Umeswaran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **THURSDAY, THE 19TH DAY OF JUNE 2014/29TH JYAISHTA, 1936** ## **Crl.MC.No. 3185 of 2014 (D)** **--------------------------------------[CRL.M.P.NO.1198/2014 IN CRL.APPEAL NO.262/2014 ON THE FILES OF THE SESSIONS COURT, ERNAKULAM]** **..........** **PETITIONER/ACCUSED: ----------------------------------** **UMESWARAN, AGED 57 YEARS, S/O.KESAVAN, PARASSERIL VEEDU, KANDANAD KARA, MANAKUNNAM VILLAGE.** **BY ADVS.SRI.M.S.UNNIKRISHNAN, SMT.JAYASREE MANOJ, SRI.JITHIN PAUL VARGHESE, SRI.K.SUNIL.** ## **RESPONDENT/COMPLAINANT:** **--------------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031.** ## **BY PUBLIC PROSECUTOR SMT. SAREENA GEORGE.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19-06-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Prv.** **CRL.M.C. NO.3185/2014 - D:** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNX.A : TRUE COPY OF JUDGMENT DATED 13-5-2014 IN CC NO.1073 OF 2007 ON THE FILES OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT ERNAKULAM.** **ANNX.B : TRUE COPY OF CRIMINAL APPEAL NO.262 OF 2014 ON THE FILES OF SESSIONS COURT, ERNAKULAM. ANNX.C : TRUE COPY OF CRL.M.P.NO.1198 OF 2014 IN CRL.APPEAL NO.262 OF 2014 ON THE FILES OF SESSIONS COURT, ERNAKULAM. ANNX.D : TRUE COPY OF THE ORDER DATED 28TH DAY MAY 2014 IN CRL.M.P.NO.1198 OF 2014 IN CRL.APPEAL NO.262 OF 2014 ON THE FILES OF SESSIONS COURT, ERNAKULAM.** **ANNX.E : TRUE COPY OF THE ORDER IN CRL.M.C. NO.2896 OF 2014 OF THIS COURT.** **ANNX.F : TRUE COPY OF THE LETTER SUBMITTED BY THE PETITIONER TO THE CHAIRMAN COCONUT DEVELOPMENT BOARD, KOCHI. ANNX.G : TRUE COPY OF ORDER IN CRL.M.P.NO.1198 OF 2014 DATED 10-6-2014.** ## **RESPONDENT'S ANNEXURES: NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE.** **Prv.** ## **K. RAMAKRISHNAN, J.** ................................................. Crl.M.C.No.3185 of 2014 .................................................. Dated this the 19[th] day of June, 2014. ## **O R D E R** This Criminal Miscellaneous Case is filed by the petitioner challenging the order passed in Crl.M.P.No.1198/2014 in Crl.A.No.262/2014 on the file of the Sessions Court, Ernakulam declining to suspend the conviction under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code'). 2. It is alleged in the petition that petitioner is arrayed as an accused in C.C.No.1073/2007 on the file of the Additional Chief Judicial Magistrate Court, Ernakulam and he was convicted and sentenced by that court for the offences under Sections 341, 323, 325 and 506(1) of the Indian Penal Code. He preferred Crl.A.No.262/2014 against the same before the Sessions Court, Ernakulam and along with the same he filed Annexure-C petition to suspend the conviction and sentence. But earlier the Sessions Judge suspended the sentence alone. Against the same, he filed Crl.M.C.No.2896/2014 before this Court and this Court disposed of that petition directing the learned Sessions Judge to consider that prayer also and pass Crl.M.C.No.3185 of 2014 2 a speaking order on the same and the learned Sessions Judge by the impugned Annexure-G order declined to suspend the conviction. Aggrieved by the same, the present petition has been filed by the petitioner challenging the order under Section 482 of the Code . 3. Heard the counsel for the petitioner and the learned Public Prosecutor. 4. The counsel for the petitioner submitted that the petitioner is working as a driver in Coconut Development Board and in view of the conviction on account of Service Rules, there is a possibility of removal of service from the department at the instance of PW1 in this case. So unless the conviction is suspended, he will be put to serious hardship. Further, the decisions have not been correctly appreciated by the learned Sessions Judge. 5. The petition was opposed by the Public Prosecutor on the ground that suspension of conviction can be made by the court only in rarest of rare cases and it cannot be taken lightly. 6. It is an admitted fact that the petitioner was the sole accused in C.C.No.1073/2007 on the file of the Additional Crl.M.C.No.3185 of 2014 3 Chief Judicial Magistrate Court, Ernakulam and he faced trial for the offences under Sections 341, 323, 325 and 506 (1) of the Indian Penal Code. After trial, he was found guilty for the above offences and he was also sentenced for the same. He filed Crl.A.No.262/2014 before the Sessions Court, Ernakulam and also moved Crl.M.P.No.1198/2014 for suspension of conviction and sentence and in that he had specifically mentioned that he is working as a driver in Coconut Development Board and PW1, who is the de facto complaint, also informed the Chairman of the Board about the passing of the judgment against the petitioner and the petitioner apprehends that on that basis he is likely to be suspended. But, earlier the learned Sessions Judge without considering the entire prayer only mechanically suspended the sentence portion alone and that was challenged by the petitioner by filing Crl.M.C.No.2896/2014 before this Court and this Court by Annexure-E order directed the Sessions Judge to consider that aspect also and pass a speaking order and thereafter it was again heard and the learned Sessions Judge after relying on the decisions reported in **Rama Narang v. Ramesh Narang** (1995 (2) SCC 513), **Navjot Singh Sidhu v. State of Punjab &** 4 Crl.M.C.No.3185 of 2014 **another** (AIR 2007 SC 1003) and **Peeru Muhammed v. State of Kerala** (2009 (3) KLT 397) came to a conclusion that there is no circumstance made out in the petition for exercising that discretion to suspend the conviction and refused that prayer. 7. Admittedly it was specifically mentioned in the petition that petitioner is working as a driver in Coconut Development Board and also mentioned that on account of enmical attitude of PW1 in the case, he had communicated the judgment to the Chairman of the Board and he is about to take action on that basis. Further, as per the Service Rules also, if there is conviction, unless the conviction is suspended, the appointing authority can take action against the employee and even to remove him from service. So, under the circumstances, it cannot be said that it is not a rarest of rare case where the power to suspend conviction has to be exercised by the court. Even in the decisions relied on by the court below, the courts including the Apex court has held that in appropriate cases and in rarest of rare cases, the court can exercise the power under Section 389 of the Code to suspend the conviction during the pendency of the appeal. In this case, the petitioner is now facing threat of suspension on the basis as it was specifically mentioned in the Crl.M.C.No.3185 of 2014 5 petition that PW1already informed the appointing authority about the conviction and the petitioner apprehends that action will follow on the same. Ultimately if it is ended in acquittal, once he is terminated from service, acquittal will not give him any benefit of reinstatement in service. Further there is no case for the prosecution that petitioner is a habitual offender as well. So, under the circumstances, this Court feels that it is a fit case where the Sessions Judge ought to have exercised his discretion in suspending the conviction as well especially he had admitted the appeal. So the order of the Sessions Judge declining to grant suspension of conviction is set aside and this petition is allowed and the conviction entered by the court below against the petitioner in C.C.No.1073/2007 on the file of the Additional Chief Judicial Magistrate Court, Ernakulam is suspended pending disposal of the appeal on the same conditions of which the sentence has been suspended by the court below. With the above directions, the petition is allowed. ## Sd/- **K. RAMAKRISHNAN, JUDGE.** /true copy/ P.S to Judge **cl** Crl.M.C.No.3185 of 2014 6