# Santosh Kumar v. State of U.P

- **Citation:** (2011) 2 ILRA 814
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-07-12
- **Bench:** Rajiv Sharma, S.C. Chaurasia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/santosh-kumar-v-state-of-u-p-41957
- **Pages:** 3

## Headnote

Code of Criminal Procedure-Section-389suspension
of
conviction-on
ground
compassionate
appointment
deniedbecause of conviction-although appeal
against
conviction-although
appeal
against
conviction
U/S
302/32
IPC
already admitted and bail granted-held
there can be automatic suspension of
conviction
on
grant
of
bail
unless
soundful reason recorded-case of Navjot
Siddhu Singh case quite distinguishableno good ground for suspension made
out.

Held: Para 11

There is a distinction between bail and
suspension of sentence. One of the
essential ingredients of Section 389 is
the requirement for the appellate Court
to record reasons in writing for ordering
suspension of execution of the sentence
or
order
appealed.
If
he
is
in
confinement, the said court can direct
that he be released on bail or on his own
bond. The requirement of recording
reasons in writing clearly indicates that
there has to be careful consideration of
the relevant aspects and the order
directing suspension of sentence and
grant of bail should not be passed as a
matter of routine.
Case law discussed:
[2007 Crl.L.J. 1427]; [2009 (2) SCC (Cri.)
920]; [(2001) 6 SCC 584]; [(2004) 6 SCC 175]

## Text

814 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.07.2011

BEFORE
THE HON'BLE RAJIV SHARMA, J.
THE HON'BLE S.C. CHAURASIA, J.

Criminal Appeal No. - 836 of 2006

Santosh Kumar

 ...Petitioner
Versus
State of U.P.

 ...Respondent

Counsel for the Petitioner:
Sri Nagendra Mohan

Counsel for the Respondent:
Govt. Advocate
Sri Rajesh Pandey

Code of Criminal Procedure-Section-389suspension
of
conviction-on
ground
compassionate
appointment
deniedbecause of conviction-although appeal
against
conviction-although
appeal
against
conviction
U/S
302/32
IPC
already admitted and bail granted-held
there can be automatic suspension of
conviction
on
grant
of
bail
unless
soundful reason recorded-case of Navjot
Siddhu Singh case quite distinguishableno good ground for suspension made
out.

Held: Para 11

There is a distinction between bail and
suspension of sentence. One of the
essential ingredients of Section 389 is
the requirement for the appellate Court
to record reasons in writing for ordering
suspension of execution of the sentence
or
order
appealed.
If
he
is
in
confinement, the said court can direct
that he be released on bail or on his own
bond. The requirement of recording
reasons in writing clearly indicates that
there has to be careful consideration of
the relevant aspects and the order
directing suspension of sentence and
grant of bail should not be passed as a
matter of routine.
Case law discussed:
[2007 Crl.L.J. 1427]; [2009 (2) SCC (Cri.)
920]; [(2001) 6 SCC 584]; [(2004) 6 SCC 175]

(Delivered by Hon'ble Rajiv Sharma,J.)

1. Heard Mr.R.N.S. Chauhan,
learned Counsel for the applicant and Mr.
Umesh
Verma,
learned
Additional
Government Advocate.

2. The applicant-appellant has been
convicted under Sections 302/34 IPC and
sentenced to imprisonment for life and a
fine of Rs.10,000/- vide judgment and
order
dated
29.4.2006.
A
default
stipulation has also been mentioned
therein.

3. On an appeal being preferred,
under
Section
374
(2)
CrPC,
an
application for releasing the appellant,
during the pendency of appeal, on bail
was filed. The said application for grant
of bail was considered and the bail was
granted and in pursuance of the said order
dated 3.5.2006, the appellant was released
on furnishing bail bonds as directed by
this Court.

4. Subsequently, the appellant's
father while, working in the Prayogshala
Sahayak (Prani Vigynan Vibhag) at MLK
(PG)
College,
Balrampur,
died
on
15.2.2010 and as such, he moved an
application for appointment under the
provisions of Dying-in-Harness Rules,
1974 on 6.4.2010, on which the mother
and younger brother of appellant endorsed
that they have no objection in case the
appellant is appointed in place of his
father under the aforesaid Rules. The said
application
was
considered
by
the
Appointing Authority, i.e. Principal of the
2 All] Santosh Kumar V. State of U.P.
815
College
and
he
was
not
offered
appointment inter alia on the ground that
he was convicted in Sessions Trial against
which an appeal is pending adjudication
in this Court and as such, the instant
application has been preferred by him for
suspending the conviction and sentence
under Section 389 CrPc.

5. Mr. R.N.S.Chauhan, learned
counsel for the applicant submits that
after the death of his father, there is no
one in the family to earn livelihood
which comprises himself, his younger
brother and mother and as such, he prays
that the conviction and sentence, during
pendency of appeal, may be suspended. In
support of his submissions, learned
counsel has relied upon the judgment of
Hon'ble Apex Court in the case of Navjot
Singh Sidhu v. State of Punjab and
another [2007 Crl.L.J. 1427], whereby
the Apex Court has suspended the
conviction of the appellant.

6. With regard to suspension of
conviction, Mr. Umesh Verma, learned
Additional Government Advocate states
that it is in the rarest of rare cases,
conviction can be suspended, if there is
any perversity recorded in the judgment
of the Sessions Court while trying the said
trial and passing the conviction order.

7. The only ground as shown by the
appellant does not appeal to us as the
appellant himself stated that in the family,
there is widowed mother and the younger
brother. That being so, they can claim
appointment and the appellant cannot
insist that he alone can be considered for
appointment under the Dying-in-Harness
Rules.

8. In case, the appellant could not be
appointed in place of his father, due to
some legal impediment, his younger
brother can be considered, if he is
otherwise eligible for appointment under
Dying-in-Harness Rules and as such, the
ground for suspending the conviction is
not satisfactory. Even otherwise, on
perusal of the provisions of 389 CrPC it
reveals that if any person has been
released on bail, sentence automatically
remains
suspended,
as
there
is
a
mandatory provision to the said effect.

9. As regards the applicability of the
Navjot Singh Sidhu's case, we may
observe that the facts of the present case
are clearly distinguishable as in that case
the trial Court has acquitted the accused
and the High Court, in reversal, found the
accused
guilty.
It
was
in
those
circumstances that the Apex Court
granted the stay of order of conviction
and sentence in that case.

10. In Sanjay Dutt v. State of
Maharasthra [2009 (2) SCC (Cri.) 920],
the Apex Court held that the power of the
Court under Section 389 CrPC shall be
exercised
only
under
exceptional
circumstances.

In K.C. Sareen v. CBI Chandigarh
[(2001) 6 SCC 584], the Apex Court
noted as under:-

"11. The legal position, therefore, is
this: though the power to suspend an
order of conviction, apart from the order
of sentence, is not alien to Section 389 (1)
of the Code, its exercise should be limited
to very exceptional cases. Merely because
the convicted person files an appeal in
challenge of the conviction the court
should not suspend the operation of the
816 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
order of conviction. The court has a duty
to look at all aspects including the
ramifications of keeping such conviction
in abeyance. It is in the light of the above
legal position that we have to examine the
question as to what should be the position
when a public servant is convicted of an
offence under the PC Act. No doubt when
the appellate Court admits the appeal filed
in challenge of the conviction and
sentence for the offence under the PC 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 PC Act, dehors the
sentence of imprisonment as a sequel
thereto, is a different matter."

11. In the case of State of Haryana
v. Hasmat [(2004) 6 SCC 175], the Apex
Court observed that Section 389 of the
Code deals with suspension of execution
of sentence pending the appeal and
release of the appellant on bail. There is a
distinction between bail and suspension of
sentence. One of the essential ingredients
of Section 389 is the requirement for the
appellate Court to record reasons in
writing
for
ordering
suspension
of
execution of the sentence or order
appealed. If he is in confinement, the said
court can direct that he be released on bail
or on his own bond. The requirement of
recording reasons in writing clearly
indicates that there has to be careful
consideration of the relevant aspects and
the order directing suspension of sentence
and grant of bail should not be passed as a
matter of routine.

12. Above being propositions, we
find no good ground to suspend/stay the
conviction
of
the
appellant.
The
application is hereby rejected.

13. As the appeal is of 2006,
Registry is directed to prepare the
paperbook within six months, if the same
has not yet been prepared.

14. List the appeal in the first half of
next year.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.07.2011

BEFORE
THE HON'BLE SATYA POOT MEHROTRA,J.
THE HON'BLE PANKAJ MITHAL,J.

Civil Misc. Writ Petition No. 1417 of 2006

Union of India and others ...Petitioners
Versus
Avanindra Kumar Tiwari and another

 ...Respondents

Counsel for the Petitioner:
Sri K.C. Sinha (Asst. Solicitor General of
India)
Sri Rakesh Sinha (for Union of India)

Counsel for the Respondents:
Sri B.P. Srivastava,
Sri K.P. Agarwal
Ms. Ghazalala Bano Quadri
C.S.C.

Constitution
of
India-Article
226Criminal and departmental proceedings
on
same
allegation
initiated-fair
acquittal in criminal case-can not be
basis
to
dropped
the
disciplinary
proceeding-dismissal order set-a-side by
Tribunal on grounds-No second Show
Cause
Notice
as
well
as
without
consideration-in Capt. M. Paul Anthony