The main legal point established in the judgment is that the court has the power to suspend the order of conviction under Section 389(1) Cr.P.C., and in cases where non-suspension of conviction could entail serious consequences of dismissal from service, the application for suspension of conviction ought to be allowed.

CRL.M.A.10378/2013

1. The present is the second application of the applicant-appellant under Section 389 Cr.P.C. for suspension of order of conviction pending the hearing and final disposal of the appeal.

2. The present appeal is directed against the order of conviction dated 24.07.2012 and was admitted by this Court for final hearing vide order dated 22.08.2012. The sentence imposed upon applicant-appellant by way of the impugned order was also suspended by this Court by way of the said order dated 22.08.2012. Thereafter, the applicant-appel­lant filed an application being Criminal M.A. No. 19687/2012, praying for an or­der/direction that the order of conviction be suspended, on the ground that the depart­ment was proceeding with a departmental enquiry against the applicant-appellant founded on the said conviction. The said ap­plication came to be dismissed by this Court by way of an order dated 17.01.2013. Ag­grieved by the said order dated 17.01.2013, the applicant-appellant preferred a Special Leave Petition before the Hon’ble Supreme Court of India. That petition came to be dis­posed of by the Hon’ble Supreme Court of India by way of an order dated 04.03.2013, observing as follows:-

“After arguing the latter for some time, Shri Kailash Vasdev, learned se­nior counsel appearing for the petitioner requests us to permit the petitioner to withdraw the special leave petition with liberty to approach the High Court. Per­mission sought for is granted and the special leave petition is disposed of as withdrawn with liberty as prayed for.”

3. Thereafter the applicant-appellant has preferred the present application.

4. Mr. Sunil Mittal, learned counsel ap­pearing on behalf of the applicant-appellant has invited my attention to an order dated 21.06.2013 whereby the department (DDA) has, based upon his conviction, imposed the penalty of removal from service upon the ap­plicant-appellant. The applicant-appellant impugns the said order of the department dated 21.06.2013, on the ground that it erro­neously proceeds on the footing that the con­viction of the applicant-appellant is con­firmed, by ignoring the circumstance that the appeal against the order of conviction has been admitted for hearing and has not yet been confirmed by this Court.

5. Mr. Mittal has also invited my attention to the following orders passed by this Court in similar circumstances, in appeals filed on behalf of other persons, similarly situated as the applicant-appellant, whose orders of con­viction were kept in abeyance till the dis­posal of the appeals preferred by them, that were admitted for hearing before this Court:-

(i) CRL.M.A. 11259/2005 in CRL. A. 32/2000

(ii) CRL.M.A. 1147/2005 in CRL. A. 682/2004

6. Mr. Mittal has strenuously urged that this Court on an application made under Sec­tion 389 Cr.P.C. has the power to suspend the operation of the judgment including the order of conviction. Mr. Mittal has further argued that the applicant-appellant is the only bread earner of his family comprising of small children. It has also been pointed out that till date the applicant-appellant has an unblemished record in hand and in his en­tire service period has not even been sus­pended for a day. It has further been pointed out that the order dated 21.06.2013, based on the order of conviction, has not yet been served on the applicant-appellant. Mr. Mittal, learned counsel appearing on behalf of the applicant-appellant thus urges that the order of conviction dated 24.07.2012 be stayed or kept in abeyance till the final disposal of the present appeal.

7. Mr. Mahipal Malik, learned APP has opposed the present application by placing reliance on the decision of the Supreme Court in K.C. Sarin v. CBI, Chandigarh, (2001) 6 SCC 584.

8. Having regard to the totality of the facts and circumstances, since the Appellate Court is permitted under Section 389(1) Cr.P.C. to suspend the order of conviction and more particularly that the appeal of the appli­cant-appellant has been admi