KANHAIYA LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Petitioner Kanhaiya Lal, a public servant as a Patwari along with other co-accused faced trial for the offence under sections 420, 120B, 467, 468 and 471 I.P.C. and was convicted and sentenced by the Additional Chief Judicial Magistrate, Neem Ka Thana by the judgment dated 2.8.2004. Thereafter an appeal was filed before the Addl. Sessions Judge, Neem Ka Thana. On the application for suspension of execution of sentence, the appellate Court vide order dated 4.8.2004 suspended execution of the sentence during pendency of the appeal. During the pendency of the appeal, the petitioner filed an application under Section 389 Cr.P.C. for suspension/stay of conviction. The appellate Court after hearing both the sides vide order dated 24.5.2005 rejected the application and declined the relief sought for on the ground that there is no provision for suspension of conviction under Section 489 (sic 389) Cr.P.C. Feeling aggrieved of the order, the petitioner has filed the present Misc. Petition for quashing of the order dated 24.5.2005 and seeking further relief to stay of the judgment of conviction.

(2.) Heard learned counsel for the petitioner and learned Public Prosecutor.

(3.) Learned counsel for the petitioner has submitted that during pendency of the appeal sentence as well as the conviction can be suspended under Section 389 Cr.P.C. when the ground existed to do so. Referring the facts of the present case, learned counsel for the petitioner has submitted that in case conviction is not stayed/suspended the petitioner will loose his job and it would be very difficult for him to pull on his family as service is the only source of his livelihood. In support of his submission, learned counsel for the petitioner has placed reliance on the D.B. Judgment passed by this Court in the matter of Kanhaiya v. The State of Rajasthan, 2001(3) WLC (Raj.) 411 and also on the order dated 2.8.2001 passed by a Division Bench of this Court in the matter of Furquan Ahmed and Anr. v. State of Rajasthan, D.B. Criminal Misc. Stay (Suspension of Conviction) Application No. 772 of 2001 in D.B. Criminal Appeal No. 660 of 1996.