offences alleged to have been committed by them, the case of the defence being that of total denial.
(iii) Having found accused Abdul Haque Laskar not guilty of the offences charged with, learned Assistant Sessions Judge, Cachar, Silchar, acquitted the said accused of the charges framed against him. The learned Trial Court also acquitted the remaining two accused, namely, Tutu Mia Laskar @ Samsul and Jalal Ahmed Mazumdar (i.e. the present petitioner) of the offence under Section 307 read
