Shri. Shivaji Sambhaji Karche v. The State of Maharashtra

Judgment

1. referred ‘the Code 1973’), exception 13th April, 2005 passed Additional Sessions Judge, Malshiras. By Judgment Order, Application Applicant section 389(1) Code 1973 rejected. The prayer Application was for suspension of order of conviction passed against the Applicant.

2. The order of conviction passed against the Applicant learned Judicial Magistrate, Class, Malshiras. The Applicant accused convicted section 432 First section 34 Indian Penal Code. The Applicant accused convicted section 427 section 34 Indian Penal Code. An ... 2 ... Application section 389(1) Code 1973 initially Appeal preferred Applicant accused

passed 7th January, 2005 a substantive sentence decision imprisonment suspended Appeal condition Accused furnishing stated order. One Application section 389(1) Code 1973 Exhibit 15 6th April, 2005 pointing conviction, Applicant removed Government Service. Therefore, a prayer suspension conviction. By impugned Judgment Order, learned Additional Sessions Judge that under section 389(1) of the said Code of 1973, the order of conviction cannot be suspended.

3. The learned Counsel appearing for the Applicant invited attention various decisions Apex Court submitted a vesting Sessions Court suspend conviction during submitted pendency Appeal. allegations prosecution against Applicant trifle nature against Applicant certain belonging complainant embankment destroyed accused including Applicant. The Applicant accused question belong He ... 3 ... complainant extract showing produced. He pointed learned Magistrate belonging complainant Applicant accused produce extract showing He Applicant accused. pointed offence proved against Applicant intentionally caused mischief damage complainant obstructing drainage causing inundation agricultural complainant. He submitted dispute appears essentially a boundary dispute between complainant accused. pointed a result conviction, He Applicant livelihood removed service. He placed reliance decisions Apex Court I referring stage. The learned A.P.P. supported impugned Judgment Order submitting section 389(1) Code 1973, Court suspension of conviction and the power is confined to suspending the operation order of sentence.

4. I have considered the rival submissions. It necessary a decision Supreme Court reported (1995) (1995) (1995) 2 2 2 Supreme Supreme Supreme Court Court Court Cases Cases Cases 513 513 513 (Rama (Rama (Rama Narang Narang Narang Vs. Vs. Vs. Ramesh Ramesh Ramesh Narang Narang Narang Others). Others). Others). The Apex Court Appeal preferred ... 4 ... section 374 Code 1973, Appeal against conviction sentence therefore, reason narrow interpretation Section 389(1) Code 1973 holding provision extend of conviction. Paragraph No.19 of the decision of the Apex Court reads thus: consequential takes us to the question ThatThatThat takes us to the question takes us to the question narrow narrow narrow Code Code Code merely because extends extends extends Court Court Court granting granting granting Code Code Code Appellate Appellate Appellate case. case. case. essentially The against mentioned mentioned mentioned Act, Act, Act, a a a

19. whether whether whether thethethe thethethe ofofof earlier, earlier, earlier, result result result Companies Companies Companies should should should 389(1) 389(1) 389(1) fromfromfrom conviction independently guilt. preferred preferred preferred thethethe andandand Section Section Section ititit ititit thethethe exercise exercise exercise 482 Section Section 482 482 Section notnotnot to be found in Section 389(1) of the to be found in Section 389(1) of the to be found in Section 389(1) of the Code.(Emphasis supplied) Code. Code. disproportionate Therefore, Therefore, Therefore, Section Section Section against against against sentence sentence sentence inherent inherent inherent 389(1) 389(1) 389(1) background background background a a a challenged appeal appeal appeal Section Section Section conferring conferring conferring conviction. conviction. conviction. 389(1) 389(1) 389(1) As As As conviction conviction conviction disqualification disqualification disqualification 267 Section 267 Section 267 Section reason why reason why reason why meaning meaning meaning appeal effect effect effect Section thereto; 374 374 374 sentence appeal appeal appeal therefore, therefore, therefore, narrow narrow narrow Code Code Code interpretation interpretation interpretation conviction, conviction, conviction, conviction, conviction, conviction, recedes recedes recedes instant instant instant instant instant instant because because because High High High Courts Courts Courts Code Code Code jurisdiction jurisdiction jurisdiction operation operation operation stated stated stated Section Section Section 374 sentence albeit established Code Code Code conviction conviction conviction extend extend extend although although although extend extend extend although although although reference another decision A Apex Court reported (2001)6 (2001)6 (2001)6 Supreme Supreme Supreme CasesCasesCases 584 584 584 (K.C.Sareen (K.C.Sareen (K.C.Sareen Vs. Vs. Vs. CBI, CBI, CBI, Chandigarh) Chandigarh) Chandigarh) Court Court Court Apex Court relied earlier judgment ... 5 ... the case of Rama Narang(Supra).Paragraph No.11 of the said decision reads thus: The legal position, therefore, conviction, conviction, conviction, this: cases. cases. cases. 389(1) 389(1) 389(1) should should should ramifications ramifications ramifications person person person abeyance. abeyance. abeyance. suspend suspend suspend conviction. conviction. conviction. though though though sentence, sentence, sentence,

11. ananan Section Section Section exercise exercise exercise exceptional exceptional exceptional convicted convicted convicted challenge challenge challenge should should should dutydutyduty thethethe conviction conviction conviction public offence appeal conviction should imprisonment appeal, render suspension of imprisonment as a sequel thereto, is a different matter.(Emphasis supplied) appellate sentence conviction Act, servant examine normally because should appeal filing PC PC Act, suspend limited limited limited Merely Merely Merely Code, Code, Code, because because because appeal appeal appeal conviction conviction conviction operation operation operation The The The aspects aspects aspects keeping keeping keeping It position question position convicted PC Act. No admits challenge superior disposal refusal thereof sentence appeal otiose appeal. dehors suspend suspend suspend a a a including including including a offence unless But offence sentence After holding aforesaid, Apex Court a conviction a corruption charge against public servant, Appellate Court Revisional Court should suspend conviction during pendency Appeal sentence imprisonment suspended. But Apex Court a suspend conviction sentence section 389(1) ... 6 ... Code

1973. The Apex Court should exercised exceptional before exercised, Court is to look at all aspects including ramifications of keeping the said conviction in abeyance.

5. The learned Additional Sessions Judge referred decision Apex Court reported (2001) (2001) (2001) 7 7 7 Supreme Supreme Supreme Court Court Court Cases Cases Cases 231 231 231 (B. (B. (B. R. R. R. Kapur Kapur Kapur Vs. Vs. Vs. StateStateState T.N. T.N. T.N. Another) Another) Another) conviction cannot suspended section 389(1) the said Code of 1973. The relevant portion of the paragraph No.34 of the said decision reads thus: Madras second criminal imprisonment appeals context petitioners section It is true that the order of 389 High Court Section bail...",

34. application states:"Pending sentence suspended relased Under sentence suspended...". sentence execution disposal offender offence years. remove the disqualification against the second respondent. imprisonment It sentences, execution affect The suspension appellate sentence appeal. appellate "the execution appealed against within suspend pending The sentence suspension convicted attracted therefore, a repsondent 389 exercised. suspend sentence execution If decision Apex Court read, ... 7 ... apparent regarding Court suspend conviction before Apex Court. The decided Apex Court whether a person convicted criminal offence conviction suspended pending Appeal continue function Chief Minister a State. The Apex Court really examined question whether Appellate Court suspend conviction. The Apex Court further observed suspension execution sentence remove disqualification against Respondent before it. The Apex Court a decision reported (2003) 12 Supreme Court Cases, 434 (Union India Vs. Atar Singh) "It cannot doubted Section 389 confers a discretion Appellate Court decide question suspension conviction a case." Thus, appears a correct position aspect emerges decision Apex Court K.C.Sareen (Supra) Atar Singh (Supra) but, suspend conviction exercised exceptional considering aspects matter including conviction ramifications keeping abeyance. Thus, learned Additional Sessions Judge seems to be incorrect. ... 8 ...

6. By the Application in question, the Applicant sought extra-ordinary relief suspension conviction. As I a vesting Court suspend conviction, question whether exercised. The Appeal pending before learned Additional Sessions Judge. The record Court before learned Additional Sessions Judge. The material record examined before relief prayed Applicant considered merits. The ramifications passing examined. This exercise be left to the Sessions Court by remanding the matter.

7. i) Hence, I pass the following order: : O R D E R : The impugned Judgment and Order dated 13th April, 2005 quashed Application Exhibit 15 Applicant Criminal Appeal No.02 2005 restored file. The learned Additional Sessions Judge decide said Application afresh in the light of the observations made in this judgment. JUDGE JUDGE JUDGE