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(RAJASTHAN HIGH COURT)
(JAIPUR BENCH)
K. S. RATHORE AND BHANWAROO KHAN, JJ.
Khemraj – Appellant
Vs.
State of Rajasthan. - Respondent
Criminal Misc. Application No. 784 of 2008 in Cri. Appeal No. 478 of 2008, Decided on : 21-4-2009.
Section 389(1) of the Code of Criminal Procedure allows the appellate Court to suspend the execution of the sentence or order appealed against and release the convicted person on bail or on their own bond. The power to suspend an order of conviction, apart from the order of sentence, is not alien to Section 389(1) of the Code, but its exercise should be limited to very exceptional cases. An order granting stay of conviction is an exception and should be resorted to in rare cases depending on the special facts of the case. The appeal is a statutory right, but asking for staying the conviction order is not a right and should be examined based on the facts of the case. The Court has the discretion to suspend the conviction if there are special reasons to do so. The Court should not suspend the conviction order merely because the convicted person has filed an appeal or because the sentence has been suspended by the appellate Court. The Court should consider the consequences that may arise if the conviction is not stayed. The Court should also consider the special facts of the case before granting stay of conviction.
Fact of the Case:
The accused applicant, Khemraj, has been convicted and sentenced for various offences under the Indian Penal Code. He has filed a miscellaneous application seeking to stay the conviction order. The accused applicant is the sole earning member of his family and argues that the conviction order will cause prejudice and adversely affect his family. He has also filed an appeal against the conviction order, and the sentence has been suspended by the Division Bench of the Court. The accused applicant seeks to stay the conviction order to maintain his employment and livelihood. The Court considers the provisions of Section 389(1) of the Code of Criminal Procedure and various judgments of the Supreme Court and High Courts in similar cases. The Court concludes that an order granting stay of conviction is an exception and should be resorted to in rare cases depending on the special facts of the case. The Court finds that the accused applicant has not shown any special facts to warrant the stay of the conviction order. The Court dismisses the application for staying the conviction order.
Finding of the Court:
Ratio Decidendi:
Result: The Court rejects the application for staying the conviction order.
u/S. 147IPC Rigorous Imprisonment for three months with a fine of Rs. 500/-, In default of payment of fine to further undergo one month's rigorous Imprisonment.
u/S. 148 IPC Rigorous Imprisonment for one year with a fine of Rs.1,000/-, In default of payment of fine to further undergo two months rigorous Imprisonment.
u/S. 323/149 IPC Rigorous Imprisonment for three months with a fine of Rs. 500/-, In default of payment of fine to further undergo one month's rigorous Imprisonment.
u/S. 324/149 IPC Rigorous Imprisonment for one year with a fine of Rs. 1,000/-, In default of payment of fine to further undergo two months rigorous Imprisonment.
u/S. 326/149 IPC Rigorous Imprisonment for three years with a fine of Rs. 2,000/-, In default of payment of fine to further undergo four months( rigorous Imprisonment.
u/S. 307/l49 1PC Rigorous imprisonment for seven years with a fine of Rs. 3.000/-, in default of payment of fine to further undergo six months rigorous imprisonment.
u/S. 302/149 IPC Life imprisonment with a fine of Rs. 5,000/ -. in default of payment of fine to further undergo one year's rigorous imprisonment.
u/S. 452/IPC Rigorous imprisonment for three years with a fine of Rs. 1.000/-, in default of payment of fine to further undergo two months rigorous imprisonment.
All the sentences were ordered to run concurrently.
2. The accused applicant was serving as Constable, RAC, 5th Batalion, Jaipur since 9-1-1997 and till the date of his suspension, the service record of the accused-applicant was excellent and throughout his service tenure he was never charge-sheeted at any point of time.
3. The accused applicant has also preferred a writ petition before this Court which was registered as S. B. Civil Writ Petition No. 4973/2002 challenging the departmental enquiry, but during pendency of the writ petition, the Commandant of 5th Battalion, RAC, Jaipur has issued an office order dated 21-6-2008 suspending the accused applicant from service w. e. f. 30-4-2008. Later on the aforesaid writ petition was dismissed as withdrawn by this Court vide order dated 12-8-2008 after passing of the judgment dated 30-4-2008 by the Court below.
4. As regards criminal case, on 25-82001 FIR No. 166/2001 came to be registered at Police Station, Uchchain, District Bharatpur for the offence under Secs. 147, 148, 149,323,341,452,307 and 302 IPC against the accused and after completion of the trial the Additional District & Sessions Judge (Fast Track) No.2, Bharatpur vide its judgment dated 30-4-2008 convicted and sentenced the accused applicant in the terms as indicated herein above.
5. The main contention of the learned counsel appearing for the accused applicant is that the family circumstances of the applicant are very downtrodden and he is the sole earning member of his family and there are mother, father, wife and two children in the family of the accused-applicant and the applicant is having all responsibilities of his family members. The accused applicant has to fulfill his social obligations and for the same it is necessary that he should not be deprived of his employment and in case the conviction order passed against the accused-applicant is not stayed, he is not likely to get job anywhere and in such circumstances, the same would cause prejudice and adverse affect to his entire family.
6. It is also contended that against the order of conviction and sentence dated 304-2008, the accused applicant has preferred an appeal before this Court and vide order dated 11-8-2008, the sentence awarded to the ac
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