# Daya Shanker Rai & another v. State of U.P

- **Citation:** (2007) 3 ILRA 914
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-11-29
- **Case number:** IN Criminal Appeal No. 1365 of 2006
- **Bench:** Amar Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/daya-shanker-rai-another-v-state-of-u-p-41167
- **Pages:** 8

## Headnote

Code of Criminal Procedure-Section 389
(1)-Suspension
of
Conviction-and
suspension of sentence-difference and
Scope
of
interference
explainedconviction
of
7
years
rigorous
imprisonment for offence under Section
307 I.P.C.-applicant was working as
clerk in school-only ground disclosed-if
no stay order passed-he shall be ousted
from service-whether amounts to moral
turpitude? Held-such question is to be
decided only by disciplinary authority-
3 All] Daya Shanker Rai and another V. State of U.P.
915
keeping it open to agitate this question
before the writ court itself.

Held: Para 24

However, whether the present offence
involves a question of moral turpitude or
not so as to dis-entitle the appellantapplicant
from
reinstatement
is
a
question, which will have to be gone into
and decided by the appropriate authority
in the departmental proceedings and it
would be open to the applicant-appellant
Daya Shanker Rai to canvass the said
issue in Civil Misc. Writ Petition No.
45958 of 2006 if he is so advised against
the
order
passed
by
the
District
Inspector of Schools, Ghazipur whereby
the initial approval of the suspension had
been given by the DIOS although in the
said case the appellant was not given
any interim relief or in Writ Petition No.
46970 of 2006 whereby the withdrawal
of the suspension order by the DIOS
dated 19.8.2006 had been stayed by the
learned Single Judge.
Case law discussed:
J.T. 1996 (6) SC-621, J.T. 2007 (2) SC-382,
J.T. 2006 (1) SC-578, J.T. 1995 (6) SC-621,
J.T. 2001 (6) SC-59, J.T. 2001 (8) SC-40, J.T.
2003 (10) SC-164

## Text

914 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
purpose of granting benefit to a juvenile
accused,
the
relevant
date
for
determination of age is the date of
delinquency and not the date of trial or
hearing of appeal.

30. Section 27 of U.P. Children Act
provides that notwithstanding anything to
the contrary in any law, no court shall
sentence a child to imprisonment for life
or to any term of imprisonment. Section 2
provides, in so far as it is material, that if
a child. is found to have committed an
offence punishable with imprisonment,
the court may order him to be sent to an
approved school for such period of stay as
will not exceed the attainment by the
child of the age of 18 years.

31. In the instant case appellant Bira
was a child within the meaning of section
2(4) of U.P. Children Act 1951 and now
after 27 year of the incident there is
absolutely no justification for sending him
to a reformatory school. In similar
situation the Apex court in Jayendra case
(supra) upheld the conviction but the
sentence of imprisonment imposed upon
the accused who was a child on the date
of delinquency but had become major by
the time his appeal, was decided was set
aside we are of the opinion that similar
treatment can be given to the appellant
Bira in this case.

32. In view of the observations made
above, the conviction of appellants Bira,
Tara, Onkar and Mohd.Shafi as recorded
by the trial of court is confirmed. The
sentences passed on them except on Bira
are also confirmed. With regard to Bira
appellant, in view of discussion made
above, the sentence of imprisonment
passed
on
him
is
quashed
while
conviction remains intact. Bira's appeal to
that extent is allowed and appeal of other
appellants is dismissed. The appellants are
on bail. Bail of Tara, Onkar and Mohd.
Shafi is cancelled. They shall be taken
into custody to serve out the sentence.
Bira need not surrender. Let a copy of this
judgment be certified to the trial court for
necessary action.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.11.2007

BEFORE
THE HON'BLE AMAR SARAN, J.

Misc. Application for suspension of
conviction No. 192600
IN
Criminal Appeal No. 1365 of 2006

Daya Shanker Rai & another ...Appellants
Versus
State of U.P.

...Opposite party

Counsel for the Appellants:
Sri Shishi Tandon
Sri G.S. Chaturvedi
Sri Dharmendra Singhal
Sri Santosh Dwivedi

Counsel for the Opposite Party:
Sri Shailendra Sharma
Sri Kamal Krishna
A.G.A.

Code of Criminal Procedure-Section 389
(1)-Suspension
of
Conviction-and
suspension of sentence-difference and
Scope
of
interference
explainedconviction
of
7
years
rigorous
imprisonment for offence under Section
307 I.P.C.-applicant was working as
clerk in school-only ground disclosed-if
no stay order passed-he shall be ousted
from service-whether amounts to moral
turpitude? Held-such question is to be
decided only by disciplinary authority-
3 All] Daya Shanker Rai and another V. State of U.P.
915
keeping it open to agitate this question
before the writ court itself.

Held: Para 24

However, whether the present offence
involves a question of moral turpitude or
not so as to dis-entitle the appellantapplicant
from
reinstatement
is
a
question, which will have to be gone into
and decided by the appropriate authority
in the departmental proceedings and it
would be open to the applicant-appellant
Daya Shanker Rai to canvass the said
issue in Civil Misc. Writ Petition No.
45958 of 2006 if he is so advised against
the
order
passed
by
the
District
Inspector of Schools, Ghazipur whereby
the initial approval of the suspension had
been given by the DIOS although in the
said case the appellant was not given
any interim relief or in Writ Petition No.
46970 of 2006 whereby the withdrawal
of the suspension order by the DIOS
dated 19.8.2006 had been stayed by the
learned Single Judge.
Case law discussed:
J.T. 1996 (6) SC-621, J.T. 2007 (2) SC-382,
J.T. 2006 (1) SC-578, J.T. 1995 (6) SC-621,
J.T. 2001 (6) SC-59, J.T. 2001 (8) SC-40, J.T.
2003 (10) SC-164

(Delivered by Hon'ble Amar Saran, J.)

1. The applicants-appellants have
moved this application, for suspension of
conviction,
in
the
criminal
appeal,
wherein the appellants and others were
convicted and sentenced inter alia to
seven years rigorous imprisonment and a
fine of rupees ten thousand each under
Section 307 IPC.

2. It may be pointed out that earlier
the appellants were enlarged on bail by
my order dated 22.3.2006. At that time
the sentence of the appellants was
suspended, but no order had been passed
suspending the conviction.
3. I have heard Shri Dharmendra
Singhal,
learned
counsel
for
the
applicants-appellants,
Shri
Shailendra
Sharma,
learned
counsel
for
the
complainant
and
learned
Additional
Government Advocate.

4. The appellants are seeking
suspension of their conviction because it
is urged that appellant-applicant No. 1
Daya Shanker Rai is a government
servant and the department is taking
action against him in view of the fact that
his conviction has not been suspended.

5. Learned counsel for the appellants
contends that an order of suspension of
the conviction should invariably be
passed and there is inherent power to stay
the order of conviction under Section
389(1) of the Code of Criminal Procedure
(hereinafter referred to as the Code).

6. Learned counsel for the appellants
has referred to some authorities of the
Apex Court for setting up the proposition
that except for cases under the Prevention
of Corruption Act, in other matters, the
conviction
should
invariably
be
suspended when an appeal is filed.

7. He has further argued that in view
of the fact that the conviction of the
appellant-Daya Shanker Rai was not
suspended, hence an order had been
passed by the Manager of Janta Janardan
Inter College, Ghazipur on 13.3.2006
suspending the appellant-Daya Shanker
Rai, who worked as Assistant Clerk in the
college in view of his conviction in the
present case. The District Inspector of
Schools, Ghazipur had approved of the
suspension as the appellant Daya Shanker
Rai had been in jail for over 48 hours as a
result of the judgement of conviction by
916 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
the trial court dated 9.3.2006. Thereafter
on 19.8.2006 the DIOS, Ghazipur had
reinstated the appellant Daya Shanker Rai
on
his
job
because
the
enquiry
proceedings subsequent to his suspension
had not been completed within four
months.

8. However, as the Manager Rajesh
Rai had filed a civil miscellaneous writ
petition No. 46970 of 2006 against the
order of reinstatement, the said order
reinstating the petitioner was directed to
remain
stayed
by
an
order
dated
29.8.2006. It was against extended on
1.9.2006.

9.

Learned
counsel
for
the
complainant
and
learned
Additional
Government
Advocate,
however,
contended that in normal circumstances
under
Section389
(1)
Cr.P.C.
only
execution
of
sentence
awarded
is
suspended as a precondition for granting
bail and it is only in extraordinary and
exceptional circumstances that an order of
conviction is directed to be suspended and
no such order directing suspension of
conviction can be passed in ordinary
course and it needs to be specifically
pointed out by the applicant-appellantDaya Shanker Rai as to what are the
disqualifications that would ensue if the
conviction was not suspended for granting
the extraordinary relief. The contention of
the learned counsel for the appellants that
it is only in matters involving offences
under the Prevention of Corruption Act,
the orders of conviction is not suspended
is not correct.

10. Learned counsel for the
complainant
and
learned
Additional
Government Advocate relied on certain
decisions of the Apex Court in support of
their
contentions
and
I
shall
be
considering the authorities furnished by
both the sides in the course of this order.

At the outset, it would be appropriate
to peruse Section 389(1) of the Code,
which is as follows:

"389(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."

11. On a mere perusal of the
aforesaid provision, it appears that the
section
principally
contemplates
suspension of execution of the sentence or
order appealed against as a pre-condition
for release of the appellant on bail, but it
does not directly speak of suspension of
conviction. In paragraph 11 in K.C.
Sareen Vs. CBI Chandigarh, 201 SCC
(Cri)1186, it has been observed as
follows:

"No doubt when the appellate court
admits the appeal filed in challenge of the
conviction and sentence for the offence
under the Prevention of Corruption Act,
the superior court should normally
suspend the sentence of imprisonment
until disposal of the appeal, because
refusal thereof would render the very
appeal otiose unless such appeal could be
heard soon after the filing of the appeal.
But suspension of conviction of the
offence
under
the
prevention
of
Corruption Act, dehors the sentence of
imprisonment as a sequel thereto, is a
different matter.
3 All] Daya Shanker Rai and another V. State of U.P.
917
But, it would be wrong to take the
view
that
in
no
circumstance
the
conviction of the appellant can be
suspended even if the appellant's counsel
makes
out
proper
conditions
and
indicates the serious disqualifications that
an accused will have to under go if his
conviction is not suspended."

12. The case which seems to have
examined this controversy was Rama
Narang Vs. Ramesh Narang and others,
1995 JIC 889 (SC). The said case makes a
distinction between an order imposing a
sentence
or
an
order
awarding
compensation or imposing a fine or
releasing an accused on probation, which
are capable of execution and which if not
suspended would be required to be
executed by the authorities from an order
of conviction, where on mere filing of the
appeal, there is no unavoidable necessity
for suspension of the order of conviction
nor does the conviction automatically
disappear by filing of the appeal and as it
was rightly put in Rama Narang's case in
paragraph 15 that "if that be so why seek
a stay or suspension of the order?"

13. However, the said authority
clarifies in paragraph 16 that in certain
circumstances the order of conviction can
be executable as it may incur certain
disqualifications. In such case, the power
under Section 389(1) of the Code could
be invoked provided that the attention of
the appellate court is invited to the
consequences that would ensue if the
order of conviction was not stayed and for
which the court is obliged to record its
reasons in writing.

14. In this connection, the following
lines in paragraph 16 of Rama Narang's
case may be usefully read:
"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 could
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? No one can be allowed
to play hide and seek with the Court; he
cannot suppress the precise purpose for
which he seeks suspension of the
conviction and obtain a general order of
stay
and
then
contend
that
the
disqualification has ceased to operate. In
the instant case if we turn to the
application by which interim' 'stay' to the
operation of the impugned judgement was
secured we do not find a single word to
the effect that if the operation of the
conviction is not stayed the consequence
as indicated in Section 267 of the
Companies Act will fall on the appellant.
How could it then be said that the Delhi
High Court had applied its mind to this
precise question before granting stay?
That is why the High Court order granting
interim stay does not assign any reason
having relevance to the said issue. By not
making a specific reference to this aspect
of the matter, how could the appellant has
persuaded the Delhi High Court to stop
the coming into operation of Section 267
of the Companies Act? And how could
the Court have applied its mind to this
question if its pointed attention was not
drawn? As we said earlier the application
918 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
seeking interim stay is wholly silent on
this point. That is why we feel that this is
a case in which the appellant indulged in
an exercise of hide and seek in obtaining
the interim stay without drawing the
pointed attention of the Delhi High Court
that stay of conviction was essential to
avoid the disqualification under Section
267 of the Companies Act. 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. There can be no doubt that the
object of Section 267 of the Companies
Act is wholesome and that is to ensure
that the management of the company is
not in solid hands. As we have pointed
out earlier the Managing Director of the
company holds a fiduciary position qua
the company and its share-holders and,
therefore, different consideration would
flow if an order is sought from the
Appellate Court for staying the operation
of the disqualification that would result on
the application of Section 267 of the
Companies Act. Therefore, even on facts
since the appellant had not sought any
order from the Delhi High Court for stay
of the disqualification he was likely to
incur under Section 267 of the Companies
Act on account of his conviction, it cannot
be inferred that the High Court had
applied its mind to this specific aspect of
the matter and, therefore, granted a stay of
the operation of the impugned judgement.
It is for that reason that we do not find in
the order of the High Court a single
reason relevant to the consequence of the
conviction under Section 267 of the
Companies Act. The interim stay granted
by the Delhi High Court must, therefore,
be read in that context and cannot extend
to stay the operation of Section 267 of the
Companies Act."

For this reason, the learned Judges in
Rama Narang's case held that the general
order staying the operation of the order of
the trial court by the High Court did not
mean any stay of the order of conviction.

15. In the present case I also find
that a general prayer for suspension of
conviction has been made only by
pointing out that the appellant being a
government servant would be liable for
departmental action unless the conviction
was stayed and that as the appeal had
been
filed,
the
conviction
should
necessarily be stayed without indicating
the specific disqualification that would
ensue in the fact and circumstances of the
present case unless the order of conviction
was suspended.

16. In this context paragraphs 4 to 7
of the application of suspension of
conviction may be usefully extracted:

"4. That since the appellant No. 1 is
a Government Servant and Department is
taking action against him on the score
that the conviction was not suspended.

5. That the appeal is continuation of trial
and appeal being a statutory remedy the
guilt/conviction of the appellant is not yet
finalized.

6. That in view of the matter and as per
the decisions of the Hon'ble Supreme
Court delivered in Rama Narang's case
(1995)@ SCC 513 that the court has
inherent power to suspend or grant
3 All] Daya Shanker Rai and another V. State of U.P.
919
interim stay the order of conviction under
Section 389(1) of the Code.
7. That in these circumstances the order
of conviction may be stayed during the
pendency of the appeal."

17. In State of Tamil Nadu Vs. A
Jaganathan, JT 1996(6) SC 621, it was
rightly clarified that as the moral conduct
of the public servant comes in question
when he is convicted of a criminal
offence, which would affect the purpose
of his duty, it would be wrong to stay the
conviction because of some possible harm
that an accused public servant could
suffer if ultimately his revision or appeal
was allowed as that would entail staying
the conviction in every pending appeal or
revision " by taking into consideration the
trifling matters" and even when the harm
could be undone by payment of arrears of
salary, stipend etc. to the appellant in case
of eventual acquittal.

18. In A. Jaganathan (Supra) the
High
Court's
order
suspending
the
conviction was set aside by the Apex
Court because the High Court did not
consider the moral conduct of the
respondent, such as the fact that the
respondent A. Jaganathan, who being
attached as Inspector to a police station
had eroded the confidence reposed in him
and had been convicted under Sections
392/218/466 IPC, while the other public
servants accused had been convicted
under the provisions of Prevention of
Corruption Act.

19. Thus, I think that the contention
of learned counsel for the appellants that
there could be a restraint on suspension of
the conviction only in cases under the
Prevention of Corruption Act is not
correct. In other cases, which involve
questions of moral turpitude, the order of
conviction should not be stayed on the
mere asking that they would entail some
disqualifications for the accused.

20. In the present case I find that
appellant No. 2, who is not said to be a
public servant has even used a firearm
and appellant No. 1 has also used a Lathi
along with other accused and the other
accused had been convicted under Section
307 IPC in the said incident. Five persons
on the prosecution side have received a
number of injuries including firearm
injuries to the injured Arvind Rai.

21. The case Navjot Singh Sidhu Vs.
State of Punjab and another, JT 2007 (2)
SC 382, which has been relied upon by
the learned counsel for the appellantsapplicants is clearly distinguishable. In
the said case the circumstances entailing
the disqualification of the appellant
Navjot Singh Sidhu unless the order of
conviction
was stayed, was clearly
indicated. Thus, it was pointed out in the
said case that when the High Court had
set aside the judgement of acquittal by the
trial court and sentenced Navjot Singh
Sidhu and co-accused inter alia to three
years RI and a fine under Section 304
part-II IPC on 6.12.2006 when Navjot
Singh Sidhu was already a Member of
Parliament, he could have avoided the
disqualification mentioned in Section 8(3)
of the Representation of People Act, 1951
for being chosen as a Member of
Parliament for a period of six years, if
after the conviction he had preferred an
appeal within three months of the date of
his
conviction.
Thereafter
his
disqualification would have been avoided
until the appeal or application was
disposed of by the Court. Sections 8(3)
920 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
and 8(4) of the Representation of People
Act may be usefully perused:

"8(3) A person convicted of any
offence and sentenced to imprisonment
for not less than two years (other than any
offence referred to in sub-section (1) or
sub-section (2) shall be disqualified from
the date of such conviction and shall
continue to be disqualified for a further
period of six years since his release.

8 (4)Notwithstanding any in sub-section
(1), sub-section (2) and sub-section (3) a
disqualification under either sub-section
shall not in the case of a person who on
the date of the conviction is a member of
Parliament or the Legislature of a State,
take effect until three months have
elapsed from that date or, if within that
period an appeal or application for
revision is brought in respect of the
conviction or the sentence, until that
appeal or application is disposed of by
the court."

22. However, on a moral ground the
appellant Navjot Singh Sidhu had chosen
to resign from his seat and thereafter he
wished to seek fresh elections. It was in
that background that the Apex Court had
noted that it was a fit case for suspending
the
conviction
although
the
Court
observed
that
the
power
to
stay
convictions can only be exercised in
exceptional
circumstances.
For
the
proposition that the said power is
exercised
in
most
exceptional
circumstances, reliance was placed in
Navjot Singh Sidhu's case on the cases of
Ravi Kant S. Patil Vs. Sarvabhouma S.
Bagali, JT 2006 (1) SC 578, State of
Tamil Nadu Vs. A. Jaganathan, JT 1996
(6) SC 621, K.C. Sareen Vs. CBI,
Chandigarh, JT 2001 (6) SC 59, B.R.
Kapur Vs. State of Tamil Nadu and
another, JT 2001 (8) SC 40 and State of
Maharashtra Vs. Gajanan and another,
JT 2003(10) SC 164. Whether failure to
stay the conviction will lead to injustice
and
irreversible
consequences
is
a
question
to
be
determined on the
particular facts of the case. In Navjot
Singh Sidhu's case observing how the
incident had taken place, as a result of a
sudden quarrel with the deceased and his
companion over a minor road incident and
where it was not even clear whether the
solitary head injury on the deceased was
the result of the fist blow of the appellant
or due to fall and whether the deceased
had died as a result of the abrasion
sustained by him or because of his heart
condition
and
whether
on
the
circumstance, a case under Section 304
Part-II IPC was at all disclosed. It was
after taking into account the overall
conspectus of circumstances, that the
Apex Court had stayed the conviction of
the appellant Navjot Singh Sidhu.

23. In Hikmat Ali Khan Vs. Ishwar
Prasad Arya, AIR 1997 SC 864, where an
an advocate had been convicted in a case
under Section 307 IPC for stabbing the
opponent in court with a knife, it was
described as an offence involved moral
turpitude
and
the
Supreme
Court
enhanced the punishment of removal from
rolls of the Bar Council awarded by the
U.P. Bar Council for three years for
permanently removing the name of the
said advocate from the rolls.

24. However, whether the present
offence involves a question of moral
turpitude or not so as to dis-entitle the
appellant-applicant from reinstatement is
a question, which will have to be gone
into and decided by the appropriate
3 All] Balwant V. State of U.P.
921
authority in the departmental proceedings
and it would be open to the applicantappellant Daya Shanker Rai to canvass
the said issue in Civil Misc. Writ Petition
No. 45958 of 2006 if he is so advised
against the order passed by the District
Inspector of Schools, Ghazipur whereby
the initial approval of the suspension had
been given by the DIOS although in the
said case the appellant was not given any
interim relief or in Writ Petition No.
46970 of 2006 whereby the withdrawal of
the suspension order by the DIOS dated
19.8.2006 had been stayed by the learned
Single Judge.

25. I, therefore, find that the
applicant-appellant has not been able to
make out any good ground for obtaining
an order suspending his conviction by the
judgement and order dated 9.3.2006. Of
course, it would be open to the appellantapplicant to move an application for
expediting the appeal.

26. With these observations, this
application is rejected.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.11.2007

BEFORE
THE HON'BLE AMAR SARAN, J.
THE HON'BLE VIJAY KUMAR VERMA, J.

Criminal Appeal No. 1840 of 1985

Balwant

...Appellant
Versus
State of U.P.

...Opposite Party

Counsel for the Applicant:
Sri R.P. Saxena
Sri K.K. Arora

Counsel for the Opposite Party:
Smt. Dr. Abida Sayed
A.G.A.

Code of Criminal Procedure-Section 313
(4)-readwith India Evidence Act-Section
106-Conviction without evidence-merely
on the basis of confession if prosecution
evidence
vague-and
insufficient-heldcan not be supplemented by statement
of accused.

Held: Para 13

We
have
given
our
thoughtful
consideration to the above mentioned
submissions made by learned amicus
curia.
We
find
force
in
these
submissions. As mentioned earlier also,
four
witnesses
namely
P.W.1
Imrat,P.W.2 Phool Singh, P.W. 3 Umrao
Singh and P.W. 4 Km. Shanti have been
examined by the prosecution in this case
as eye witnesses, but all these witnesses
have stated in their statements that they
did
not
see
the
accused
Balwant
committing murder of his wife. P.W.1
Imrat had lodged the FIR of this case. He
has stated that the report was lodged by
the village pradhan and on his saying, he
had put his thumb impression on the
report without hearing it. All these
witnesses have been declared hostile.
Barring
the
testimony
of
these
witnesses, there is no other substantive
incriminating evidence to establish the
complicity
of
the
appellant
in
the
incident of murder of his wife. Therefore,
in our considered view, in the absence of
any substantive incriminating evidence
to
establish
the
complicity
of
the
appellant Balwant in the incident of
murder of his wife, he cannot be
convicted merely on the basis of his
confessional statement recorded in the
examination under section 313 Cr. P. C.
This Court has held in the case of Omi @
Om Prakash vs. State of U.P. (supra) that
the statement by accused under section
313 Cr. P. C. is quite different from a
confessional
statement
made
under
section 164 Cr. P. C. The expression