(Per: HONOURABLE MR JUSTICE NAVANITI PRASAD SINGH)

I A No 269 of 2012

This application has been filed by Jhari Yadav @ Akhilesh Yadav, son of late Kali Prasad Yadav. By this application, this applicant, who is appellant No 2 in this appeal, has prayed for suspension of conviction in terms of Section 389(1) of Criminal Procedure Code (CrPC).

2. A supplementary affidavit to the interlocutory application has been filed in which it is stated that the father of this applicant, namely, Kali Prasad Yadav was working as a Constable in Special Central Jail at Bhagalpur and died in harness in the year, 2007. This applicant then made an application for compassionate appointment immediately thereafter being the eldest son of late Kali Prasad Yadav and being a Matriculate. While his application for being appointed on compassionate ground was pending, on 04.07.2009, he alleges that he was falsely implicated in a criminal case in which ultimately in Sessions Trial Case No 696 of 2010 by judgment dated 19.11.2011 and sentencing order dated 21.11.2011, he, alongwith others, has been convicted for an offence punishable under Sections 302/34 of Indian Penal Code (IPC) and Section 27 of the Arms Act. The present appeal is from the said conviction and sentence of life imprisonment. When the appeal was admitted by this Court, this Court, vide order dated 25.11.2011, released the appellants that is Rabindra Pandit and this applicant Jhari Yadav @ Akhilesh Yadav on bail. It is submitted that now the authorities are to grant compassionate appointment to this applicant and if the sentence is not stayed, it would cause him irreparable injury as he is the eldest member in the family and would be the only bread earner. If he is only to get this employment, the entire family will suffer irreparable loss and injury. It is stated that his younger brother Pramod Yadav is not a Matriculate and moreover, in 2008, when the application was made, he had just become a major. He is, thus, ineligible to be considered for appointment. The rest of the boys are minors. It is, therefore, submitted that if the conviction is not stayed then the whole family would suffer irreparable loss.

3. We have considered the matter at length. In our view, Section 389 (1) of CrPC contemplates two things, one stay of conviction and the other stay of sentence. The effects of the two are different. Neither of the two can be demanded by the appellant, who has been found guilty, as a matter of right. It is upon the discretion of the Court based upon the facts and circumstances of the case that the stay is to be granted. The stay of sentence inures to the benefit of the appellant by way of bail and the stay of conviction inures to the benefit of the appellant by removing the stain of conviction so long as the stay operates. If sentence alone is stayed that is bail granted, a person would still suffer disabilities of conviction. One of those disabilities would be that he is not entitled to any Government employment. That is the situation here.

4. Various judgments have been referred to to persuade us to stay the conviction. We have perused the same. One of the judgments is in the case of K C Sareen –Versus- CBI, Chandigarh (2001) 6 Supreme Court Cases 584. In this case, the petitioner was a public servant and had been convicted on corruption charges. The consequence of the conviction was that he was dismissed from service. He prayed in terms of Section 389 (1), CrPC for stay of conviction inasmuch as he was suffering from the dismissal of his service. The High Court and the Apex Court both rejected the plea of stay on the ground that the public policy is to keep a person out of employment so long as he suffers conviction. No irreparable injury was to be caused. The Court held so because if the appeal was allowed and his conviction was set aside, he would have been reinstated with all benefits because his dismissal was based only upon his conviction. Then there is another judgment on the