Suspension of sentence and conviction are both remedies available to a person while an appeal is pending in the court of law and no final judgement has been obtained. Interestingly, section 389 of the Code of Criminal Procedure provides suspension of sentence as a statutory remedy. However, neither section 389 nor any other section of Cr.P.C makes an explicit mention of suspension of conviction as a statutory remedy. So, does this imply that there exist no such relief as stay on order of conviction.

Since inception law has evolved itself in such a fashion whereby the entire human race lives by the conduct and procedure established by it. This evolution is a byproduct of the minute details that legal statues and provisions encompasses to present law in its purest form. One cannot undermine the fact that attention to these details serves as a fundamental to study and scrutinize the foundation of law. In cases, where these details are not contemplated properly then it consequently results in complexities pertaining to the interpretation of law. Thus, to eliminate such intricacies, the Indian legal system, either by way of precedents or by exhausting legislative frameworks, has been prudent enough to bring necessary elucidations and amends whenever it is required. This article is in furtherance to provide an analysis on one such issue of law in relation to the order of stay on conviction and to evaluate on its current legal standing with relevant case laws.

SECTION 389 OF THE CODE OF CRIMINAL PROCEDURE-

When the trial is concluded, the accused person is either convicted or acquitted. Now, if the accused is convicted by the lower court, the presumption of his innocence comes to an end. The conviction operates and the accused has to undergo sentence. Upon which an appeal can be preferred in the appellate court. In case, where the sentence of punishment is pronounced and the appeal is pending the convict can approach the court for suspending the sentence of punishment decreed against him.

The Code of Criminal Procedure establishes the Appellate Court and entitles them with the necessary powers to review or rehear the matters which are already disposed of by the subordinate courts. Accordingly, via Section 389 of Cr.P.C the appellate court has the power to direct the suspension of the sentence of an accused pending the appeal and also to release the appellate on bail based on the nature of offence and facts and circumstances of each case. It states that- «Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail1»

On a meticulous reading, it is clear that there is no explicit mention about the power of the Hon’ble courts in relation to suspension of conviction. This gives rise to three significant questions-

1. 1. Whether is there any distinction between suspension of sentence and sentence of conviction?
2. 2. In a case where if someone’s sentence has been suspended, then will it subsequently imply that there is a temporary stay on his conviction as well?
3. 3. Further, in the absence of a separate legal provision for suspension of conviction, whether or not the Appellate Court has the jurisdiction to entertain and decide over the matters seeking relief for the same?
4. Development of the concept of Suspension as a relief-
5. The foundation of the Indian Legal System lies in the core principle of the «Presumption of Innocence.» This signifies that any individual accused of a criminal offense is entitled to be regarded as innocent until proven guilty through a lawful process. As a result, the Indian criminal justice system is prominently inclined towards adopting perspectives that assist the accused in substantiating their innocence, rather than embracing viewpoints that stand against them.
6. The modern-day concept of suspended sentence was introduced in Belgium in 18882 which was later on incorporated in some jurisdictions by the judiciary of Ireland, United States, Denmark etc., in the early 1900s3. The Indian legislation has incorporated this concept from the English law.
7. A. DIFFERENCE BETWEEN THE ORDER OF SUSPENSION OF SENTENCE AND ORDER OF SUSPENSION OF CONVICTION-
8. Suspension is an act of temporarily preventing something from operating or being in force. It is an act of keeping the sentence in abeyance at the pleasure of the person who is authorised to suspend the sentence4. Conviction and sentence, although often associated with each other, are two entirely different things. Conviction can be defined as the decision of the judge declaring someone as guilty of an offence. Accordingly, in effect, if one prays for a stay of conviction, he is asking for a stay of operation of the effects of the declaration of being guilty5. On the other hand, sentence is a form of punishment whereby the accused has to undergo either imprisonment, fine or punishment for the offence committed by him/her. Additionally, it is upon the discretion of the court to entirely suspend the sentence or just a part of it whereas the conviction cannot be partially suspended. Thus, it can be established that the order of sentence is always subsequent to the order of conviction and the suspension of the execution of the sentence does not alter or affect the fact that the offender has been convicted of an offence and has attracted the sentence of imprisonment.6
9. Consequence of stay in order of sentence –
10. When the order of sentence is stayed by the court, then that particular order will not be operative for an indefinite time. That is, there is no particular time period assigned for this relief as in the case of reprieve of sentence where temporary relief is provided to the convict by postponing the judgement of the court for a certain period of time.
11. Consequence of stay in order of Conviction–
12. The order of stay on conviction does not make the conviction non-existent, but only non-operative. That is, by staying the order of sentence the presumption of guilt does not come to an end. Therefore, It is clear that an order of suspension of sentence is not equivalent to an order of suspension of conviction and that these two reliefs operate in different fields. In circumstances, where the sentence passed against the petitioner is suspended, he must not be held entitled to seek suspension of the order of conviction either. On the contrary, it may be pointed out that when the order of conviction is suspended, the accused cannot remain behind the bar and has to be released either on bail or on his own bond. Consequently, when an order of conviction is suspended, the order of sentence has to be suspended. In other words, an order suspending conviction will, eventually, lead to an order of suspension of sentence7.
13. JURISDICTION OF THE APPEALTE COURT TO STAY THE ORDER OF CONVICTION-
14. The Apex Court, through its various judgements and precedents, has settled the position of law with respect to stay on the order of conviction. Accordingly, the appellate Court, while exercising its powers under section 389(1) of Cr.P.C, can suspend the order of conviction. In the case of Ram Narang V. Ram Nrang8 a 3-judge bench of the Supreme Court for the first time recognized the authority of the appellate court to suspend conviction. The court was of the opinion– «that there is no reason to give a narrow interpretation on Section 389(1) of the code and to not extend it to an order of conviction in a fit case.» A wide interpretation was given to section 389(1) wherein the power of the court to stay the order of conviction was acknowledged. Correspondingly, it was highlighted that the expression «order appealed against» in section 389(1) means the order of conviction9. Thus, section 389(1) does not only provide relief against order of sentence and bail but also encompasses stay on the order of conviction.
15. Further, it was observed that even if it is considered that the Code of Criminal Procedure 1973, does not provide the High Court with the power of staying the order of conviction under section 389(1) then the same can be exercised by the High Court in its inherent jurisdiction under section 482 of the code10. Section 482 provides the High Court with inherent jurisdiction to make orders as may be necessary to prevent abuse of process of court and to secure justice.

WHAT CONSTITUTES TO BE A FIT CASE FOR SUSPENSION ON ORDER OF CONVICTION?

Suspension of conviction is a «relief» and not a «right» by the law. Although the Apex Court has widened the scope of Section 389, it has also time and again suggested that the appellate court should always maintain caution while exercising its jurisdiction or providing relief under this section. The supreme Court also clarified that an order granting a stay of conviction is not the rule but is an exception to be resorted to in rare cases depending upon the facts of a case11. Till now the Apex Court has not specifically laid down any set of guidelines or tests to determine as to what will constitute a fit case for providing a relief under this section. However, from its innumerable judgements on this subject matter certain essentials can be listed down that can be considered by the courts while staying the order of conviction.

1. 1. Rare And Exceptional Cases and irreversible damages- Precisely from the acknowledgement of this relief, both the Supreme Court and the High Court have time and again expressed through their judgements that the power of the court to stay the order conviction should be used in exceptional circumstances only12. Such rare and exceptional circumstances can vary from case to case and «no straight jacket formula» can be evolved. Thus, a prima facie case coupled with peculiar or special circumstances involved may place the case in exceptional or extra ordinary category when entailment of specific consequences is shown.13It was also observed that to constitute a fit case for this relief, specific attention of the appellate court should be drawn to the consequences that may arise if the conviction is not suspended.14 Basically, the court should make a comparative analysis and see in whose favour the balance of convenience lies that is the consequences of withholding the relief against the consequences of granting it. To summarize it we can state that the court can only provide relief of this nature in a case where if the conviction is not stayed then it will lead to injustice and irreversible consequence to the convict against the harm that can be caused to the opposite party.15
2. 2. Seriousness of offence or offence of moral turpitude- The gravity of the offence and the impact that it can cause to the society and people in general plays a significant role while providing such a relief. It was observed in the case of Shyam Narain Pandey Vs. State of Uttar16- «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 a serious impact on the public perception on the integrity of this institution and such orders definitely will shake the public confidence in judiciary.» Although the expressions moral turpitude or seriousness of the offence is not defined under any law, the Supreme Court interpreted them as an expression which is used in legal and societal parlance to describe a conduct which is inherently base, vile, depraved or having any connection showing depravity17.
3. 3. Criminal antecedents of the accused will be a relevant consideration – The criminal history of the accused and the nature of offences committed by him over a period of time is to be noted. It was held that the criminal antecedents of the accused is not only a necessary requirement for staying the order conviction but also for staying the order of suspension18.
4. Analysis Rahul Gandhi Case-
5. Recently, Rahul Gandhi filed a criminal revision application before the Hon’ble High Court of Gujrat praying to stay the order of conviction against him. He was convicted for the offence punishable as defamation under the provisions of IPC, 1860. In the same case, Gandhi was also sentenced for two years of imprisonment for which he obtained an order for suspension of sentence by the Surat Sessions Court until the disposal of his appeal. So, if the Session Court has already suspended the sentence than, why did Rahul Gandhi have to sort for another order for suspension of conviction?
6. Essentially because Section 8(3) of the Representation of People’s Act which provides that- «A person convicted of any offence and sentenced to imprisonment for not less than two years, shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release»
7. Therefore, even when Gandhi’s sentence order was suspended, he was still not allowed to contest for election and to hold his office as a Member of Parliament as his conviction continued to operate and he was considered as an offender before the eyes of law. Thus, to prevent is disqualification and to meet the eligibility criteria mentioned under section 8(3) of the RPA, Rahul Gandhi sorted for a stay order on his conviction. He argued that by not staying the order of his conviction damages of irreversible nature will be befalling on him as not only his democratic right to continue his constituency are curtailed but also, he is denied to seek aa opportunity for re-election. Further, he also mentioned that defamation in itself does not constitute to be a serious offence and thus, his conviction should be stayed. However, the Gujrat High Court rejected the plea on ground that representatives of people should be a man of clear antecedent.

CASE LAWS-

1. 1. Public Servant Convicted for the offence of Corruption-
2. 2. KC SAREEN v. C.B.I (2001)19- (Para 13) The apex court laid down the legal position that in a case where the public servant is charged for the offence of corruption than the appellant court should not suspend the order of conviction even if the sentence for imprisonment is suspended. This policy was considered necessary by the court since when a person who is convicted for an offence of corruption continues to hold his office then it can diminish the morale of other people manning such office which can consequently erode the confidence of people in public institution (para 12). Later, similar approach was taken by the Apex court in the case of Union of India v. Avtar Singh & Anr20 and State of Maharashtra v. Gajanan & Anr21
3. 3. Politicians disqualified under RPA’1950-
4. 4. BR Kapur v. State of Tamil Nadu- J. Jayalalitha was convicted under section 409 of IPC and section 13 of Prevention of Corruption act. Because of which she was disqualified to be a member of the state legislature. However, yet her party contested for the election and appointed her as the Chife Minister after securing a landmark majority. When her appointment was challenged the Madras High Court suspended the execution of her sentence. Later, when an appeal was preferred in Supreme Court, the court was of the opinion that merely suspending the execution of sentence does not alter the effect that the offender is convicted for a very serious and that her conviction still operates which disqualifies them to be a appointed as a chief minister. Thus, a person who is disqualified under section 8(3) of RPA, 1950 cannot be appointed as Chief Minister and cannot continue to function as such.
   Navjot Singh Sidhu v. State of Punjab- In this case Navjot Singh along with other co-accused were convicted under section 304 part II of IPC and were sentenced for 3 years of imprisonment. After his conviction he resigned from the post of MP from Lok Sabha, yet he wanted to contest for the elections again. However, still the apex court provided him with the relief of stay on order of conviction.

High Courts in cases like Nehru C. Olekar Vs. State of Karnataka22, Mohammed Moquim Vs. State of Odisha23, Shakuntala Khatik Vs. State of M.P have granted the stay on order of conviction on grounds that irreparable losses will befall on the convicts and the public exchequer because not staying the order of conviction, it will ultimately lead to an untimely bye-election.

Source:

https://articles.manupatra.com/article-details/Analysis-of-Suspension-of-Conviction-as-a-Statutory-Remedy