Khemraj Vs. State of Rajasthan - Court Judgment

SooperKanoon Citationsooperkanoon.com/767174
SubjectCriminal
CourtRajasthan High Court
Decided OnApr-21-2009
Judge K.S. Rathore and; Bhanwaroo Khan, JJ.
Reported in2009CriLJ3541; RLW2009(4)Raj3254
AppellantKhemraj
RespondentState of Rajasthan
DispositionApplication dismissed
Cases ReferredVijay Saxena v. State (supra
Excerpt:
- - 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. ramesh narang reported in (l995) 2 scc 513, as well as the judgment in the case of smt. 12. on the other hand, learned public prosecutor appearing for the state as well as the counsel appearing for the complaint strongly opposed the application for staying the conviction order and contended that in view of the recent decision rendered by the hon'ble supreme court in the case of sanjay dutt v. 13. we have heard learned counsel for the accused-applicant, learned public prosecutor for the state as well as learned counsel appearing for the complainant and carefully considered the averments made in the application. cbi, chandigarh (supra) clearly held that though the power to suspend an order of conviction, apart from the order of sentence, is not alien to section 389(1) of the code, its exercise should be limited to very exceptional cases. so far as other reasons given for suspension, of conviction in the present case is concerned, the reasons given in the application are that the accused applicant's service career was good and his family circumstances warrants that conviction should be stayed because there is nobody to support the appellant's family. ramesh narang (supra) as well as the order passed by the division bench of this court in the case of vijay saxena v.k.s. rathore, j.1. the present misc. application under section 389 read with section 482 cr.p.c. has been moved on behalf of accused applicant khemraj for staying the conviction order dated 30-4-2008 passed by the additional district & sessions judge (fast track) no. 2, bharatpur in sessions case no. 19/2005, whereby accused applicant khemraj has been convicted and sentenced as under:under section 147 ipc rigorous imprisonment forthree months with a fineof rs. 500/-, in defaultof payment of fine tofurther undergo one month'srigorous imprisonment.under section 148 ipc rigorous imprisonment forone year with a fine ofrs. 1,000/-, in defaultof payment of fine tofurther undergo two monthsrigorous imprisonment.under section 323/149 ipc rigorous imprisonment forthree months with a fine ofrs. 500/-, in default ofpayment of fine to furtherundergo one month'srigorous imprisonment.under section 324/149 ipc rigorous imprisonment forone year with a fine ofrs. 1,000/-, in defaultof payment of fine tofurther undergo two monthsrigorous imprisonment.under section 326/149 ipc rigorous imprisonment forthree years with a fineof rs. 2,000/-, indefault of payment offine to further undergofour months rigorousimprisonment.under section 307/149 ipc rigorous imprisonment forseven years with a fineof rs. 3,000/-, in defaultof payment of fine tofurther undergo sixmonths rigorousimprisonment.under section 302/149 ipc life imprisonment witha fine of rs. 5,000/-,in default of paymentof fine to furtherundergo one year'srigorous imprisonment.under section 452/ipc rigorous imprisonmentfor three years witha fine of rs. 1,000/-,in default of paymentof fine to furtherundergo two monthsrigorous 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 25-8-2001 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 30-4-2008, the accused applicant has preferred an appeal before this court and vide order dated 11-8-2008. the sentence awarded to the accused applicant has been suspended by the division bench of this court, which shows that the charges levelled against the accused applicant are still to be adjudicated by this court. further a bare perusal of the allegations levelled against the accused applicant would reveal that he is not involved in any offence and if the impugned conviction order is not stayed, the accused applicant will lose his employment.7. it is also contended that there is no likelihood of early disposal of the appeal and in purview of article 21 of the constitution of india, the accused applicant is entitled to earn his livelihood and for that purpose, the impugned conviction order passed by the court below requires to be stayed for enabling the accused applicant to live with dignity and to maintain his family.8. in support of his submission, learned counsel mr. kamlakar sharma appearing on behalf of the accused applicant has placed reliance on the order dated 5-11-2007 passed by the division bench of this court in d.b. criminal misc. application no. 810/ 2007 in d. b. criminal appeal no. 1590/ 2007. vijay saxena v. state, wherein the division bench has considered the provisions of section 389(1) cr.p.c., and also considered the judgment rendered by the orissa high court in the case of benzamin khiro v. state of orissa reported in : 1995 cr. l.j. 1682.9. the division bench has also considered the judgment rendered 'by the three judge bench of the hon'ble supreme court rendered in the case of rama narang v. ramesh narang reported in : (l995) 2 scc 513, as well as the judgment in the case of smt. akhtari bi v. state of m.p. reported in : jt 2001 (4) sc 40 : 2001 cri lj 172710. having considered the ratio decided by the hon'ble supreme court, the division bench of this court in the aforementioned case of vijay saxena v. state (supra), has not only suspended the order of conviction till the disposal of the appeal but also stayed the order dated september 6, 2007 passed by the director general prisons, rajasthan, jaipur under rule 19 of the cca rules and directed that appellant vijay saxena shall be taken back in service forthwith,11. learned counsel mr. kamlakar sharma, in support of his submissions, has also placed reliance on the judgments rendered by the hon'ble supreme court in the case of ravikant s. patil v. sarvabhouma s. bagali reported in (2007) 1 scc 673 : 2006 air scw 6365 as also in the case of navjot singh sidhu v. state of punjab and anr. reported in : (2007) 2 scc 574 : 2007 cri lj 1427 and tried to distinguish the judgment recently rendered by the hon'ble supreme court in cri. m. p. nos. 4087, 5229, 5230, 5237 & 5314 of 2009. in criminal appeal no. 1060 of 2007, reported in : 2009 cri lj 2785; sanjay dutt v. state of maharashtra tr. cbi, bombay.12. on the other hand, learned public prosecutor appearing for the state as well as the counsel appearing for the complaint strongly opposed the application for staying the conviction order and contended that in view of the recent decision rendered by the hon'ble supreme court in the case of sanjay dutt v. state of maharashtra tr. cbi, bombay (supra), the conviction recorded against the accused-applicant vide impugned judgment of conviction and order of sentence dated 30-4-2008 cannot be stayed for the reasons stated by the accused applicant.13. we have heard learned counsel for the accused-applicant, learned public prosecutor for the state as well as learned counsel appearing for the complainant and carefully considered the averments made in the application. we have also minutely gone through the impugned judgment of conviction and order of sentence dated 30-4-2008 passed by the court below and the judgments referred by the respective parties in support of their submissions.14. it is not disputed that the accused applicant has preferred a writ petition before this court, as mentioned herein above, challenging the departmental enquiry and in the aforesaid writ petition, this court vide order dated 10-9-2002 suspended the departmental enquiry till the disposal of the writ petition, but subsequently after passing of the judgment by the court below dated 30-4-2008, the aforesaid writ petition was dismissed as withdrawn by this court vide order dated 12-8-2008.15. it is also not disputed that vide order dated 21 -6-2008, after completion of the trial and after conviction of the accused applicant by the court below vide impugned judgment dated 30-4-2008, whereby the accused applicant has been convicted under section 302/149 ipc and sentenced to life imprisonment and also convicted and sentenced for the various offences, the accused applicant has been put under suspension.16. the plea taken by the learned counsel is that the accused applicant has preferred an appeal against the impugned judgment of conviction and order of sentence dated 30-4-2008 and the division bench of this court has suspended the sentence of the accused applicant vide order dated 11 -8-2008. thus, by way of the present application the accused applicant prays to stay the impugned conviction order passed against him on the ground that he is the sole earning member of his family.17. we have carefully gone through the order dated 5-9-2007 passed by the division bench of this court in the case of vijay saxena v. state (supra).18. section 389(1) of the code of criminal procedure reads as under:389(1). pending any appeal by a convicted person, the appellate court may, for reason to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.19. it will be useful to understand the meaning of words 'conviction' and 'sentence'. 'conviction' can be taken to mean 'the verdict at the time of trial'. to convict' means 'to declare guilty after trial'. whereas primary meaning of word sentence is 'punishment imposed'. a sentence follows a 'conviction'.20. thus, the order of conviction is the part of the judgment and the same is followed by sentence if awarding of sentence is necessary and the accused applicant has already moved application for suspension of sentence and the same was allowed by this court vide order dated 11-8-2008. now the accused applicant has moved the present application for staying the impugned order of conviction.21. hon'ble the supreme court in the case of smt. akhtari bi v. state of m.p. : 2001 cri lj 1727 (supra), has held that the appeal is statutory right, but asking for staying the conviction order is not a right and it is to be examined on the basis of the facts of the case in hand, as held by the hon'ble supreme court in the case of ravikant s. patil v. sarvabhouma s. bagali 2006 air scw 6365 (supra), wherein the hon'ble supreme court has observed as under:15. it deserves to be clarified that an 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 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. be that as it may. insofar as the present case is concerned, an application was filed specifically seeking stay of the order of conviction specifying the consequences if conviction was not stayed, that is, the appellant would incur disqualification to contest the election. the high court after considering the special reason, granted the order staying the conviction. as the conviction itself is stayed in contrast to a stay of execution of the sentence, it is not possible to accept the contention of the respondent that the disqualification arising out of conviction continues to operate even after stay of conviction.22. upon bare reading of the observations made by the hon'ble supreme court, it is crystal clear that an 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.23. thus, the ratio decided by the hon'ble supreme court in the aforementioned case of ravikant s. patil v. sarvabhoma s. bagali (supra), relied upon by the learned counsel for the accused applicant, is not applicable to the facts and circumstances of the present case.24. learned counsel for the accused applicant has further placed reliance on the judgment rendered by the hon'ble supreme court in the case of navjot singh sidhu v. state of punjab and anr. : 2007 cri lj 1427 (supra). in this case also, hon'ble the supreme court while considering the provisions of section 389(1) cr.p.c., has held as under:section 389(1) cr.p.c. 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. thus an appellate court can suspend or grant stay of order of conviction. but the person seeking stay of conviction should specifically draw the attention of the appellate court to the consequences that may arise if the conviction is not stayed. unless the attention of the court is drawn to the specific consequences that would follow on account of the conviction, the person convicted cannot obtain an order of stay of conviction. further, grant of stay of conviction can be resorted to in rare cases depending upon the special facts of the case.25. the facts and circumstances of the case of navjot singh sidhu v. state of punjab and anr. (supra), are altogether different and thus, the ratio decided by the hon'ble supreme court in the aforementioned case is also not applicable to the facts and circumstances of the present case as in this case also, hon'ble the supreme court has observed that grant of stay of conviction can be resorted to in rare cases depending upon the special facts of the case.26. it is also clear from the judgment delivered by the hon'ble supreme court in the case of rama narang v. ramesh narang (supra) and as observed in the case of k.c. sareen v. cbi, chandigarh reported in : (2001) 6 scc 584 : 2001 cri lj 4234 that the judgment of conviction can be stayed by the appellate court or revisional court, as the case may be, but it cannot be done in routine manner or only on the ground of preferring appeal or on the ground that sentence has been suspended by the appellate court, hon'ble the supreme court in the case of k.c. sareen v. cbi, chandigarh (supra) clearly held that though the power to suspend an order of conviction, apart from the order of sentence, is not alien to section 389(1) of the code, its exercise should be limited to very exceptional cases. hon'ble the supreme court has held that merely because the convicted person had filed an appeal to challenge his conviction the court should not suspend the operation of the order of conviction.27. the discretion has been given to the court to suspend the conviction so that in a fit case and where special reasons exist the court can suspend the conviction. so far as other reasons given for suspension, of conviction in the present case is concerned, the reasons given in the application are that the accused applicant's service career was good and his family circumstances warrants that conviction should be stayed because there is nobody to support the appellant's family. however, in the application there are no material facts with respect to the accused applicant's family so as to find out how the case of the applicant is different from any convict as every convict normally may have family and may have to support his family.28-29. in the case in hand, the learned counsel for the accused appellant is not able to show any special facts in the case and the present case is not such a rare case where conviction order requires to be stayed.30. in a recent judgment rendered by the hon'ble supreme court in the case of sanjay dutt v. state of maharashtra tr. cbi, bombay : 2009 cri lj 2785 (supra), hon'ble the supreme court has considered the judgments passed in the case of navjot singh sidhu v. state of punjab and anr. : 2007 cri lj 1427 (supra) and in the case of rama narang v. ramesh narang (supra), and has observed as under:in the present case, no such circumstances are in favour of the petitioner. in view of the serious offence for which he has been convicted by the special judge, we are not inclined to suspend the conviction and sentence awarded by the special judge in the present case. we make it clear that we do not express an opinion on the merit, and if any of the observations made in this order, even it has remote possibility to prejudice either parties, we state that the same is only made for the purpose of disposal of cr.m.p. no. 4087 of 2009 - application for suspension/stay of conviction.31. in the case of smt. akhtari bi v. state of m.p. : 2001 cri lj 1727 (supra), which has heavily been relied by the division bench of this court while staying the conviction order in the case of vijay saxena v. state (supra), hon'ble the supreme court has observed as under:appeal being a statutory right, the trial court's verdict does not attain finality during pendency of appeal and for that purpose his trial is deemed to be continuing despite conviction.32. it appears that the division bench of this court has not rightly appreciated the ratio decided by the hon'ble supreme court in the case of smt. akhtari bi v. state of m.p. (supra). therefore, we are of the view that the ratio decided by the division bench of this court is not applicable to the facts and circumstances of the present case as the hon'ble supreme court in the recent judgment passed in the case of sanjay dutt v. state of maharashtra tr. cbi, bombay : 2009 cri lj 2785 (supra), has thoroughly considered the judgments rendered in the case of navjot singh sidhu v. state of punjab and anr. (supra) and in the case of rama narang v. ramesh narang (supra).33. the division bench of the jodhpur high court in the case of om prakash v. state of rajasthan d.b. cr. misc. petition no. 166/2008 in d.b. cr. appeal no. 548/2007 : reported in : 2008 cri lj 4285, has considered the judgments rendered by the hon'ble supreme court in the cases of p.s. razia v. state of bihar reported in 1996 cri. lr (sc) 497, k.c. sareen v. cbi, chandigarh : 2001 cri lj 4234 (supra), smt. akhtari bi v. state of m.p. : 2001 cri lj 1727 (supra) and in the case of rama narang v. ramesh narang (supra) as well as the order passed by the division bench of this court in the case of vijay saxena v. state (supra), and having considered all these judgments and considering the observations made by the hon'ble supreme court in the case of k.c. sareen v. cbi, chandigarh (supra), dismissed the petition and refused to suspend/ stay the conviction order vide order dated 25-3-2008.34. having carefully gone through the ratio decided by the hon'ble supreme court and the division bench of this court and looking to the facts and circumstances of the case, in our considered view, the accused applicant is not entitled to order for suspension or stay of his conviction order dated 30-4-2008 passed by the additional district & sessions judge (fast track) no. 2, bharatpur.35. in the result, the present criminal misc. application for staying the conviction order stands rejected.
Judgment:

K.S. Rathore, J.

1. The present misc. application under Section 389 read with Section 482 Cr.P.C. has been moved on behalf of accused applicant Khemraj for staying the conviction order dated 30-4-2008 passed by the Additional District & Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 19/2005, whereby accused applicant Khemraj has been convicted and sentenced as under:

Under Section 147 IPC Rigorous imprisonment forthree months with a fineof Rs. 500/-, in defaultof payment of fine tofurther undergo one month'srigorous imprisonment.Under Section 148 IPC Rigorous imprisonment forone year with a fine ofRs. 1,000/-, in defaultof payment of fine tofurther undergo two monthsrigorous imprisonment.Under Section 323/149 IPC Rigorous imprisonment forthree months with a fine ofRs. 500/-, in default ofpayment of fine to furtherundergo one month'srigorous imprisonment.Under Section 324/149 IPC Rigorous imprisonment forone year with a fine ofRs. 1,000/-, in defaultof payment of fine tofurther undergo two monthsrigorous imprisonment.Under Section 326/149 IPC Rigorous imprisonment forthree years with a fineof Rs. 2,000/-, indefault of payment offine to further undergofour months rigorousimprisonment.Under Section 307/149 IPC Rigorous imprisonment forseven years with a fineof Rs. 3,000/-, in defaultof payment of fine tofurther undergo sixmonths rigorousimprisonment.Under Section 302/149 IPC Life imprisonment witha fine of Rs. 5,000/-,in default of paymentof fine to furtherundergo one year'srigorous imprisonment.Under Section 452/IPC Rigorous imprisonmentfor three years witha fine of Rs. 1,000/-,in default of paymentof fine to furtherundergo two monthsrigorous 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 25-8-2001 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 30-4-2008, the accused applicant has preferred an appeal before this Court and vide order dated 11-8-2008. the sentence awarded to the accused applicant has been suspended by the Division Bench of this Court, which shows that the charges levelled against the accused applicant are still to be adjudicated by this Court. Further a bare perusal of the allegations levelled against the accused applicant would reveal that he is not involved in any offence and if the impugned conviction order is not stayed, the accused applicant will lose his employment.

7. It is also contended that there is no likelihood of early disposal of the appeal and in purview of Article 21 of the Constitution of India, the accused applicant is entitled to earn his livelihood and for that purpose, the impugned conviction order passed by the Court below requires to be stayed for enabling the accused applicant to live with dignity and to maintain his family.

8. In support of his submission, learned Counsel Mr. Kamlakar Sharma appearing on behalf of the accused applicant has placed reliance on the order dated 5-11-2007 passed by the Division Bench of this Court in D.B. Criminal Misc. Application No. 810/ 2007 In D. B. Criminal Appeal No. 1590/ 2007. Vijay Saxena v. State, wherein the Division Bench has considered the provisions of Section 389(1) Cr.P.C., and also considered the judgment rendered by the Orissa High Court in the case of Benzamin Khiro v. State of Orissa reported in : 1995 Cr. L.J. 1682.

9. The Division Bench has also considered the judgment rendered 'by the three Judge Bench of the Hon'ble Supreme Court rendered in the case of Rama Narang v. Ramesh Narang reported in : (l995) 2 SCC 513, as well as the judgment in the case of Smt. Akhtari Bi v. State of M.P. reported in : JT 2001 (4) SC 40 : 2001 Cri LJ 1727

10. Having considered the ratio decided by the Hon'ble Supreme Court, the Division Bench of this Court in the aforementioned case of Vijay Saxena v. State (supra), has not only suspended the order of conviction till the disposal of the appeal but also stayed the order dated September 6, 2007 passed by the director General Prisons, Rajasthan, Jaipur under Rule 19 of the CCA Rules and directed that appellant Vijay Saxena shall be taken back in service forthwith,

11. Learned Counsel Mr. Kamlakar Sharma, in support of his submissions, has also placed reliance on the judgments rendered by the Hon'ble Supreme Court in the case of Ravikant S. Patil v. Sarvabhouma S. Bagali reported in (2007) 1 SCC 673 : 2006 AIR SCW 6365 as also in the case of Navjot Singh Sidhu v. State of Punjab and Anr. reported in : (2007) 2 SCC 574 : 2007 Cri LJ 1427 and tried to distinguish the judgment recently rendered by the Hon'ble Supreme Court in Cri. M. P. Nos. 4087, 5229, 5230, 5237 & 5314 of 2009. In Criminal Appeal No. 1060 of 2007, reported in : 2009 Cri LJ 2785; Sanjay Dutt v. State of Maharashtra Tr. CBI, Bombay.

12. On the other hand, learned Public Prosecutor appearing for the State as well as the Counsel appearing for the complaint strongly opposed the application for staying the conviction order and contended that in view of the recent decision rendered by the Hon'ble Supreme Court in the case of Sanjay Dutt v. State of Maharashtra Tr. CBI, Bombay (supra), the conviction recorded against the accused-applicant vide impugned judgment of conviction and order of sentence dated 30-4-2008 cannot be stayed for the reasons stated by the accused applicant.

13. We have heard learned Counsel for the accused-applicant, learned Public Prosecutor for the State as well as learned Counsel appearing for the complainant and carefully considered the averments made in the application. We have also minutely gone through the impugned judgment of conviction and order of sentence dated 30-4-2008 passed by the Court below and the judgments referred by the respective parties in support of their submissions.

14. It is not disputed that the accused applicant has preferred a writ petition before this Court, as mentioned herein above, challenging the departmental enquiry and in the aforesaid writ petition, this Court vide order dated 10-9-2002 suspended the departmental enquiry till the disposal of the writ petition, but subsequently after passing of the judgment by the Court below dated 30-4-2008, the aforesaid writ petition was dismissed as withdrawn by this Court vide order dated 12-8-2008.

15. It is also not disputed that vide order dated 21 -6-2008, after completion of the trial and after conviction of the accused applicant by the Court below vide impugned judgment dated 30-4-2008, whereby the accused applicant has been convicted under Section 302/149 IPC and sentenced to life imprisonment and also convicted and sentenced for the various offences, the accused applicant has been put under suspension.

16. The plea taken by the learned Counsel is that the accused applicant has preferred an appeal against the impugned judgment of conviction and order of sentence dated 30-4-2008 and the Division Bench of this Court has suspended the sentence of the accused applicant vide order dated 11 -8-2008. Thus, by way of the present application the accused applicant prays to stay the impugned conviction order passed against him on the ground that he is the sole earning member of his family.

17. We have carefully gone through the order dated 5-9-2007 passed by the Division Bench of this Court in the case of Vijay Saxena v. State (supra).

18. Section 389(1) of the Code of Criminal Procedure reads as under:

389(1). Pending any appeal by a convicted person, the appellate Court may, for reason to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.

19. It will be useful to understand the meaning of words 'conviction' and 'sentence'. 'Conviction' can be taken to mean 'the verdict at the time of trial'. To convict' means 'to declare guilty after trial'. Whereas primary meaning of word sentence is 'punishment imposed'. A sentence follows a 'conviction'.

20. Thus, the order of conviction is the part of the judgment and the same is followed by sentence if awarding of sentence is necessary and the accused applicant has already moved application for suspension of sentence and the same was allowed by this Court vide order dated 11-8-2008. Now the accused applicant has moved the present application for staying the impugned order of conviction.

21. Hon'ble the Supreme Court in the case of Smt. Akhtari Bi v. State of M.P. : 2001 Cri LJ 1727 (supra), has held that the appeal is statutory right, but asking for staying the conviction order is not a right and it is to be examined on the basis of the facts of the case in hand, as held by the Hon'ble Supreme Court in the case of Ravikant S. Patil v. Sarvabhouma S. Bagali 2006 AIR SCW 6365 (supra), wherein the Hon'ble Supreme Court has observed as under:

15. It deserves to be clarified that an 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 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. Be that as it may. Insofar as the present case is concerned, an application was filed specifically seeking stay of the order of conviction specifying the consequences if conviction was not stayed, that is, the appellant would incur disqualification to contest the election. The High Court after considering the special reason, granted the order staying the conviction. As the conviction itself is stayed in contrast to a stay of execution of the sentence, it is not possible to accept the contention of the respondent that the disqualification arising out of conviction continues to operate even after stay of conviction.

22. Upon bare reading of the observations made by the Hon'ble Supreme Court, it is crystal clear that an 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.

23. Thus, the ratio decided by the Hon'ble Supreme Court in the aforementioned case of Ravikant S. Patil v. Sarvabhoma S. Bagali (supra), relied upon by the learned Counsel for the accused applicant, is not applicable to the facts and circumstances of the present case.

24. Learned Counsel for the accused applicant has further placed reliance on the judgment rendered by the Hon'ble Supreme Court in the case of Navjot Singh Sidhu v. State of Punjab and Anr. : 2007 Cri LJ 1427 (supra). In this case also, Hon'ble the Supreme Court while considering the provisions of Section 389(1) Cr.P.C., has held as under:

Section 389(1) Cr.P.C. 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. Thus an appellate Court can suspend or grant stay of order of conviction. But the person seeking stay of conviction should specifically draw the attention of the appellate Court to the consequences that may arise if the conviction is not stayed. Unless the attention of the Court is drawn to the specific consequences that would follow on account of the conviction, the person convicted cannot obtain an order of stay of conviction. Further, grant of stay of conviction can be resorted to in rare cases depending upon the special facts of the case.

25. The facts and circumstances of the case of Navjot Singh Sidhu v. State of Punjab and Anr. (supra), are altogether different and thus, the ratio decided by the Hon'ble Supreme Court in the aforementioned case is also not applicable to the facts and circumstances of the present case as in this case also, Hon'ble the Supreme Court has observed that grant of stay of conviction can be resorted to in rare cases depending upon the special facts of the case.

26. It is also clear from the judgment delivered by the Hon'ble Supreme Court in the case of Rama Narang v. Ramesh Narang (supra) and as observed in the case of K.C. Sareen v. CBI, Chandigarh reported in : (2001) 6 SCC 584 : 2001 Cri LJ 4234 that the judgment of conviction can be stayed by the appellate Court or revisional Court, as the case may be, but it cannot be done in routine manner or only on the ground of preferring appeal or on the ground that sentence has been suspended by the appellate Court, Hon'ble the Supreme Court in the case of K.C. Sareen v. CBI, Chandigarh (supra) clearly held that though the power to suspend an order of conviction, apart from the order of sentence, is not alien to Section 389(1) of the Code, its exercise should be limited to very exceptional cases. Hon'ble the Supreme Court has held that merely because the convicted person had filed an appeal to challenge his conviction the Court should not suspend the operation of the order of conviction.

27. The discretion has been given to the Court to suspend the conviction so that in a fit case and where special reasons exist the Court can suspend the conviction. So far as other reasons given for suspension, of conviction in the present case is concerned, the reasons given in the application are that the accused applicant's service career was good and his family circumstances warrants that conviction should be stayed because there is nobody to support the appellant's family. However, in the application there are no material facts with respect to the accused applicant's family so as to find out how the case of the applicant is different from any convict as every convict normally may have family and may have to support his family.

28-29. In the case in hand, the learned Counsel for the accused appellant is not able to show any special facts in the case and the present case is not such a rare case where conviction order requires to be stayed.

30. In a recent judgment rendered by the Hon'ble Supreme Court in the case of Sanjay Dutt v. State of Maharashtra Tr. CBI, Bombay : 2009 Cri LJ 2785 (supra), Hon'ble the Supreme Court has considered the judgments passed in the case of Navjot Singh Sidhu v. State of Punjab and Anr. : 2007 Cri LJ 1427 (supra) and in the case of Rama Narang v. Ramesh Narang (supra), and has observed as under:

In the present case, no such circumstances are in favour of the petitioner. In view of the serious offence for which he has been convicted by the Special Judge, we are not inclined to suspend the conviction and sentence awarded by the Special Judge in the present case. We make it clear that we do not express an opinion on the merit, and if any of the observations made in this order, even it has remote possibility to prejudice either parties, we state that the same is only made for the purpose of disposal of Cr.M.P. No. 4087 of 2009 - application for suspension/stay of conviction.

31. In the case of Smt. Akhtari Bi v. State of M.P. : 2001 Cri LJ 1727 (supra), which has heavily been relied by the Division Bench of this Court while staying the conviction order in the case of Vijay Saxena v. State (supra), Hon'ble the Supreme Court has observed as under:

Appeal being a statutory right, the trial Court's verdict does not attain finality during pendency of appeal and for that purpose his trial is deemed to be continuing despite conviction.

32. It appears that the Division Bench of this Court has not rightly appreciated the ratio decided by the Hon'ble Supreme Court in the case of Smt. Akhtari Bi v. State of M.P. (supra). Therefore, we are of the view that the ratio decided by the Division Bench of this Court is not applicable to the facts and circumstances of the present case as the Hon'ble Supreme Court in the recent judgment passed in the case of Sanjay Dutt v. State of Maharashtra Tr. CBI, Bombay : 2009 Cri LJ 2785 (supra), has thoroughly considered the judgments rendered in the case of Navjot Singh Sidhu v. State of Punjab and Anr. (supra) and in the case of Rama Narang v. Ramesh Narang (supra).

33. The Division Bench of the Jodhpur High Court in the case of Om Prakash v. State of Rajasthan D.B. Cr. Misc. Petition No. 166/2008 in D.B. Cr. Appeal No. 548/2007 : reported in : 2008 Cri LJ 4285, has considered the Judgments rendered by the Hon'ble Supreme Court in the cases of P.S. Razia v. State of Bihar reported in 1996 Cri. LR (SC) 497, K.C. Sareen v. CBI, Chandigarh : 2001 Cri LJ 4234 (supra), Smt. Akhtari Bi v. State of M.P. : 2001 Cri LJ 1727 (supra) and in the case of Rama Narang v. Ramesh Narang (supra) as well as the order passed by the Division Bench of this Court in the case of Vijay Saxena v. State (supra), and having considered all these judgments and considering the observations made by the Hon'ble Supreme Court in the case of K.C. Sareen v. CBI, Chandigarh (supra), dismissed the petition and refused to suspend/ stay the conviction order vide order dated 25-3-2008.

34. Having carefully gone through the ratio decided by the Hon'ble Supreme Court and the Division Bench of this Court and looking to the facts and circumstances of the case, in our considered view, the accused applicant is not entitled to order for suspension or stay of his conviction order dated 30-4-2008 passed by the Additional District & Sessions Judge (Fast Track) No. 2, Bharatpur.

35. In the result, the present criminal misc. application for staying the conviction order stands rejected.