Jalal Ahmed Mazumdar Vs. State of Assam - Court Judgment

Excerpt:
- - the present petitioner) standing near shiva hotel, who shouted 'catch hold of him',whereupon accused tutu mia laskar came out from behind a maruti van parked nearby, accused jalal ahmed mazumdar caught hold of the informant's collar and accused tutu mia laskar gave a blow on the informant's abdomen by a knife-like weapon. sub-section (1) of section 389 clearly speaks not only about suspension of execution of the sentence, but also about suspension of the operation of the order appealed against. in a fit case if the high court feels satisfied that the order of conviction needs to be suspended or stayed so that the convicted person does not suffer from a certain disqualification provided for in any other statute, it may exercise the power because otherwise the damage done cannot be undone; but while granting a stay or suspension of the order of conviction the court must examine the pros and cons and if it feels satisfied that a case is made out for grant of such an order, it may do so and in so doing it may, if it considers it appropriate, impose such conditions as are considered appropriate to protect the interest of the shareholders and the business of the company. when an appeal is preferred under section 374, the appeal is against both the conviction as well as the sentence. 16.5. all these decisions, while recognizing the power to stay conviction, have cautioned and clarified that such power should be exercised only in exceptional circumstances where failure to stay the conviction, would lead to injustice and irreversible consequences. 10. in the face of the law as clearly discernible from the decision in navjot singh sidhu (supra), there can be no escape from the conclusion that besides the high court's power under section 482 cr. patil (supra), and navjot singh sidhu (supra) clearly reflect the position of law that an appellate court, while exercising powers under section 389(1), can suspend the operation of the order of conviction, what needs to be pointed is that a three judges bench, in ravikant s. patil (supra), clearly pointed out that an order granting stay of conviction must not be a rule, but shall be an exception and such exception shall be made only in rare cases depending upon the facts of a case. patil (supra), clearly show that though execution of sentence may be suspended, an order of conviction shall not be suspended except in exceptional cases. sareen (supra), reiterated that only in exceptional cases, the court should exercise the power of stay of conviction. when the apex court has repeatedly cautioned that suspension of conviction has to be in rare cases and for circumstances, which are exceptional, the words of cautioning cannot be reduced to a mere formality by allowing a person to agitate that however serious the charges against him may be or however clinching the evidence adduced in a case may be, since he wishes to contest an election, the order of conviction passed against him must be stayed, for, not suspending the order of conviction would cause irreparable damage to him if he is, on hearing of the appeal, eventually, found to have not been guilty of the offence of which he stood convicted. hence, it is only in rare cases and in exceptional and compelling circumstances that the court may, by recording convincing reasons, suspend an order of conviction. i.a. ansari, j.1. the principal question, raised in this revision, is as to whether a sessions judge can, pending an appeal against an order of conviction and sentence, suspend, besides execution of the sentence, the operation of the order of conviction passed against the appellant. another equally important question, raised in this revision, is as to whether it is enough for a court, while exercising power under section 389(1) cr.p.c. to suspend the operation of the order of conviction, if the appellant shows that the order of conviction would, if not suspended, cause irreparable damage to him or is it necessary, even in such a case, for the court, to ascertain if the order of conviction is prima facie supported by evidence on record? in other words, one of the questions, which needs to be answered, in this revision, is as to whether merit of the appeal is a factor, which needs to be taken into account, while considering the question as to whether, during pendency of an appeal, an order, convicting the appellant, needs to be suspended or not? yet another question of great significance, which this revision raises, is as to whether suspension of sentence during pendency of an appeal shall automatically follow suspension of the order of conviction or whether the appellate court shall, in order to suspend the order of conviction of the appellant under section 389(1) cr.p.c., apply parameters different from the ones, which may be applied for suspending the sentence passed against such an appellant?2. before i deal with the questions, raised in the present revision, it is necessary that the material facts, leading to this revision, are taken note of. these facts may, in a nutshell, be set out as follows:(i) based on an f.i.r., lodged by one allauddin, a case was registered by the police, the case of the informant being, in brief, thus : on 14.04.2000, at about 9.00 p.m., when the informant, allauddin, accompanied by one nuruddin, was returning home from the residence of his advocate, abdul mazid, the informant noticed accused jalal ahmed mazumdar (i.e. the present petitioner) standing near shiva hotel, who shouted 'catch hold of him', whereupon accused tutu mia laskar came out from behind a maruti van parked nearby, accused jalal ahmed mazumdar caught hold of the informant's collar and accused tutu mia laskar gave a blow on the informant's abdomen by a knife-like weapon. accused abdul haque laskar was also present with the assailants. having been so injured, when the informant fell down on the ground, all the three accused went running to the shop of jalal ahmed mazumdar, whereupon nizamuddin and some others came to the place of occurrence and took the injured, on a vehicle, to dholai hospital. an f.i.r. with regard to the occurrence was lodged by the injured and a case came to be accordingly registered against the three accused aforementioned. during investigation, police seized blood-stained wearing apparels from the injured and, upon completion of investigation, submitted charge-sheet against all the three accused under sections 341/324/307/34 ipc.(ii) during trial, all the three accused persons pleaded not guilty to the charges framed against them under sections 341,347 and 307 read with section 34 ipc. in support of their case, prosecution examined as many as 11 witnesses, whereupon statements of the accused persons were recorded under section 313 cr.p.c. in their statements, all the accused denied that they had committed the offences alleged to have been committed by them, the case of the defence being that of total denial.(iii) having found accused abdul haque laskar not guilty of the offences charged with, learned assistant sessions judge, cachar, silchar, acquitted the said accused of the charges framed against him. the learned trial court also acquitted the remaining two accused, namely, tutu mia laskar @ samsul and jalal ahmed mazumdar (i.e. the present petitioner) of the offence under section 307 read with section 34 ipc. the learned trial court, however, convicted both the accused persons, namely, tutu mia laskar @ samsul and jalal ahmed mazumdar (i.e. the present petitioner) under sections 341 and 324 read with section 34 ipc, both the accused were, for their conviction under section 324 read with section 34 ipc, sentenced to simple imprisonment for a period of two years and also to pay, for their conviction under section 341 read with section 34 ipc, fine of rs. 500/- each and, in default of payment of fine, to undergo simple imprisonment for a further period of one month. aggrieved by his conviction and the sentences passed against him, only the present petitioner preferred an appeal, which gave rise to criminal appeal no. 46/2006. on 05.10.2006, while admitting the appeal, the learned appellate court suspended the sentences passed against the accused-appellant and allowed him to remain on his previous bail.(iv) at a latter stage, however, the present petitioner filed, in the appeal, a petition praying for staying the order of conviction too till disposal of the appeal. having heard this petition, learned sessions judge dismissed the same by order, dated 03.12.2007, holding to the effect, inter alia, that a sessions judge does not have the power to suspend the conviction. it is the order, dated 03.12.2007, which stands impugned in the present revision.3. i have heard mr. a.k. bhattacharjee, learned senior counsel, appearing on behalf of the petitioner, and mr. b.b. gogoi, learned addl. public prosecutor, assam.4. referring to, and relying upon, the supreme court's decision in navjot singh sidhu v. state of punjab and ors. reported in : 2007crilj1427 , mr. bhattacharjee contends that the learned sessions judge has incorrectly held that other than the high court, which enjoys inherent power under section 482 cr.p.c., no court, exercising appellate jurisdiction under the scheme of the code of criminal procedure, has the power to suspend or stay an order of conviction passed against a person, whose appeal is pending for hearing. in the present case, points out mr. bhattacharjee, the petitioner is a social worker, he is the president of youth wing of the congress and general secretary of bhagabazar mandal congress committee and, being an office-bearer of the party, the petitioner intends to contest election for the office of the member, cachar zilla parishad, from south dholai zilla constituency and when the petitioner so decided to contest election, he applied for suspension of the order of conviction passed against him so as to enable him to contest the election without incurring any disqualification; but the learned sessions judge, having misconstrued the decisions in navjot singh sidhu (supra), ravikant s. patil v. sarvabhouma s. bagali, reported in (2007) 1 scc 673, and rama narang v. ramesh narang reported in : [1995]1scr456 , held that section 389 (1) cr.p.c. does not empower an appellate court, other than the high court under section 482 cr.p.c., to suspend an order of conviction. 5. apart from the fact that the learned addl, public prosecutor has not seriously disputed the correctness of the submission, made on behalf of the petitioner, that an appellate court, while exercising jurisdiction under section 389(1) cr.p.c., can suspend an order of conviction, what needs to be pointed out is that a bare reading of sub-section (1) of section 389 shows that pending any appeal by a convicted person, the appellate court may, for reasons to be recorded in writing, order that execution of the sentence or order appealed against be suspended and also, if he is in confinement, the appellant be released on bail or on his own bond. sub-section (1) of section 389 clearly speaks not only about suspension of execution of the sentence, but also about suspension of the operation of the order appealed against. the order appealed against means the order of conviction. thus, not only that an appellate court, while exercising the power under section 389 (1) cr.p.c., can suspend execution of sentence, but also the order of conviction.6. in rama narang (supra), a three judges bench of the supreme court, having considered the question as to whether an order of conviction can be suspended or not in exercise of powers under section 389(1), held, speaking through ahmadi, cj., as follows:19. that takes us to the question whether the scope of section 389(1) of the code extends to conferring power on the appellate court to stay the operation of the order of conviction. as stated earlier, if the order of conviction is to result in some disqualification of the type mentioned in section 267 of the companies act, we see no reason why we should give a narrow meaning to section 389(1) of the code to debar the court from granting an order to, that effect in a fit case. the appeal under section 374 is essentially against the order of conviction because the order of sentence is merely consequential thereto; albeit even the order of sentence can be independently challenged if it is harsh and disproportionate to the established guilt. therefore, when an appeal is preferred under section 374 of the code the appeal is against both the conviction and sentence and therefore, we see no reason to place a narrow interpretation on section 389(1) of the code not to extend it to an order of conviction, although that issue in the instant case recedes to the background because high courts can exercise inherent jurisdiction under section 482 of the code if the power was not to be found in section 389(1) of the code. we are, therefore, of the opinion that the division bench of the high court of bombay was not right in holding that the 1 delhi high court could not have exercised jurisdiction under section 482 of the code if it was confronted with a situation of there being no other provision in the code for staying the operation of the order of conviction. in a fit case if the high court feels satisfied that the order of conviction needs to be suspended or stayed so that the convicted person does not suffer from a certain disqualification provided for in any other statute, it may exercise the power because otherwise the damage done cannot be undone; the disqualification incurred by section 267 of the companies act and given effect to cannot be undone at a subsequent date if the conviction is set aside by the appellate court. but while granting a stay or suspension of the order of conviction the court must examine the pros and cons and if it feels satisfied that a case is made out for grant of such an order, it may do so and in so doing it may, if it considers it appropriate, impose such conditions as are considered appropriate to protect the interest of the shareholders and the business of the company. 7. from what have been held in rama narang (supra), it becomes clear that the supreme court was of the view, in rama narang (supra), that there is no reason to give a narrow meaning to the expression, 'order appealed against', appearing in section 389(1) cr.p.c. and debar the appellate court from suspending conviction if the facts of a given case so warrant. the court pointed out, in rama narang (supra), that an appeal, under section 374 cr.pc, is essentially against an order of conviction, for, the order of suspension is merely consequential to an order of conviction, though the order of sentence can be independently challenged if the sentence is harsh and disproportionate to the offence of which an accused has been convicted. when an appeal is preferred under section 374, the appeal is against both the conviction as well as the sentence. since, however, rama narang (supra) arose out of an order passed by the high court, which enjoys inherent power under section 482 cr.p.c. the court held, in rama narang (supra), that if such a power of suspension of an order of conviction is not found in section 389(1) cr.p.c. such a power can, indeed, be exercised by the high court taking resort to section 482 cr.p.c. in fact, not only in the decision in rama narang (supra), but also having considered the decisions in state of t.n. v. a.jaganathan reported in : 1996crilj3495 , k.c. sareen v. cbi reported in : 2001crilj4234 , b.r. kapur v. state of t.n. reported in : air2001sc3435 and state of maharashtra v. gajanan reported in : 2004crilj919 , a three judges bench, in ravikant s. patil (supra), concluded, at para 16.5 thus:16.5. all these decisions, while recognizing the power to stay conviction, have cautioned and clarified that such power should be exercised only in exceptional circumstances where failure to stay the conviction, would lead to injustice and irreversible consequences.8. having analysed the decisions in rama narang (supra) and ravikant s. patil (supra) and all other authorities mentioned hereinbefore, a two judges bench, in nayjot singh sidhu (supra), held that the expression 'order appealed against', appearing in sub-section (1) of section 389, encompasses an order of conviction and, hence, section 389(1) empowers an appellate court to suspend not only execution of sentence, but also, in a given case, the operation of the order of conviction. the fact that even an order of conviction can be suspended by invoking the provisions of section 389(1) becomes crystal clear from the observations of the court, in navjot singh sidhu (supra), which read:this sub-section confers power not only to suspend the execution of sentence and to grant bail but also to suspend the operation of the order appealed against which means the order of conviction. 9. reiterating that an appellate court can suspend or grant stay of an order of conviction, the court, in navjot singh sidhu (supra), once again, observed and held, at para 6, thus:the legal position is, therefore, clear that an appellate court can suspend or grant stay of order of conviction.10. in the face of the law as clearly discernible from the decision in navjot singh sidhu (supra), there can be no escape from the conclusion that besides the high court's power under section 482 cr.p.c. every appellate court, exercising jurisdiction under section 389(1) cr.p.c. has the power to suspend not only execution of the sentence, but also the operation of the order of conviction.11. in the light of what have been discussed above, it becomes transparent that the learned sessions judge, having misconstrued the decisions in navjot singh sidhu (supra), ravikant s. patil v. sarvabhouma s. bagali reported in (2007) 1 scc 673, and rama narang v. ramesh narang reported in : [1995]1scr456 , held to the effect that section 389(1) cr.p.c. does not empower an appellate court, other than the high court under section 482 cr.p.c. to suspend an order of conviction.12. in view of the conclusions reached above, this revision could have been allowed by setting aside the impugned order, dated 03.12.2007, and the matter could have been remanded to the learned sessions judge for answering the question as to whether, in the facts and circumstances of the present case, the order of conviction, passed against the present petitioner, needs to be suspended. in view, however, of the fact that it has been submitted, on behalf of the petitioner, that as the panchayat elections are knocking at the door, this court may, in exercise of its powers, determine if, in the facts and circumstances of the present case, the present petitioner's prayer for suspending the operation of the order of conviction ought to have been allowed or can, now, be allowed or not.13. in view of the above submissions made on behalf of the petitioner and in the interest of justice, i have also heard this petition, on merit, in order to determine if, in the facts and circumstances of the present case, the petitioner's prayer for stay of the order of conviction appealed against needs to be suspended until the decision in the appeal.14. mr. bhattacharjee passionately pleads that the petitioner is a social worker and being an important functionary of the congress at the grass-root level, when the petitioner sought to participate in the ensuing panchayat elections, the learned sessions judge ought to have allowed the petitioner's prayer, for, refusing to allow the prayer may, according to mr. bhattacharjee, cause irreparable loss if, on hearing of the appeal, the appeal is, eventually, allowed. when the consequences following the refusal to stay the operation of an order of conviction is so serious, the law, as laid down in nayjot singh sidhu (supra), warrants, according to mr. bhattacharjee, that the appellate court, in the present case, ought to have stayed the order of conviction.15. on being asked by this court if the appellate court, while considering a prayer for suspension of the order of conviction, must determine prima facie the merit of the appeal, mr. bhattacharjee, in keeping with the high standards of the bar and in his usual fairness, submits that the merit of the appeal is, indeed, one of the factors, which governs the power of granting of suspension of conviction. in the present case, however, points out mr. bhatacharjee, since the sentence passed against the petitioner has already been suspended, there is no reason as to why the order of conviction should not have been stayed, when the consequences of not staying the operation of the order of conviction may cause irreparable damage to the petitioner.16. while considering the above aspects of the submissions made on behalf of the petitioner, what needs to be pointed out is that though rama narang (supra), ravikant s. patil (supra), and navjot singh sidhu (supra) clearly reflect the position of law that an appellate court, while exercising powers under section 389(1), can suspend the operation of the order of conviction, what needs to be pointed is that a three judges bench, in ravikant s. patil (supra), clearly pointed out that an order granting stay of conviction must not be a rule, but shall be an exception and such exception shall be made only in rare cases depending upon the facts of a case. when execution of a sentence is stayed, the conviction, points out the apex court, in ravikant s. patil (supra), continues to operate; but when the conviction itself is stayed, the effect is that the conviction will not be operative from the date of stay, though it does not mean that the conviction has become non-existent. the relevant observations, made in this regard, in ravikant s. patil (supra), read thus:it deserves to be clarified that an order order granting stay of conviction is not the rule but is an exception to be resorted to in rare cases depending upon the facts of a case. where the execution of the sentence is stayed, the conviction continues to operate. but where the conviction itself is stayed, the effect is that the conviction will not be operative from the date of stay. an order of stay, of course, does not render the conviction non-existent, but only non-operative.17. the above observations, made in ravikant s. patil (supra), clearly show that though execution of sentence may be suspended, an order of conviction shall not be suspended except in exceptional cases. logically, therefore, when a convicted person applies to an appellate court for suspension of his conviction on the ground that he has been in politics and he wants to contest an election, the court cannot keep its eyes closed as regards the merit of the appeal and suspend the order of conviction merely to enable the appellant to participate in the election. let us assume, for a moment, that a person, convicted of outgoing the modesty of a woman, applies to the court for stay of the order of conviction, should the court, merely because of the fact that the appellant, wishes to contest an election, suspend the order of conviction too? in a. jaganathan (supra) and k.c. sareen (supra), which were cases arising of orders of conviction on charges of corruption, the court had held that it would be sublime public policy that the convicted person is kept under disability of the conviction instead of keeping the sentence of imprisonment in abeyance and it would be highly improper to suspend the order of conviction of a public servant, which would enable him to occupy the same office, which he misused. it is, no doubt, true that the cases of a. jaganathan (supra), and k.c. sareen (supra) were the cases, which arose out of charges of corruption; but the fact remains that these two cases, namely, a. jaganathan (supra) and k.c. sareen (supra), make it abundantly clear that it is not in every case that an order of conviction can be suspended. in fact, in a. jaganathan (supra), the court, relying upon k.c. sareen (supra), reiterated that only in exceptional cases, the court should exercise the power of stay of conviction. to the same effect is the law laid down in navjot singh sidhu (supra) inasmuch as the apex court, in navjot singh sidhu (supra), too held:grant of stay of conviction can be resorted to in rare cases depending upon the special facts of the case.18. it may be pointed out that when the order of conviction is suspended, the accused cannot remain behind the bar and has to be released either on bail or on his own bond. consequently, when an order of conviction is suspended, the order of sentence has to be suspended. in other words, an order suspending conviction will, eventually, lead to an order of suspension of sentence, but the converse is not true inasmuch as the fall-out would be extremely serious. for instance, even a person, who has been convicted of the offence of murder, may simply apply to the court that he wishes to contest an election and if he is not allowed, he would suffer irreparable loss, for, he may be found not guilty upon hearing of the appeal. in such a case, merely because of the fact that a convicted person intends to contest an election, can the court suspend the order of conviction. such a course would, if adopted, not only bring convicted persons into the field of politics, but make it more convenient for a convicted person to contest an election so that the order of conviction passed against him gets, automatically, suspended. such a situation would not be conducive for a society, which promises to be governed by rule of law.19. because of what have been pointed out, it is clear that legal position is that an order of suspension of sentence is not equivalent to an order of suspension of conviction and that these two reliefs operate in different fields. in such circumstances, merely because of the fact that the sentence passed against the present petitioner was suspended, he must not be held entitled to seek suspension of the order of conviction too on the ground that he wishes to contest the ensuing panchayat elections.20. in the present case, the entire petition of the present petitioner, filed in the appeal, was silent as regards the merit of the appeal and his whole case for seeking suspension of the operation of the order of conviction was that he, being a social and political worker, had decided to contest the ensuing panchayat elections and, hence, in order to enable him to submit his nomination papers and to prevent him from incurring disqualification, in this regard, the order of conviction needs to be stayed. in fact, even in the present revision, the petitioner's sole grievance is to the effect that since he has decided to contest the panchayat elections, the operation of the order of conviction ought to have been suspended. when the petitioner himself is not inclined to submit anything to show that in the facts and circumstances of the present case, his case is a fit case to suspend the order of conviction, it is not legally permissible to suspend the conviction. in fact, even in navjot singh sidhu's case (supra), the supreme court, having pointed out that for the purpose of taking a decision on the question of staying or suspending the order of conviction, it was not necessary to minutely examine the merits of the case, nevertheless deemed it fit to discuss the evidence in order to show that the order of conviction passed, in navjot singh sidhu (supra), may not be correct. thus, a prima facie satisfaction is required to be reached by the court as regards the merit of the appeal. in the present case, this court does not know the grounds on which the appeal has been preferred by the present petitioner. in such circumstances, i am firmly of the view that merely because of the suspension of the order of sentence, the order convicting the petitioner could not have been suspended and does not, now, deserve to be suspended. when the apex court has repeatedly cautioned that suspension of conviction has to be in rare cases and for circumstances, which are exceptional, the words of cautioning cannot be reduced to a mere formality by allowing a person to agitate that however serious the charges against him may be or however clinching the evidence adduced in a case may be, since he wishes to contest an election, the order of conviction passed against him must be stayed, for, not suspending the order of conviction would cause irreparable damage to him if he is, on hearing of the appeal, eventually, found to have not been guilty of the offence of which he stood convicted. such an approach would not only reduce the momentous powers, given to the appellate court under section 389 cr.p.c. to a mere formality, but also enable every accused, on suspension of his sentence, to apply to the court for suspension of the order of conviction too on the ground that the order of conviction be stayed so as to enable him to contest an election.21. it needs to be pointed out that while it is, in specified cases, under section 389(3), mandatory for the court, which convicts a person, to allow him to go on bail if he intends to present an appeal against his order of conviction, the exercise of power under section 389(1) cr.p.c. is not routine, but discretionary, for, it is necessary for the appellate court to record reasons if it has to allow suspension of sentence and/or conviction. it is not, therefore, in every case that an order of conviction appealed against can be suspended. far from this, even for suspension of sentence, section 389(1) makes it mandatory for the court to record reasons. more compelling must be the circumstances for permitting the court to suspend an order of conviction.22. what crystallizes from the above discussion is that an order of conviction and/or sentence can be suspended by every appellate court, including the high court, under section 389(1) cr.p.c. provided that the facts of a given case so warrant. however, suspension of the sentence is not equivalent to suspension of conviction. while suspension of sentence permits liberty of physical movement to an appellant subject to such conditions as the appellate court may impose, suspension of order of conviction removes the constraints arising out of the order of conviction. hence, it is only in rare cases and in exceptional and compelling circumstances that the court may, by recording convincing reasons, suspend an order of conviction.23. in the present case, no sustainable ground has been made out by the petitioner to enable him to seek suspension of the order of conviction, which he has appealed against. this apart, it may also be pointed out that i have closely examined the impugned judgment and order of conviction, but i do not find that the present case is one, wherein the accused-petitioner stands convicted without any evidence or wholly against the weight of the evidence on record)24. in the result and for the reasons discussed above, this revision is not admitted and the same shall accordingly stand dismissed.

Judgment:

I.A. Ansari, J.

1. The principal question, raised in this revision, is as to whether a Sessions Judge can, pending an appeal against an order of conviction and sentence, suspend, besides execution of the sentence, the operation of the order of conviction passed against the appellant. Another equally important question, raised in this revision, is as to whether it is enough for a Court, while exercising power under Section 389(1) Cr.P.C. to suspend the operation of the order of conviction, if the appellant shows that the order of conviction would, if not suspended, cause irreparable damage to him or is it necessary, even in such a case, for the court, to ascertain if the order of conviction is prima facie supported by evidence on record? In other words, one of the questions, which needs to be answered, in this revision, is as to whether merit of the appeal is a factor, which needs to be taken into account, while considering the question as to whether, during pendency of an appeal, an order, convicting the appellant, needs to be suspended or not? Yet another question of great significance, which this revision raises, is as to whether suspension of sentence during pendency of an appeal shall automatically follow suspension of the order of conviction or whether the appellate court shall, in order to suspend the order of conviction of the appellant under Section 389(1) Cr.P.C., apply parameters different from the ones, which may be applied for suspending the sentence passed against such an appellant?

2. Before I deal with the questions, raised in the present revision, it is necessary that the material facts, leading to this revision, are taken note of. These facts may, in a nutshell, be set out as follows:

(i) Based on an F.I.R., lodged by one Allauddin, a case was registered by the police, the case of the informant being, in brief, thus : On 14.04.2000, at about 9.00 p.m., when the informant, Allauddin, accompanied by one Nuruddin, was returning home from the residence of his Advocate, Abdul Mazid, the informant noticed accused Jalal Ahmed Mazumdar (i.e. the present petitioner) standing near Shiva Hotel, who shouted 'catch hold of him', whereupon accused Tutu Mia Laskar came out from behind a Maruti Van parked nearby, accused Jalal Ahmed Mazumdar caught hold of the informant's collar and accused Tutu Mia Laskar gave a blow on the informant's abdomen by a knife-like weapon. Accused Abdul Haque Laskar was also present with the assailants. Having been so injured, when the informant fell down on the ground, all the three accused went running to the shop of Jalal Ahmed Mazumdar, whereupon Nizamuddin and some others came to the place of occurrence and took the injured, on a vehicle, to Dholai hospital. An F.I.R. with regard to the occurrence was lodged by the injured and a case came to be accordingly registered against the three accused aforementioned. During investigation, police seized blood-stained wearing apparels from the injured and, upon completion of investigation, submitted charge-sheet against all the three accused under Sections 341/324/307/34 IPC.

(ii) During trial, all the three accused persons pleaded not guilty to the charges framed against them under Sections 341,347 and 307 read with Section 34 IPC. In support of their case, prosecution examined as many as 11 witnesses, whereupon statements of the accused persons were recorded under Section 313 Cr.P.C. In their statements, all the accused denied that they had committed the offences alleged to have been committed by them, the case of the defence being that of total denial.

(iii) Having found accused Abdul Haque Laskar not guilty of the offences charged with, learned Assistant Sessions Judge, Cachar, Silchar, acquitted the said accused of the charges framed against him. The learned trial Court also acquitted the remaining two accused, namely, Tutu Mia Laskar @ Samsul and Jalal Ahmed Mazumdar (i.e. the present petitioner) of the offence under Section 307 read with Section 34 IPC. The learned trial Court, however, convicted both the accused persons, namely, Tutu Mia Laskar @ Samsul and Jalal Ahmed Mazumdar (i.e. the present petitioner) under Sections 341 and 324 read with Section 34 IPC, Both the accused were, for their conviction under Section 324 read with Section 34 IPC, sentenced to simple imprisonment for a period of two years and also to pay, for their conviction under Section 341 read with Section 34 IPC, fine of Rs. 500/- each and, in default of payment of fine, to undergo simple imprisonment for a further period of one month. Aggrieved by his conviction and the sentences passed against him, only the present petitioner preferred an appeal, which gave rise to Criminal Appeal No. 46/2006. On 05.10.2006, while admitting the appeal, the learned appellate Court suspended the sentences passed against the accused-appellant and allowed him to remain on his previous bail.

(iv) At a latter stage, however, the present petitioner filed, in the appeal, a petition praying for staying the order of conviction too till disposal of the appeal. Having heard this petition, learned Sessions Judge dismissed the same by order, dated 03.12.2007, holding to the effect, inter alia, that a Sessions Judge does not have the power to suspend the conviction. It is the order, dated 03.12.2007, which stands impugned in the present revision.

3. I have heard Mr. A.K. Bhattacharjee, learned Senior counsel, appearing on behalf of the petitioner, and Mr. B.B. Gogoi, learned Addl. Public Prosecutor, Assam.

4. Referring to, and relying upon, the Supreme Court's decision in Navjot Singh Sidhu v. State of Punjab and Ors. reported in : 2007CriLJ1427 , Mr. Bhattacharjee contends that the learned Sessions Judge has incorrectly held that other than the High Court, which enjoys inherent power under Section 482 Cr.P.C., no Court, exercising appellate jurisdiction under the scheme of the Code of Criminal Procedure, has the power to suspend or stay an order of conviction passed against a person, whose appeal is pending for hearing. In the present case, points out Mr. Bhattacharjee, the petitioner is a social worker, he is the President of Youth Wing of the Congress and General Secretary of Bhagabazar Mandal Congress Committee and, being an office-bearer of the party, the petitioner intends to contest election for the office of the Member, Cachar Zilla Parishad, from South Dholai Zilla constituency and when the petitioner so decided to contest election, he applied for suspension of the order of conviction passed against him so as to enable him to contest the election without incurring any disqualification; but the learned Sessions Judge, having misconstrued the decisions in Navjot Singh Sidhu (supra), Ravikant S. Patil v. Sarvabhouma S. Bagali, reported in (2007) 1 SCC 673, and Rama Narang v. Ramesh Narang reported in : [1995]1SCR456 , held that Section 389 (1) Cr.P.C. does not empower an appellate Court, other than the High Court under Section 482 Cr.P.C., to suspend an order of conviction.

5. Apart from the fact that the learned Addl, Public Prosecutor has not seriously disputed the correctness of the submission, made on behalf of the petitioner, that an appellate Court, while exercising jurisdiction under Section 389(1) Cr.P.C., can suspend an order of conviction, what needs to be pointed out is that a bare reading of Sub-section (1) of Section 389 shows that pending any appeal by a convicted person, the appellate Court may, for reasons to be recorded in writing, order that execution of the sentence or order appealed against be suspended and also, if he is in confinement, the appellant be released on bail or on his own bond. Sub-section (1) of Section 389 clearly speaks not only about suspension of execution of the sentence, but also about suspension of the operation of the order appealed against. The order appealed against means the order of conviction. Thus, not only that an appellate Court, while exercising the power under Section 389 (1) Cr.P.C., can suspend execution of sentence, but also the order of conviction.

6. In Rama Narang (supra), a three Judges Bench of the Supreme Court, having considered the question as to whether an order of conviction can be suspended or not in exercise of powers under Section 389(1), held, speaking through Ahmadi, CJ., as follows:

19. That takes us to the question whether the scope of Section 389(1) of the Code extends to conferring power on the appellate court to stay the operation of the order of conviction. As stated earlier, if the order of conviction is to result in some disqualification of the type mentioned in Section 267 of the Companies Act, we see no reason why we should give a narrow meaning to Section 389(1) of the Code to debar the court from granting an order to, that effect in a fit case. The appeal under Section 374 is essentially against the order of conviction because the order of sentence is merely consequential thereto; albeit even the order of sentence can be independently challenged if it is harsh and disproportionate to the established guilt. Therefore, when an appeal is preferred under Section 374 of the Code the appeal is against both the conviction and sentence and therefore, we see no reason to place a narrow interpretation on Section 389(1) of the Code not to extend it to an order of conviction, although that issue in the instant case recedes to the background because High Courts can exercise inherent jurisdiction under Section 482 of the Code if the power was not to be found in Section 389(1) of the Code. We are, therefore, of the opinion that the Division Bench of the High Court of Bombay was not right in holding that the 1 Delhi High Court could not have exercised jurisdiction under Section 482 of the Code if it was confronted with a situation of there being no other provision in the Code for staying the operation of the order of conviction. In a fit case if the High Court feels satisfied that the order of conviction needs to be suspended or stayed so that the convicted person does not suffer from a certain disqualification provided for in any other statute, it may exercise the power because otherwise the damage done cannot be undone; the disqualification incurred by Section 267 of the Companies Act and given effect to cannot be undone at a subsequent date if the conviction is set aside by the appellate court. But while granting a stay or suspension of the order of conviction the Court must examine the pros and cons and if it feels satisfied that a case is made out for grant of such an order, it may do so and in so doing it may, if it considers it appropriate, impose such conditions as are considered appropriate to protect the interest of the shareholders and the business of the company.

7. From what have been held in Rama Narang (supra), it becomes clear that the Supreme Court was of the view, in Rama Narang (supra), that there is no reason to give a narrow meaning to the expression, 'order appealed against', appearing in Section 389(1) Cr.P.C. and debar the appellate Court from suspending conviction if the facts of a given case so warrant. The Court pointed out, in Rama Narang (supra), that an appeal, under Section 374 Cr.PC, is essentially against an order of conviction, for, the order of suspension is merely consequential to an order of conviction, though the order of sentence can be independently challenged if the sentence is harsh and disproportionate to the offence of which an accused has been convicted. When an appeal is preferred under Section 374, the appeal is against both the conviction as well as the sentence. Since, however, Rama Narang (supra) arose out of an order passed by the High Court, which enjoys inherent power under Section 482 Cr.P.C. the Court held, in Rama Narang (supra), that if such a power of suspension of an order of conviction is not found in Section 389(1) Cr.P.C. such a power can, indeed, be exercised by the High Court taking resort to Section 482 Cr.P.C. In fact, not only in the decision in Rama Narang (supra), but also having considered the decisions in State of T.N. v. A.Jaganathan reported in : 1996CriLJ3495 , K.C. Sareen v. CBI reported in : 2001CriLJ4234 , B.R. Kapur v. State of T.N. reported in : AIR2001SC3435 and State of Maharashtra v. Gajanan reported in : 2004CriLJ919 , a three Judges Bench, in Ravikant S. Patil (supra), concluded, at para 16.5 thus:

16.5. All these decisions, while recognizing the power to stay conviction, have cautioned and clarified that such power should be exercised only in exceptional circumstances where failure to stay the conviction, would lead to injustice and irreversible consequences.

8. Having analysed the decisions in Rama Narang (supra) and Ravikant S. Patil (supra) and all other authorities mentioned hereinbefore, a two Judges Bench, in Nayjot Singh Sidhu (supra), held that the expression 'order appealed against', appearing in Sub-section (1) of Section 389, encompasses an order of conviction and, hence, Section 389(1) empowers an appellate Court to suspend not only execution of sentence, but also, in a given case, the operation of the order of conviction. The fact that even an order of conviction can be suspended by invoking the provisions of Section 389(1) becomes crystal clear from the observations of the Court, in Navjot Singh Sidhu (supra), which read:

This Sub-section confers power not only to suspend the execution of sentence and to grant bail but also to suspend the operation of the order appealed against which means the order of conviction.

9. Reiterating that an appellate Court can suspend or grant stay of an order of conviction, the Court, in Navjot Singh Sidhu (supra), once again, observed and held, at para 6, thus:

The legal position is, therefore, clear that an appellate court can suspend or grant stay of order of conviction.

10. In the face of the law as clearly discernible from the decision in Navjot Singh Sidhu (supra), there can be no escape from the conclusion that besides the High Court's power under Section 482 Cr.P.C. every appellate Court, exercising jurisdiction under Section 389(1) Cr.P.C. has the power to suspend not only execution of the sentence, but also the operation of the order of conviction.

11. In the light of what have been discussed above, it becomes transparent that the learned Sessions Judge, having misconstrued the decisions in Navjot Singh Sidhu (supra), Ravikant S. Patil v. Sarvabhouma S. Bagali reported in (2007) 1 SCC 673, and Rama Narang v. Ramesh Narang reported in : [1995]1SCR456 , held to the effect that Section 389(1) Cr.P.C. does not empower an appellate Court, other than the High Court under Section 482 Cr.P.C. to suspend an order of conviction.

12. In view of the conclusions reached above, this revision could have been allowed by setting aside the impugned order, dated 03.12.2007, and the matter could have been remanded to the learned Sessions Judge for answering the question as to whether, in the facts and circumstances of the present case, the order of conviction, passed against the present petitioner, needs to be suspended. In view, however, of the fact that it has been submitted, on behalf of the petitioner, that as the Panchayat elections are knocking at the door, this Court may, in exercise of its powers, determine if, in the facts and circumstances of the present case, the present petitioner's prayer for suspending the operation of the order of conviction ought to have been allowed or can, now, be allowed or not.

13. In view of the above submissions made on behalf of the petitioner and in the interest of justice, I have also heard this petition, on merit, in order to determine if, in the facts and circumstances of the present case, the petitioner's prayer for stay of the order of conviction appealed against needs to be suspended until the decision in the appeal.

14. Mr. Bhattacharjee passionately pleads that the petitioner is a social worker and being an important functionary of the Congress at the grass-root level, when the petitioner sought to participate in the ensuing Panchayat elections, the learned Sessions Judge ought to have allowed the petitioner's prayer, for, refusing to allow the prayer may, according to Mr. Bhattacharjee, cause irreparable loss if, on hearing of the appeal, the appeal is, eventually, allowed. When the consequences following the refusal to stay the operation of an order of conviction is so serious, the law, as laid down in Nayjot Singh Sidhu (supra), warrants, according to Mr. Bhattacharjee, that the appellate Court, in the present case, ought to have stayed the order of conviction.

15. On being asked by this Court if the appellate Court, while considering a prayer for suspension of the order of conviction, must determine prima facie the merit of the appeal, Mr. Bhattacharjee, in keeping with the high standards of the Bar and in his usual fairness, submits that the merit of the appeal is, indeed, one of the factors, which governs the power of granting of suspension of conviction. In the present case, however, points out Mr. Bhatacharjee, since the sentence passed against the petitioner has already been suspended, there is no reason as to why the order of conviction should not have been stayed, when the consequences of not staying the operation of the order of conviction may cause irreparable damage to the petitioner.

16. While considering the above aspects of the submissions made on behalf of the petitioner, what needs to be pointed out is that though Rama Narang (supra), Ravikant S. Patil (supra), and Navjot Singh Sidhu (supra) clearly reflect the position of law that an appellate Court, while exercising powers under Section 389(1), can suspend the operation of the order of conviction, what needs to be pointed is that a three Judges Bench, in Ravikant S. Patil (supra), clearly pointed out that an order granting stay of conviction must not be a rule, but shall be an exception and such exception shall be made only in rare cases depending upon the facts of a case. When execution of a sentence is stayed, the conviction, points out the Apex Court, in Ravikant S. Patil (supra), continues to operate; but when the conviction itself is stayed, the effect is that the conviction will not be operative from the date of stay, though it does not mean that the conviction has become non-existent. The relevant observations, made in this regard, in Ravikant S. Patil (supra), read thus:

It deserves to be clarified that an order order granting stay of conviction is not the rule but is an exception to be resorted to in rare cases depending upon the facts of a case. Where the execution of the sentence is stayed, the conviction continues to operate. But where the conviction itself is stayed, the effect is that the conviction will not be operative from the date of stay. An order of stay, of course, does not render the conviction non-existent, but only non-operative.

17. The above observations, made in Ravikant S. Patil (supra), clearly show that though execution of sentence may be suspended, an order of conviction shall not be suspended except in exceptional cases. Logically, therefore, when a convicted person applies to an appellate Court for suspension of his conviction on the ground that he has been in politics and he wants to contest an election, the Court cannot keep its eyes closed as regards the merit of the appeal and suspend the order of conviction merely to enable the appellant to participate in the election. Let us assume, for a moment, that a person, convicted of outgoing the modesty of a woman, applies to the Court for stay of the order of conviction, should the Court, merely because of the fact that the appellant, wishes to contest an election, suspend the order of conviction too? In A. Jaganathan (supra) and K.C. Sareen (supra), which were cases arising of orders of conviction on charges of corruption, the Court had held that it would be sublime public policy that the convicted person is kept under disability of the conviction instead of keeping the sentence of imprisonment in abeyance and it would be highly improper to suspend the order of conviction of a public servant, which would enable him to occupy the same office, which he misused. It is, no doubt, true that the cases of A. Jaganathan (supra), and K.C. Sareen (supra) were the cases, which arose out of charges of corruption; but the fact remains that these two cases, namely, A. Jaganathan (supra) and K.C. Sareen (supra), make it abundantly clear that it is not in every case that an order of conviction can be suspended. In fact, in A. Jaganathan (supra), the Court, relying upon K.C. Sareen (supra), reiterated that only in exceptional cases, the Court should exercise the power of stay of conviction. To the same effect is the law laid down in Navjot Singh Sidhu (supra) inasmuch as the Apex Court, in Navjot Singh Sidhu (supra), too held:

Grant of stay of conviction can be resorted to in rare cases depending upon the special facts of the case.

18. It may be pointed out that when the order of conviction is suspended, the accused cannot remain behind the bar and has to be released either on bail or on his own bond. Consequently, when an order of conviction is suspended, the order of sentence has to be suspended. In other words, an order suspending conviction will, eventually, lead to an order of suspension of sentence, but the converse is not true inasmuch as the fall-out would be extremely serious. For instance, even a person, who has been convicted of the offence of murder, may simply apply to the Court that he wishes to contest an election and if he is not allowed, he would suffer irreparable loss, for, he may be found not guilty upon hearing of the appeal. In such a case, merely because of the fact that a convicted person intends to contest an election, can the Court suspend the order of conviction. Such a course would, if adopted, not only bring convicted persons into the field of politics, but make it more convenient for a convicted person to contest an election so that the order of conviction passed against him gets, automatically, suspended. Such a situation would not be conducive for a society, which promises to be governed by rule of law.

19. Because of what have been pointed out, it is clear that legal position is that an order of suspension of sentence is not equivalent to an order of suspension of conviction and that these two reliefs operate in different fields. In such circumstances, merely because of the fact that the sentence passed against the present petitioner was suspended, he must not be held entitled to seek suspension of the order of conviction too on the ground that he wishes to contest the ensuing Panchayat elections.

20. In the present case, the entire petition of the present petitioner, filed in the appeal, was silent as regards the merit of the appeal and his whole case for seeking suspension of the operation of the order of conviction was that he, being a social and political worker, had decided to contest the ensuing Panchayat elections and, hence, in order to enable him to submit his nomination papers and to prevent him from incurring disqualification, in this regard, the order of conviction needs to be stayed. In fact, even in the present revision, the petitioner's sole grievance is to the effect that since he has decided to contest the Panchayat elections, the operation of the order of conviction ought to have been suspended. When the petitioner himself is not inclined to submit anything to show that in the facts and circumstances of the present case, his case is a fit case to suspend the order of conviction, it is not legally permissible to suspend the conviction. In fact, even in Navjot Singh Sidhu's case (supra), the Supreme Court, having pointed out that for the purpose of taking a decision on the question of staying or suspending the order of conviction, it was not necessary to minutely examine the merits of the case, nevertheless deemed it fit to discuss the evidence in order to show that the order of conviction passed, in Navjot Singh Sidhu (supra), may not be correct. Thus, a prima facie satisfaction is required to be reached by the Court as regards the merit of the appeal. In the present case, this Court does not know the grounds on which the appeal has been preferred by the present petitioner. In such circumstances, I am firmly of the view that merely because of the suspension of the order of sentence, the order convicting the petitioner could not have been suspended and does not, now, deserve to be suspended. When the Apex Court has repeatedly cautioned that suspension of conviction has to be in rare cases and for circumstances, which are exceptional, the words of cautioning cannot be reduced to a mere formality by allowing a person to agitate that however serious the charges against him may be or however clinching the evidence adduced in a case may be, since he wishes to contest an election, the order of conviction passed against him must be stayed, for, not suspending the order of conviction would cause irreparable damage to him if he is, on hearing of the appeal, eventually, found to have not been guilty of the offence of which he stood convicted. Such an approach would not only reduce the momentous powers, given to the appellate Court under Section 389 Cr.P.C. to a mere formality, but also enable every accused, on suspension of his sentence, to apply to the Court for suspension of the order of conviction too on the ground that the order of conviction be stayed so as to enable him to contest an election.

21. It needs to be pointed out that while it is, in specified cases, under Section 389(3), mandatory for the Court, which convicts a person, to allow him to go on bail if he intends to present an appeal against his order of conviction, the exercise of power under Section 389(1) Cr.P.C. is not routine, but discretionary, for, it is necessary for the appellate court to record reasons if it has to allow suspension of sentence and/or conviction. It is not, therefore, in every case that an order of conviction appealed against can be suspended. Far from this, even for suspension of sentence, Section 389(1) makes it mandatory for the Court to record reasons. More compelling must be the circumstances for permitting the Court to suspend an order of conviction.

22. What crystallizes from the above discussion is that an order of conviction and/or sentence can be suspended by every appellate court, including the High Court, under Section 389(1) Cr.P.C. provided that the facts of a given case so warrant. However, suspension of the sentence is not equivalent to suspension of conviction. While suspension of sentence permits liberty of physical movement to an appellant subject to such conditions as the appellate court may impose, suspension of order of conviction removes the constraints arising out of the order of conviction. Hence, it is only in rare cases and in exceptional and compelling circumstances that the court may, by recording convincing reasons, suspend an order of conviction.

23. In the present case, no sustainable ground has been made out by the petitioner to enable him to seek suspension of the order of conviction, which he has appealed against. This apart, it may also be pointed out that I have closely examined the impugned judgment and order of conviction, but I do not find that the present case is one, wherein the accused-petitioner stands convicted without any evidence or wholly against the weight of the evidence on record)

24. In the result and for the reasons discussed above, this revision is not admitted and the same shall accordingly stand dismissed.