The power to suspend conviction under Section 389 Cr.P.C. is to be exercised in rare and exceptional circumstances, particularly in serious crimes, and the criteria for grant of suspension of conviction would be more stringent in heinous crimes.

Rajan Gupta, J

1. The present application has been moved by Shishu Pal Singh @ Shish Pal under Section 389 of the Code of Criminal Procedure, praying for suspension of his conviction pending appeal before this Court. The applicant has been convicted under Sections 302/34 IPC read with Section 120-B IPC, for which he has been sentenced to undergo life imprisonment and to pay a fine of Rs. 5000/-, in default whereof rigorous imprisonment for six months.

2. The allegations against the applicant/appellant are that he along with other three accused murdered one Mehtab Singh. The trial Court recorded a finding that Mehtab Singh was unmarried and owned property. The accused did not deny that they were collaterals of the deceased and some of the property of the deceased had been in possession of the applicant-accused and another accused Karam Singh. Even the weapon of offence i.e. country made pistol was recovered from the house of the applicant herein, Shishu Pal.

3. Applicant-accused Shishu Pal, inter alia, set up a plea of alibi, which was not accepted by the trial Court and he was convicted and sentenced, as aforementioned.

4. The applicant before this Court has relied upon a number of judgments in order to contend that his conviction deserves to be suspended during the pendency of appeal.

5. For this purpose, in his application, he has pointed out various discrepancies and infirmities in the prosecution evidence to derive home the point that he was innocent in the case.

6. However, we are unable to accept the contention of the learned counsel as the power under Section 389 Cr.P.C. to suspend the conviction during pendency of appeal is to be exercised in rare and exceptional circumstances.

7. One of the main judgments, on which the learned counsel has placed reliance, is Navjot Singh Sidhu v. State of Punjab, reported as 2007(1) R.C.R.(Criminal) 836. However, a perusal of the said judgment shows that the accused in the said case had, in fact, been acquitted by the court below. His acquittal was set-aside by the High Court on an appeal preferred by the State. Pursuant to his conviction by the High Court, the accused, who was a member of the Parliament at the relevant time, had resigned from the membership of the Parliament on moral grounds.

8. Keeping in view the entire facts and circumstances of the case, the Apex Court had deemed it fit to suspend the order of conviction and sentence during pendency of appeal.

9. However, the Apex Court had not overruled the law laid down in the cases reported as State of Tamil Nadu v. A. Jaganathan, (1996) 5 SCC 329 and K.C. Sareen v. C.B.I., Chandigarh, 2001(3) RCR ( Crl.) 718. Both the judgments were, however, distinguished by Their Lordships. In fact, the Apex Court was pleased to reiterate the proposition of law laid down in its various decisions that an order granting stay of conviction is not a rule, but is an exception to be resorted to in rare cases depending upon facts of a case. Where the execution of sentence is stayed, the conviction continues to operate. However, when an order of conviction is stayed, the conviction becomes inoperative for the time being. Learned counsel has also referred to certain other judgments such as Smt. Akhtari Bi v. State of M.P., 2001 (2) R.C.R. (Criminal) 302 and Retti Deenabandu and others v. State of Andhra Pradesh, S.C.C. (Cri.) 173. We have perused the said judgments. These judgments do not at all deal with the question of suspension of conviction under Section 389 Cr.P.C.

10. Another judgment cited by the counsel is Padam Singh v. State of U.P., 2001 (1) R.C.R. (Criminal) 138, which, inter alia, lays down that presumption of innocence with which the accused starts, continues right through until he is held guilty by final court of appeal. However, this judgment is also not applicable as it does not deal with an application under Section 389 Cr.P.C. On the other hand, this judgment is concerning the final appeal to be decided in a criminal case