IN THE HIGH COURT OF JUDICATURE AT PATNA
CR. APP (SJ) No.974 of 2008
MUNNA
Versus
STATE OF BIHAR
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6. 01 .4.2011 I.A.No. 655 of 2011
Appellant Munna, who stands convicted for
committing offences under Sections 147,148,323, 304 read with
Section 149 of the Indian Penal Code and was directed to suffer
rigorous imprisonment for ten years on account of committing
the offences under Section 304/149 of the Penal Code, has filed
the present interlocutory application with a prayer to suspend his
conviction as ordered by the Additional Sessions Judge, Fast
Track Court No. 8, Purnia by his judgment and order dated
13.8.2008 and 19.8.2008, respectively, in Sessions Case No. 280
of 2005/ Tr. No.128 of 2008.
It was contended on behalf of the appellant that the
case arises out of a rivalry between families of two persons who
were past and present Mukhiyas on the day of occurrence and
the appellant being son of an Ex-Mukhiya has falsely been
implicated in this case. It was contended that the appellant is
desirous of contesting the ensuing elections for Mukhiya-ship
and there being no straightjacket formula for considering this
issue, this Court should consider the right of the petitioner to
contest the elections as the wishes of a citizen.
There are two decisions of this Court – one
reported in 2009(2) P.L.J.R. 650 Rajesh Ranjan alias Pappu
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Yadav Vs. State of Bihar through C.B.I. and the other
unreported decision which was passed on a similar petition
bearing I.A. No. 1522 of 2010 in Cr. Appeal No. 358 of
2008(D.B.) on 30.9.2010. The scope and ambit of the powers of
an appellate court under Section 389(1) Cr. P.C. has been
discussed broadly in the unreported order of the Division
Bench to which I was also a party in paragraph 6 which runs as
under:
Section 389(1) Cr.P.C. empowers appellate court to
order that execution of sentence or order appealed
against be suspended and also, if any convicted
person is in confinement that he be released on bail
or his own bond. Sub-section(2)of that Section
entitles the High Court also to exercise that power
in case of an appeal by a person convicted by a sub-
ordinate court. It is too well known to be pointed
out that if there could not be any conviction, there
could not be any question of passing any sentence
and, as such, the order of sentence is consequential
to the order of conviction. As such, the word
„order’ which appears after the words „execution
of sentence’ being conjuncted by „or‟ refers to an
order of conviction. As soon as an accused is
granted bail and he is released from custody, the
order of sentence could be said to be suspended
automatically as the person is released and he could
no longer be said to be serving out the sentence
which was directed to be served by him on being
inflicted upon him. But, the effect of his conviction
remains, till it is suspended. A subsisting order of
conviction may entail many disqualifications upon a
convicted person. If the conviction is suspended, the
effect of such an order is not only that the sentence
is automatically stayed as in that situation the
convicted person has necessarily to be released
from custody but also that the disqualification
arising out of the order of conviction may
temporarily be erased entitling the convict to
contest an election. He is also precluded from
serving out the sentence and, thereby, his sentence
also stands suspended. It may, as such, be noted that
suspending the order of conviction is a very serious
judicial business and the order in that behalf may
3not as ordinarily be granted as the Court is
approached. The exceptional nature of an order
suspending the conviction of a convict, may be
gathered from this fact that the provision mandates
the appellate court to record reasons in writing for
suspending the order of conviction. What, therefore,
implies is that if the appellate court is not inclined
to suspend the conviction of a person under Section
389(1) Cr.P.C. then also it may be all the more
necessary for the appellate court to record reasons
of refusing the prayer because it might ultimately be
continuing the disqualification which the convicted
person might have incurred on account of being
visited with an order of conviction. The above
aspect on the scope and ambit of Section 389 (1)
Cr.P.C. was considered by this Court while
considering a similar prayer in Rajesh Ranjan alias
Pappu Yadav Vs. State of Bihar through CBI
reported in 2009(2) P.L.J.R 650.”
It is true that there is no direct allegation against the
present petitioner of dealing any blow but his participation as
one of the members of the unlawful assembly armed with
deadly weapon, like a firearms, has been upheld by the trial
court. As such, he has also been held guilty under Sections
304/149 of the Penal Code. The scope of this Court‟s
jurisdiction under Section 389(2) Cr. P.C. is not as broad as it
has while deciding an appeal as for consideration of the
prayer of the present nature, the Court has simply to consider
the evidence in the manner as could be suggestive of
sufficiency of material on participation. That appears
discussed by the learned trial Judge in his judgment and
considering that it could not be said that the findings were
completely erroneous or such as could be permitting this
Court to direct suspension of the conviction of the petitioner
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as prayed for.
Besides, as regards the contention of the appellant
that he is desirous of contesting the ensuing elections for
Mukhiya-ship, simply being desirous of contesting election
may not be sufficient to entitle a person to an order in his
favour suspending his conviction. This Court has already
pointed out in Rajesh Ranjan alias Pappu Yadav(Supra) that
contesting election may not be a ground for allowing the
prayer of the present nature as it may not entail an irreversible
consequence upon a person like the petitioner. While so doing
this Court had pointed out that “Fighting an election may be a
democratic right of a citizen but his wishes of being elected in
the election cannot be categorized as any of his rights. In
politics, one could not say that his position is irreversible. A
person could be holding the highest office of the executive one
day but by sheer change in political circumstances, he might be
finding himself out of that position and as a mere Member or
even as no Member of the House of any legislature or
Parliament. Likewise, one could have won and could have been
elected as a Member of the Parliament in one particular election,
but in the other, he might not be winning the elections or the
worst of the possibility could be that if he is affiliated to any
particular political party, then that party may not consider him to
be fit for being fielded as its candidate in any constituency.
Thus, the plea of irreversible consequence appears of no benefit
to the appellant. Injustice could not be said to be inflicted upon
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any one merely because the court has a definite opinion on a
particular issue under the special facts and circumstances of the
case rather the court could be justified in passing a particular
order.”
In addition to the above, in the same order rendered
in Cr. Appeal No. 358 of 2008) (D.B.) on I.A. No. 1522 of
2010 after having considered all the relevant decisions on
constitutional provisions, this Court recorded that suspending
the order of sentence may be watering down the constitutional
provision not only on exercising right of adult franchise of the
citizen but also on contesting an election.
For the foregoing reasons, I am not inclined to
allow the present interlocutory application and thereby to
direct suspension of the conviction of the appellant. The
application appears of no merit.
It is dismissed.
Kanth ( Dharnidhar Jha, J.)