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Smt. Pushpa Devi @ Rani vs State on 15 July, 2021

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Stay No. 417/2021

Smt. Pushpa Devi @ Rani D/o Sh. Sundar Singh Barad, Aged
About 59 Years, B/c Rajput, Midwife Govt. Medical Sub-Center,
Village Moras, Pindwara, At Present R/o Pindwara, Dist. Sirohi
(Raj.).

—-Petitioner
Versus
State, Through Pp

—-Respondent

For Petitioner(s) : Mr. Ratish Bhatnagar
For Respondent(s) : Mr. A.R. Choudhary, PP

HON’BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

15/07/2021

In wake of second surge in the COVID-19 cases, abundant

caution is being maintained, while hearing the matters in Court,

for the safety of all concerned.

Learned counsel for the petitioner has referred to the

judgment passed by Division Bench of this Hon’ble Court in the

matter of Balbir Singh Vs. State of Rajasthan rendered in

D.B. Criminal Misc. Stay Petition No.5252/2019 in D.B.

Criminal Appeal No.136/2019 decided on 05.09.2019,

relevant portion reads as under :-

“We have carefully gone through the judgments relied
upon by the learned counsel for both the sides. Division
Bench of this Court in Sushil and Anr. Vs. State of
Rajasthan cited above had rejected the application moved
by the applicant for suspension of his conviction holding

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that conviction could not be stayed on the ground that the
applicant would lose his livelihood.

However, in the present case, facts are different. So far
as applicant is concerned he was found innocent during
investigation and was summoned by the trial Court under
Section 193 Cr.P.C. Challan was presented against the
husband of the deceased under
Section 306 IPC and
thereafter, charges were framed against the accused
under
Section 304-B IPC and 498-A IPC and in alternative
under
Section 306 IPC. It has been pointed that applicant
does not have any criminal record. Applicant has been in
service of Department of Telecommunications for the last
35 years. However, now applicant has received notice
proposing punishment of dismissal on account of
conviction earned by him in the present case. Sentence of
the applicant has been suspended by this Court. In case,
conviction of the applicant is not stayed/suspended, he
might lose his job. It has been stated by the learned
counsel for the applicant that the applicant will retire in
July, 2020. Thus applicant is at the fag end of his career.
Keeping in view the facts and circumstances of the case,
we are of the opinion that it would be just and expedient
to stay/suspend the conviction of the applicant during the
pendency of the appeal. Judgment relied upon by the
learned counsel for the complainant fails to advance the
case of the complainant as it is based on different facts.
Accordingly, application is allowed. Conviction of the
applicant shall remain stayed/suspeneded during the
pendency of the appeal.”

Learned counsel for the petitioner has thereafter referred to

the judgment of this Court passed in the matter of Gopendra

Kumar Vs. State of Rajasthan (S.B. Criminal Misc. Stay

Application No.1585/2021 in S.B. Criminal Appeal

No.452/2021) decided on 05.03.2021. The order dated

05.03.2021 reads as under :-

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“Applicant has moved a criminal miscellaneous stay
application under
Section 482 Cr.P.C. in which he prayed
that the judgment of conviction order dated 22.02.2021
passed by learned Special Judge, Prevention of Children
From Sexual Offences Act, 2012 and Commission for
Protection of Child Right Act, 2005, Karauli in Sessions
Case No.136/2018 (135/2016) (126/2016) (CIS
No.136/2018) titled as State Vs. Gopendra Kumar be
stayed.

It is contended by counsel for the applicant that the
applicant is ticket collector in the Department of Railway.
If the conviction of the applicant is not stayed, enquiry will
be initiated against him and his services will be
terminated. So, the conviction order passed by the learned
Court below be stayed.

Counsel for the applicant has placed reliance on “Rama
Narang vs. Ramesh Narang” (1995) 2 SCC 513 and
Jagdish Prasad vs. State of Rajasthan” 2013 SCC onLine
Raj. 450, “
Bhagwan Singh vs. State” 2009 WLC 575,
Shivlal vs. State of Rajasthan” 2007 (3) RCC 1039,
Murarilal vs. State of Rajasthan Ors.” 2009 (2) WLC
345 and “
Navjot Singh Siddhu vs. State of Punjab” (2007)
2 SCC 574.

Learned Public Prosecutor has opposed the arguments
advanced by learned counsel for the applicant.
I have considered the contentions raised by counsel for
the parties.

Three Judges Bench of the Apex Court in “Rama Narang
Vs. Ramesh Narang” Case (Supra) held as under:-

“That takes us to the question whether the scope of
Section 389(1) of the Code extends to conferring power
on the Appellate Court to stay the operation of the order
of conviction. As stated earlier, if the order of conviction
is to result in some-disqualification of the type
mentioned in
Section 267 of the Companies Act ,we see
no reason why we should give a narrow meaning to
Section 389(1) of the Code to debar the court from
granting an order to that effect in a fit case. The appeal

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under Section 374 is essentially against the order of
conviction because the order of sentence is merely
consequential thereto; albeit even the order of sentence
can be independently challenged if it is harsh and
disproportionate to the established guilt. Therefore,
when an appeal is preferred under
Section 374 of the
Code the appeal is against both the conviction and
sentence and therefore, we see no reason to place a
narrow interpretation on
Section 389(1) of the Code not
to extend it to an order of conviction. Although that issue
in the instant case recedes to the background because
High Courts can exercise inherent jurisdiction under
Section 482 of the Code if the power was not to be
found in
Section 389(1) of the Code. We are, therefore,
of the opinion that the Division Bench of the High Court
of Bombay was not right in holding that the Delhi High
Court could not have exercised jurisdiction under
Section 482 of the Code if it was confronted with a
situation of there being no other provision in
the Code
for staying the operation of the order of conviction. In a
fit case if the High Court feels satisfied that the order of
conviction needs to be suspended or stayed so that the
convicted persons does not suffer from a certain
disqualification provided for in any other statute, it may
exercise the power because otherwise the damage done
cannot be undone; the disqualification incurred by
Section 267 of the Companies act and given effect to
cannot be undone at a subsequent date if the conviction
is set aside by the Appellate Court. But while granting a
stay of (sic or) suspension of the order of conviction the
Court must examine the pros and cons and if it feels
satisfied that a case is made out for grant of such an
order, it may do so and in so doing it may, if it considers
it appropriate, impose such conditions as are considered
appropriate to protect the interest of the shareholders
and the business of the company.”

In the present case, applicant has come with the specific
case that he wants to stay the conviction order passed by
the Court below against him because enquiry may be
initiated against him and his services are liable to be
terminated.

In “Jagdish Prasad Vs. State of Rajasthan” (supra) case,
there was conviction under
Section 306, 498A and the
appellant was working as LDC in the Education
Department and has since retired but was denied pension
on account of the conviction order. High Court directed

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that the judgment of conviction shall remain stayed
during pendency of the appeal.

I am of the view that once the consequences of
conviction are made known to the Court, the Court is
entitled to stay the conviction order.

Consequently, it is directed that the judgment of conviction
order dated 22.02.2021 passed by learned Special Judge,
Prevention of Children From Sexual Offences Act, 2012
and Commission for
Protection of Child Right Act, 2005,
Karauli, shall remain stayed till pendency of the appeal.”

Learned counsel for the petitioner submits that the present

petitioner has worked on the post of Midwife and has retired on

31.03.2021. It is also contended that the petitioner is a divorcee

lady and has no means of maintaining herself even after rendering

a prolonged government service on the post of Midwife.

Learned counsel for the petitioner submits that the benefits

have been withheld by the department on count of the sentence

having not been stayed. It is also contended that as a senior

citizen, the petitioner shall face extreme misery for a conviction,

which was not connected in any way with the department in

question. It is also contended that sentence of the petitioner has

already been suspended.

Learned Public Prosecutor opposes the petition.

On seeing the precedent law of Balbir Singh Vs. State of

Rajasthan (supra) and Gopendra Kumar Vs. State of Rajasthan

(supra) and also taking note of the fact that the petitioner has

rendered lifetime service to the medical department on the post of

Midwife and has now retired after otherwise a satisfactory service

in March, 2021 and is a divorcee, would not be able to maintain

herself, this Court is inclined to allow the stay petition.

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In view of the above, the misc. stay petition is allowed and it

is ordered that the during the pendency of the criminal revision

petition, the order of conviction dated 03.01.2017 passed by the

learned Judicial Magistrate, Pindwara in Criminal original case

No.658/2007 as well as passed by learned Additional Sessions

Judge No.2, Abu Road, Sirohi in Criminal Appeal No.1/2017; titled

as Smt. Pushpa Devi @ Rani Vs. State shall remain stayed.

(DR. PUSHPENDRA SINGH BHATI),J.

51-Sudheer/-

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