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IN THE SUPREME COURT OF INDIA

CRIMINAL  APPELLATE  JURISDICTION

CRIMINAL APPEAL NO. 1515 OF 2014     [Arising out of S.L.P. (Criminal) No.5654 of 2014 CRLMP No. 8191 of  

2014]

Shyam Narain Pandey … Appellant (s)   

Versus

State of U.P. … Respondent (s)

J U D G M E N T  

KURIAN, J.:   

Delay condoned.

2. Leave granted.

3. Scope of stay of conviction under Section 389(1) of the Code of  

Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.PC’), is the  

subject matter of this appeal.  

4. Appellant  was  tried  along  with  six  others  by  the  Court  of  

Additional  Sessions  Judge,  Azamgarh,  Uttar  Pradesh.  He  was  

convicted  under  Sections  147,  148,  302/144  of  the  Indian  Penal  

Code (45 of 1860) (hereinafter referred to as ‘IPC’) read with Section  

120B IPC with life imprisonment and fine. He was granted bail by  

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order  dated  29.08.2012  by  the  High  Court  of  Judicature  at  

Allahabad. Thereafter, the appellant filed an application for staying  

the judgment of conviction which was dismissed by the impugned  

order dated 07.08.2013.

5. By a separate order, we have cancelled the bail granted to the  

appellant  in  view  of  non-compliance  of  first  proviso  to  Section  

389(1) Cr.PC and the matter has been remitted to the High Court for  

fresh  consideration.  Be  that  as  it  may,  the  High  Court  has  

considered  in  detail  the  application  made  by  the  petitioner  for  

staying  the  conviction  and  has  declined  the  relief.  It  is  the  

contention  of  the  learned  counsel  for  the  appellant  that  he  is  

innocent. He has been working as a Principal and if the conviction is  

not stayed, he will lose his job, will be denied of his livelihood and  

he would not be in a position to participate in subsequent selection  

procedures  conducted  by  the  U.P.  Secondary  Education  Services  

Selection Board, Allahabad.   

6.  We are afraid none of these contentions can be appreciated.  

The appellant has been convicted under Sections 147, 148, 302/144  

IPC read with Section 120B IPC and is sentenced to undergo life  

imprisonment.   

7. ‘Convict’ means declared to be guilty of criminal offence by  

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the verdict of court of law. That declaration is made after the court  

finds him guilty of the charges which have been proved against him.  

Thus, in effect, if one prays for stay of conviction, he is asking for  

stay of operation of the effects of the declaration of being guilty.

8. It has been consistently held by this Court that unless there  

are exceptional  circumstances,  the appellate court  shall  not  stay  

the conviction, though the sentence may be suspended. There is no  

hard and fast rule or guidelines as to what are those exceptional  

circumstances. However, there are certain indications in the Code of  

Criminal Procedure, 1973 itself as to which are those situations and  

a few indications are available in the judgments of this Court as to  

what are those circumstances.

9. It  may  be  noticed  that  even  for  the  suspension  of  the  

sentence,  the  court  has  to  record  the  reasons  in  writing  under  

Section 389(1) Cr.PC. Couple of provisos were added under Section  

389(1) Cr.PC pursuant to the recommendations made by the Law  

Commission  of  India  and  observations  of  this  Court  in  various  

judgments, as per Act 25 of 2005. It was regarding the release on  

bail of a convict where the sentence is of death or life imprisonment  

or  of  a  period  not  less  than ten  years.  If  the  appellate  court  is  

inclined to consider release of a convict of such offences, the public  

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prosecutor  has  to  be given  an opportunity  for  showing cause in  

writing against  such release.  This  is  also an indication as to  the  

seriousness of such offences and circumspection which the court  

should have while passing the order on stay of conviction. Similar is  

the case with offences involving moral turpitude. If the convict is  

involved  in  crimes  which  are  so  outrageous  and  yet  beyond  

suspension of sentence, if  the conviction also is stayed,  it  would  

have  serious  impact  on  the  public  perception  on  the  integrity  

institution. Such orders definitely will shake the public confidence in  

judiciary. That is why, it has been cautioned time and again that the  

court should be very wary in staying the conviction especially in the  

types of cases referred to above and it shall be done only in very  

rare  and  exceptional  cases  of  irreparable  injury  coupled  with  

irreversible consequences resulting in injustice.

10. In  Ravikant  S.  Patil  v.  Sarvabhabhouma  S.  Bagali1,  a  

three-Judge Bench of this Court has held that the power to stay the  

conviction  …  “should  be  exercised  only  in  exceptional  

circumstances where failure to stay the conviction would lead to  

injustice and irreversible consequences”. In Navjot Singh Sidhu v.  

State of Punjab and another2,  following Ravikant S. Patil case  

(supra), at paragraph-6, this Court held as follows: 1  (2007) 1 SCC 673 2  (2007) 2 SCC 574

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“6. The  legal  position  is,  therefore,  clear  that  an  appellate  court  can  suspend  or  grant  stay  of  order  of  conviction. But the person seeking stay of conviction should  specifically draw the attention of the appellate court to the  consequences that may arise if the conviction is not stayed.  Unless the attention of the court is  drawn to the specific  consequences  that  would  follow  on  account  of  the  conviction, the person convicted cannot obtain an order of  stay of conviction. Further, grant of stay of conviction can  be resorted to  in  rare cases depending upon the  special  facts of the case.”

11. In  State  of  Maharashtra  through CBI,  Anti  Corruption  

Branch, Mumbai v. Balakrishna Dattatrya Kumbhar3, referring  

also  to  the  two  decisions  cited  above,  it  has  been  held  at  

paragraph-15 that:

“15. …the appellate court in an exceptional case, may  put the conviction in abeyance along with the sentence, but  such  power  must  be  exercised  with  great  circumspection  and caution, for the purpose of which, the applicant must  satisfy the court as regards the evil that is likely to befall  him, if the said conviction is not suspended. The court has  to consider all the facts as are pleaded by the applicant, in a  judicious  manner  and  examine  whether  the  facts  and  circumstances  involved  in  the  case  are  such,  that  they  warrant such a course of action by it. The court additionally,  must record in writing, its reasons for granting such relief.  Relief of staying the order of conviction cannot be granted  only on the ground that an employee may lose his job, if the  same is not done.”

12. In  State of  Maharashtra v.  Gajanan and another4,  and  

Union of India v.  Atar  Singh and another5,  cases under  the  3  2012(12) SCC 384 4  (2003) 12 SCC 432 5  (2003) 12 SCC 434

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Prevention  of  Corruption  Act,  1988,  this  court  had  to  deal  with  

specific situation of loss of job and it has been held that it is not one  

of exceptional cases for staying the conviction.

13. In the light of the principles stated above, the contention that  

the  appellant  will  be  deprived  of  his  source  of  livelihood  if  the  

conviction is not stayed cannot be appreciated. For the appellant, it  

is  a  matter  of  deprivation  of  livelihood  but  he  is  convicted  for  

deprivation of life of another person. Until he is otherwise declared  

innocent in appeal, the stain stands.  The High Court has discussed  

in detail the background of the appellant, the nature of the crime,  

manner in which it was committed, etc. and has rightly held that it  

is not a very rare and exceptional case for staying the conviction.  

14. We do not, thus, find any merit in the appeal and the same is  

accordingly  dismissed.  However,  we  make  it  clear  that  the  

observations in this judgment are only for the purpose of this order  

and they shall have no bearing while hearing the appeal.  

                                                   ..………….……….J.                                                  (M.Y. EQBAL)

                                                    ……….………...…J.       (KURIAN JOSEPH)

New Delhi; July 22, 2014.  

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