U.B. Saha, J.

1. The instant application under Section 389 of the Code of Criminal Procedure (for short the 'Code') is filed by the petitioner Shri Dipak Ranjan Deb, a convict in Case No. Special 01 of 1996, for staying the execution of the order of sentence dated 30.1.2010 passed by the learned Special Judge, Tripura, Agartala in the aforesaid Special Case wherein upon conviction the petitioner was sentenced to suffer rigorous imprisonment for ten years and also to pay a fine of Rs.1,00,000/-, in default to suffer further rigorous imprisonment for one year for the offence committed under Section 409 of the Indian Penal Code (for short 'IPC').

2. Heard Mr. M.Mukherjee, learned counsel along with Mr. BN Majumder and Mr. S.Lodh, learned counsel for the petitioner and Mr. A.Lodh, learned Asstt. SG appearing for the respondent CBI.

3. The petitioner/convict pleaded in his petition for suspending the order of sentence mainly on the ground, inter alia, that though he preferred appeal (Crl. Appeal No.09 of 2010) against the judgment passed by the learned Special Judge in the aforesaid special case but there is no possibility of hearing of the said appeal within a reasonable period. It is also urged therein that the whole conviction is based on inadmissible evidence and more so, the co-accused who were alleged to be directly involved with the alleged transaction were acquitted by the learned trial court whereas the present petitioner has been convicted relying on certain documents which are carbon copies which are not admissible in evidence and not only that the original of those carbon copies also were even not placed before the learned trial court. It is further pleaded that there is every possibility of acquittal of the present petitioner/convict from the charges leveled against him.

In support of his aforesaid contention learned counsel referred to the decision of the Apex Court in Malay Kumar Ganguly v. Dr.Kunal Saha AIR 2010 SCW 769.

4. Mr. Mukherjee while urging for suspension of sentence would contend that the petitioner/convict was all along on bail before the learned trial court prior to the order of conviction and awarding sentence and he never misused the bail granted to him, which itself is a good ground for suspending the order of sentence passed by the learned trial court. He further contended that the appeal being the statutory right of a convict, the trial court's verdict has to be considered not to attain finality and when an appeal is filed against the said verdict wherein an order of conviction is passed that has to be treated as non est in the eye of law. According to him, Section 389(1) of the Code is enacted by the legislature to protect the personal liberty of an accused who is convicted by the court so that he can prefer appeal and till the appeal is finally heard the accused/convict should be treated as an innocent one. Unless the court considers a convict innocent while hearing the appeal then the purpose of filing the appeal would be frustrated though learned counsel fairly submitted that mere filing of an appeal does not ipso facto entitle an accused/convict to get an order of suspension of sentence unless a prima facie case is made out, inter alia, that the judgment and order of conviction passed by the learned court below is based on no evidence. He further urged, inter alia, that no doubt corruption by public servant has now reached monstrous dimension, but that does not mean a person who is not involved in the corruption has to be convicted by a court of law on mere presumption. The learned special court was not considering the general corruption in the public life or public service while deciding the special case in which the petitioner was allegedly involved, rather it was the duty of the learned special court to consider whether the present petitioner was involved with the alleged corruption in any way or not.

5. In support of his aforesaid contention, Mr. Mukherjee relied upon a judgment of the A