IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 2296 of 2013 In CRIMINAL APPEAL NO. 1814 of 2012 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.R.UDHWANI ================================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
================================================================ ABDULKADAR @ KADARBAPU SAIYADHUSSEIN SAIYAD Applicant(s) Versus STATE OF GUJARAT Respondent(s) ================================================================ Appearance:
MR AY KOGJE, ADVOCATE for the Applicant(s) No. 1 Mr. L.B Dabhi Addl. PUBLIC PROSECUTOR for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI Date : 30/09/2013 ORAL JUDGMENT
1. Rule. Mr. L.B Dabhi learned Addl. Public Prosecutor waives service of rule on behalf of the respondentState.
2. The applicant who has been convicted for the offences punishable inter alia under section 306 read with section 147, 148, 149, 307 of the Indian Penal Code (for short the “IPC”), seeks suspension of conviction.
3. Against the applicant original accused no. 11 had filed Sessions case No. 19/12 which was renumbered from Special case No. 34/2004 upon Una being declared as Sessions Division.
4. The incident occurred on 13th November 2002. After the trial, the applicant amongst others was found guilty for the offences aforesaid and was inter alia sentenced to a terms of ten years with fine which is paid by the applicant.
5. The applicant was employed as a meter reader with the Gujarat Electricity Board. At the time of the incident in the year 2001, he was promoted as Junior Engineer. He had no criminal antecedents. On account of his involvement in a criminal case and a consequential detention for a period exceeding 48 hours, he came to be suspended but subsequently his suspension came to be revoked.
6. The judgment convicting him was delivered on 6th November 2012 and after a show cause notice for termination on the ground of his conviction, his services came to be terminated on 10th January 2013.
7. The learned counsel for the applicant would submit that the incident in question occurred in pursuance to the rioting resorted to by a mob comprising 500 to 600 persons belonging to crosssections of the society. They were found pelting stones as a consequence of which two police constables sustained minor injuries of abrasion and were treated as outdoor patients. It is argued that the applicant was not attributed with any overt act but was nabbed only on the basis of his presence in the mob. It is argued that his complicity of being a member of unlawful assembly was not established and at the most, his mere presence at the scene of offence was found.
8. It is also argued that, as a consequence of termination of his services, the applicant has suffered a loss of all retiral benefits, and on suspension of conviction, he would get a chance to make representation and convince the appointing authority for his reinstatement.
9. In support of his contention, learned counsel relied upon Navaniti Prasad Singh and Ashwani Kumar Singh (2012 Cr. L.J. 4363) and K. Subramanian Vs. The Inspector of Police SpecCBI/BS and FC Chennai (2012 Cri. L.J 1673.
10. Learned counsel has contended that at the relevant point of time, no prayer for suspension of the conviction was made, and therefore, the present application cannot be termed as successive application. It is therefore, urged to exercise the discretion by entertaining this application.
11. Vehemently opposing the application learned APP would contend that this being a successive application; in absence of changed circumstances, be rejected. In his submission, even in absence of the prayer for suspension of conviction, since Section 389 of the Code of Criminal Procedure (for short Cr. P.C) contemplates suspension of both ie the sentence and conviction, the previous application should be deemed to have been argued and rejected even for suspension of conviction.
12. Learned APP would submit that no special circumstances are shown to exist for the purpose of exercising discretion of suspending the conviction under section 389 of Cr.PC. The argument is that the applicant was charged with a serious offence under section 307 of the IPC, and the fact as to whether the applicant is guilty for the said offence read with other provisions aforesaid, can only be determined on appreciation of evidence and therefore this Court may not exercise the discretion. It is argued that the offence was so serious as the police had to resort to firing even as the mob was pelting stones and bottles. It is argued that the intention was apparent, and evidence of an individual role was not necessary under Sections 147, 148, 149, 307 of IPC. While distinguishing the authorities cited by learned counsel for the appellant, it was submitted that in both the cases, reliance was placed by the convict on expected benefit and in the instant case, since services of the applicant have already been terminated, the question of suspension of conviction does not arise.
13. Having given thoughtful consideration to the argument advanced by the parties, it needs to be enquired from the evidence on record, the exceptional circumstances if any, required for the purpose of exercising powers under section 389 read with section 482 of Criminal Procedure Code for suspension of conviction. Further, the question as to whether the present application is a successive application and if so whether the Court can entertain this application needs to be examined.
14. Section 389 of Cr.P.C confers the right upon applicant thus: (a) to apply for suspension of sentence and, (b) to apply for suspension of order. Further it is settled law that power to suspend the conviction is available to the High Court under section 482 of Cr.P.C. It is not as if both the aspects are so interwoven that one would include the application for other remedy by default. The applicant under the circumstances may be advised to apply for one or both. Therefore, it cannot be argued that in the event of grant or rejection of the application for suspension of the sentence, application for suspension of conviction also stands concluded.
15. It is necessary to look into the nature of offence and evidence as to complicity of the offender. Such evidence is not required to be appreciated at the stage of section 389 of Cr.PC. It has to be merely read on its face value to find out the complicity of the offender. The area of inquiry would be whether taking into consideration the established facts on its face value, all or any of the penal provisions are attracted or not. This exercise shall have to be done because the repercussions of conviction are very serious on the employment of a convict, if the rule permits its employer to terminate his employment on mere conviction. In the event of termination of his services the sufferer will not only be the employee but also his family. Therefore, if a patent wrong conviction is not suspended, the employee prospects will be a casualty.
16 Keeping in view the above principle, in the instant case endeavour of the Court would be to determine as to whether there are exceptional circumstances for exercise of the discretion under section 389 read with section 482 of Cr.PC.
17. Undisputedly the only evidence which is brought on record to establish the complicity of the applicant was the fact that he was found to be running after the police firing.
18. He amongst others was charged under Sections 307 read with sections 143, 147, 148, 149, 332 and 353 of the IPC. To invoke these provisions, it was obligatory upon the prosecution to establish necessary ingredients of the said provisions. Section 307 contemplates the punishment for attempt to murder and therefore an the ingredients necessary to establish culpable homicide must be writ large in the evidence. Except the fact that the applicant was found running after firing no other necessary ingredient as required to constitute offence under section 307 of IPC was brought on record. The argument however, is that as sections 143, 147, 148 having been invoked proof as to individual acts was not necessary. This argument could have found favour with the Court only if ingredients of sections 143, 147, 148 were writ large in evidence. Section 143 intends to punish a member of unlawful assembly. Section 141 contemplates unlawful assembly with complicity of five persons or more to achieve any of the common object specified in first, second,third, fourth, and fifth clause. Therefore, evidence expected was that the applicant approved a common object to overawe by criminal force, Central or any State Government, or Parliament or the legislature of any State or any public servant in the exercise of the lawful power of such public servant or to resist the execution of any law, or of any legal process; or to commit any mischief or criminal trespass, or other offence; or by means of criminal force,or show of criminal force, to any person, to take or obtain possession of any property etc,or to deprive any person to what he is not legally bound to do, or to omit to do what he is legally entitled to do.
19. At the best, clause second and third could have been invoked if such evidence was rendered. It is not the prosecution case that it was premeditated. Thus, it appears that suddenly, unruly mob comprising of different sections of society came out on the road and started rioting. When asked to disperse, the mob did not oblige and therefore, it can be said that member of the mob had common object of resisting the execution of law and committing the crime. But the prosecution came out with a clear case that the common object of the mob was to attempt to commit murder. When such was the specific case, evidence to that effect was absolutely indispensable. What was alleged is that the mob was pelting stones and bottles and the applicant was seen running after firing. A person may run after firing under various conditions like (a) he may be a culprit (b) he may be an on looker and to save himself may run. Therefore, no adverse inference can be drawn from the mere act of applicant’s running after firing. No evidence appears to have been adduced to show that he constituted unlawful assembly with a common object to attempt to commit murder. Thus, taking into consideration the prosecution case on its face value it is difficult to countenance the argument made by learned APP that a serious case against the applicant was made out.
20. The next contention by learned APP is that since the applicant is already dismissed, no useful purpose is going to be served by suspension of conviction. As to whether a convict would stand to benefit or not is totally irrelevant while considering the aspect of suspension of conviction. What is required to be determined is the complicity and a patent lack of evidence for suspension of conviction.
21. At this stage few instances; one before the Madras High Court and other before the Patna High court in Navaniti Prasad Singh and Ashwani Kumar Singh (2012 Cr. L.J. 4363) and in K. Subramanian Vs.
The Inspector of Police SpecCBI/BS and FC Chennai (2012 Cri. L.J 1673 are required to be referred to. In the first mentioned case, the Court, after taking into consideration the pros and cons, found exceptional circumstances and while relying upon Ramesh Narang Vs Rama Narang, (1995 Cri LJ 1685 ) held that the powers to suspend the conviction are available to under section 482 of Criminal Procedure Code.
22. The above mentioned circumstances were found to be appropriate circumstances by Patna High Court. Thus, this court is fortified in its view extensively expressed in this order and the judgments cannot be distinguished on the mere ground that it was dealing with ensuing employment benefit and not the deprivation of the benefit. Consequences in both cases will be the same in the event of nonsuspension of conviction inasmuch as in the first mentioned category person will not get the job at all and in another, will lose it and thus both will be without job.
In the above exceptional circumstances this Court deems it appropriate to exercise its discretion under section 389 read with section 482 of CRPC and orders suspension of conviction of the applicant. This application succeeds and is thus allowed. Rule is made absolute with no order as to costs.
mary (G.R.UDHWANI, J.)