STAY / SUSPENSION OF CONVICTION
The High Court under Section 389(1) has the power to order that the execution of the sentence or order appealed against be suspended pending the appeal. In certain situations, the order of conviction can be executable, in the sense, it may incur a disqualification to the Accused. Such a disqualification can sometimes cause severe and irrevocable damage to the Accused. There are chances that the Accused could be thrown out of his/her job during the pendency of the appeal and since their culpability is to be determined at the time of final arguments the High Court has power to stay the conviction of the Accused pending appeal.
In Suspension of Sentence, only sentence is suspended during the pendency of the appeal and conviction subsists whereas in case of suspension of conviction, conviction is suspended from the date of the order. An order of stay does not render the conviction non-existent, but only non-operative. Generally, in the cases of the Government servants, orders of suspension of conviction are passed because an order of conviction may result into a disqualification with regards to many allowance/benefits. However, this power is to be used sparingly.
CASE LAW BY SINGH LAWYERS
Mr. Navkiran Singh for the applicant/appellant
In CRM-29191 of 2014 in CRA-S-3645-SB-2014, both the applicants (Manpreet Kaur and Raghbir Singh) were working in Government Department and were tried and convicted under sections 306,34 of IPC. They were sentenced to undergo RI for three years and to pay a fine of Rs. 5000/- each.
It was contended by Mr. Nakiran Singh that dispute was of matrimonial nature and has no connection with their conduct as Government officials. Applicants are being administratively dealt with purely for the reasons that they have been convicted in this case. There are chances of them to be thrown out of their respective jobs.
Hon’ble High Court in the order dated 28-10-2015 held that culpability of them is to be determined at the time of final arguments. Hence, Court stayed the conviction.
Copy of complete order:
Mr. Navkiran Singh for the applicant/appellant
In CRM-16307-2015 in CRA-S-1991-SB-2015- applicant was working as Class IV employee in the Government of Haryana. His retirement is due on 31.03.2017. He was convicted under sections 148, 452, 353, 186, 225 355 and 440 IPC and section 3 of Prevention of Damage to Public Property Act, 1984 and was sentenced to undergo RI for one year and to pay fine of Rs.1000/-
Mr. Navkiran Singh contended that his case is covered by the judgment of Rama Narang v. Ramesh Narang and others and if the suspension of conviction is not granted in this case then great prejudice will be caused to him as he will lose his post-retiral benefits and appeal is not likely to be heard in near future.
Hon’ble High Court observed in the order dated 15.02.2017 that
“in the present case, the present applicant/appellant No. 2- Pawan Sandhu has been working as Driver in Local Audit, Department of Haryana and is due to retire on 31.03.2017. He is the only bread winner of his family. But his services will now be dismissed/terminated on account of conviction in the present case. If, at the time of final decision of the appeal, it is held that the alleged offence has not been committed by applicant/appellant No.2- Pawan Sandhu, an irreparable loss would be caused to him because on account of dismissal from service his entire retiral benefits will not be released, it will lead to irreparable loss to applicant/appellant No. 2.
Keeping in view the above view the above discussion and law laid down by the Hon’ble Supreme Court in Rama Narang’s case (supra) the conviction of the applicant/appellant No. 2- Pawan Sandhu us stayed/ suspended during the pendency of the appeal.”
Copy of complete order:
LEGISLATION AND JUDICIAL INTERPRETATION
Section 389 of Criminal Procedure Code provides for Suspension of sentence or order (Suspension of sentence or suspension of conviction)
Suspension of sentence pending the appeal; release of appellant on bail.
(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons 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.
(2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto.
(3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,-
where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or
where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub- section (1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.
(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.
In the case of Rama Narang Vs. Ramesh Narang (1995) 2 SCC 513, Supreme Court held that “Section 389(1) empowers the Appellate Court to order that the execution of the sentence or order appealed against be suspended pending the appeal. What can be suspended under this provision is the execution of the sentence or the execution of the order. Does ‘Order’ in Section 389(1) empowers the Appellate Court to order that the execution of the sentence or order appealed against be suspended pending the appeal. What can be suspended under this provision is the execution of the sentence or the execution of the order. Does ‘Order’ in- Section 389(1) mean order of conviction or an order similar to the one under Sections 357 or 360 or the Code? Obviously, the order referred to in Section 389(1) must be an order capable in execution. An order of conviction by itself is not capable of execution under the Code. It is the order of sentence or an order awarding compensation or imposing fine or release on probation which are capable of execution and which if not suspended, would be required to be executed by the authorities.
In certain situations, the order of conviction can be executable, in the sense, it may incur a disqualification as in the instant case. In such a case the power under Section 389(1) of the Code would be invoked. in such situations, the attention of the Appellate Court must be specifically invited to the consequence that is likely to fall to enable it to apply its mind to the issue since under Section 389(1) it is under an obligation to support its order ‘for reasons to be recorded by it in writing’. If the attention of the Court is not invited to this specific consequence which is likely to fall upon conviction how can it be expected to assign reasons relevant thereto? … If such, a precise request was made to the Court pointing out the consequences likely to fall on the continuance of the conviction order, the Court would have applied its mind to the specific question and if it thought that case was made out for grant of interim stay of the conviction order, with or without conditions attached thereto, it may have granted an order to that effect.”