Md. Mamun @ Walid Hasan Vs. The State 2017 (2) LNJ 334

Case No: Criminal Miscellaneous Case No. 10009 of 2017

Judge: Muhammad Khurshid Alam Sarkar. J.

Court: High Court Division,

Advocate: Abdur Rob Chowdhury, Mr. Probir Neogi,

Citation: 2017 (2) LNJ 334

Case Year: 2017

Appellant: Md. Mamun @ Walid Hasan

Respondent: The State

Subject: Criminal Law

Delivery Date: 2017-12-20

HIGH COURT DIVISION

(CRIMINAL MISCELLANEOUS JURISDICTION)

 

Md. Rezaul Haque, J

And

Muhammad Khurshid Alam Sarkar, J.

Judgment on

09.05.2017

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Md. Mamun @ Walid Hasan

. . . Convict-Petitioner

(On bail)

-Versus-

The State

...Opposite-Party

Words and Phrases

Conviction

Literally the word ‘Conviction’ means the firm belief of a person in something. In our legal system, the term ‘Conviction’ is the outcome of the criminal prosecution that culminates in a decision of the Court. Conviction represents one of two possibilities that typically arise at the end of a criminal proceeding: either the accused will be found guilty or not guilty of the crime with which he/she is charged. Usually Conviction is perceived by the people as the state of being found or proven guilty or the act of proving or declaring a person guilty of a crime.          . . .(11)

Words and Phrases

Conviction

Convictions are associated with criminal proceedings, as opposed to civil proceedings. Our criminal jurisprudence requires that to secure a Conviction, the prosecution has to prove beyond reasonable doubt that the accused committed the offence.                     . . .(11)

Words and Phrases

Sentence

The word ‘Sentence’ is traditionally defined as the judicial determination and pronouncement of a punishment to be imposed on a person convicted of a crime. Once the accused has been found guilty of a crime, or rather convicted, the Court or Judge will formally declare the appropriate punishment to be imposed upon the person. The Court orders a Sentence based on the relevant law applicable to the particular crime.

Words and Phrases

Conviction and Sentence

The differences, thus, between Conviction and Sentence are that while a Conviction refers to the outcome of a criminal trial i.e. the act of proving or declaring a person guilty of a crime, a Sentence, on the other hand, is the formal declaration by a Court imposing a punishment on the person convicted of a crime. Secondly, in the countries where criminal trial is conducted by jury, a Conviction is a result of the verdict of a Judge and/or jury and, in contrast, a Sentence is typically ordered by a Judge and, thirdly, the Court cannot order a Sentence unless the person has been found guilty or convicted and, therefore, a Conviction must precede a Sentence.           . . . (13)

Code of Criminal Procedure (V of 1898)

Section 426(1)

From the wordings of the above provisions of Section 426(1) of the CrPC, it is explicit that the appellate Court as well as the High Court Division is invested with the power to suspend the execution of the Sentence or Order against which appeal has been preferred. It is, thus, crystal clear that the above quoted Section 426(1) of the CrPC envisages ‘suspension of execution of Sentence’; it does not state about ‘suspension of Sentence’ or ‘suspension of Conviction.                                       . . . (15)

Code of Criminal Procedure (V of 1898)

Section 426(1)

When a convicted-person is sentenced to death and, thereafter, the said convict, upon preferring appeal, is enlarged on bail or because of pending the death reference the death of the convict is not taking place, it amounts to ‘suspension of execution of the Sentence.  . . . (15)

Code of Criminal Procedure (V of 1898)

Section 426

From concurrent reading of all the sub-Sections of Section 426 of the CrPC, we hold that the Legislature has meant that the Sentence may be suspended upon the satisfaction of the Court inasmuch as sub-Sections (2A) and (2B) having been subsequently incorporated in Section 426 of the CrPC by the Legislature by the amendments of the CrPC in the years 1945 (Act No. 2 of 1945) and 1946 (Act No. 4 of 1946) respectively, the literal meaning of the amended provisions as to ‘suspension of Sentence’ shall also be taken in the expression ‘suspension of execution of Sentence’, so as to avoid any conflict between these two phraseologies, particularly when the Marginal Heading of Section 426 of the CrPC clearly suggests that the provision of Section 426 of the CrPC is with regard to suspension of Sentence and releasing on bail pending appeal.    . . . (17)

Words and Phrases

Suspension

Suspension of execution of Sentence’ means ‘suspension of Sentence’. That is to say and conclude that the Sentence can be suspended.                             . . . (18)

Words and Phrases

Conviction

Conviction does not have the feature to be executable. Conviction is merely the findings of the Court. Because of securing suspension of Sentence, thus, Conviction does not go away or does not become suspended. Conviction remains intact until set aside on appeal. . . . (19)

Interpretation of Statute

When any statute prescribes Conviction as a disqualification for contesting the local/ national elections, for applying in any Government/ non-Government service, for holding /remaining/ continuing in any Government/non-Government post, with the above civil consequences it acquires the feature of execution and, thereby, it operates in its full rigour until and unless its operation is stayed by the appellate Court or the High Court Division.   . . . (19)

Code of Criminal Procedure (V of 1898)

Section 426

An order of suspension of Sentence is not capable of wiping out the Conviction. But, stay of order of Conviction results in rendering the impugned order of Conviction and Sentence temporarily inoperative and, as such, the same does not operate as a disqualification. . . . (19)

Code of Criminal Procedure (V of 1898)

Section 426

In our way of scrutiny of the provisions of Section 426 of the CrPC, we did not find any hint in the aforesaid provision empowering any Court to suspend Conviction and, thus, we hold that in the backdrop of absence of the word ‘Conviction’ in the provision of Section 426 of the CrPC, Conviction cannot be suspended by any Court in adjudication upon an application under Section 426 of the CrPC.   . . .(20)

Code of Criminal Procedure (V of 1898)

Sections 426(2) and 561 A

The High Court Division may grant stay of Conviction under Sections 561A read with Section 426(2) of the CrPC only in exceptional and rare circumstances where non-grant of stay would lead to injustice and irreversible consequences.                                   . . . (21)

Code of Criminal Procedure (V of 1898)

Sections 426(2) and 561 A

When a convict-appellant is debarred by a special law to contest the election because of operation of Conviction and Sentence, we hold that the convict-appellant must file a separate application for staying operation of the Conviction under Sections 426(2) read with Section 561A of the CrPC. The convict-appellant, in that event, is required to draw attention of the High Court Division to specific circumstances and s/he must take ground that for securing ends of justice, s/he has taken recourse to the power of the High Court Division under Section 561A of the CrPC coupled with making specific prayer for stay of operation of Conviction, not the suspension of Conviction.                                                           . . . (21)

Interpretation of Statute

Upon obtaining bail from the appellate Court/High Court, although the convict-appellant’s Sentence becomes suspended, but Conviction having remained intact, there is no scope to continue the presumption of innocence. However, in conducting the appeal, the convict appellant is entitled to enjoy the advantage of treating her/his appeal as continuation of trial, notwithstanding her/his status of remaining a convicted person from the perspective of presumption. Thus, appeal, as the continuation of the trial, would not ipso facto bear the notion of remaining innocent until disposal of appeal.     . . . (22)

Constitution of Bangladesh, 1972

Article 109

Code of Criminal Procedure (V of 1898)

Section 426(1)

When the appellate Court would receive an application under Section 426 (1) of the CrPC, the Court shall first endeavour to dispose of the appeal on an urgent basis.

The appellate Court should reject the application under Section 426(1) of the CrPC if the convict-appellant purposefully refrains from resorting to this provision at the earliest opportunity of starting the operation of the civil consequence and approaches the appellate Court only at the fag end of the purpose/cause/event for which s/he requires suspension of Sentence.

The lower appellate Court is empowered to suspend the Sentence only. The lower appellate Court is not competent to suspend/ stay operation of the Conviction.            . . . (27)

Rama Narang Vs. Ramesh Narang, (1995) 2 SCC 513; Navjot Singh Sidhu Vs. State of Punjab, AIR 2007 SC 1003; State of TN Vs. Jaganathan, AIR 1996 (SC) 2449; State of Haryana Vs. Hasmat, 2004 CRI.L.J, 3840 (Supreme Court); BR Kapur Vs. State of TN, (2001) 7 SCC 231 and Union of India Vs. Ramesh Kumar, (1997) 7 SCC 514 ref.

Mr. Abdur Rob Chowdhury, Senior Advocate with

Mr. Md. Shibbir Ahmed, Advocate,

. . .For the petitioner,

Mr. Md. Khurshedul Alam, D.A.G

. . . For the State.

Mr. Probir Neogi, Senior Advocate

Mr. SM Shahjahan and

Mr. Khurshid Alam Khan, Advocates

. . . Amici Curiae

JUDGMENT

Muhammad Khurshid Alam Sarkar, J: On an application under Section 426(2) of the Code of Criminal Procedure, 1898 (CrPC) filed by the convict-applicant (hereinafter referred to as ‘the applicant’), this Rule was issued on 20.03.2017 calling upon the opposite party to show cause as to why the Conviction and Sentence imposed on the applicant in T.R. case no. 244 of 2003, arising out of G.R. case no. 4355 of 2003, should not be suspended during pendency of the Criminal Appeal no. 701 of 2003, which is now pending before the Court of Special Sessions Judge no. 3 of Dhaka (Nari-O-Shishu Nirjaton Domon Special Tribunal no. 3 of Dhaka).

2.            The short facts, leading to issuance of the Rule, are that the applicant was convicted under Section 4 of the Ain Sringkhola Bighnokari (Druto Bichar) Ain, 2002 and was sentenced to suffer rigorous imprisonment for a period of 4 years and to pay a fine of Taka 1000 by the Druto Bichar Adalat no. 4, Dhaka (hereinafter referred to as the trial Court) by the Judgment and Order dated 15.11.2003. Against the said Conviction and Sentence, the applicant preferred this Criminal Appeal no. 701 of 2003 before the Court of Metropolitan Sessions Judge, Dhaka on 22.11.2003 who thereafter transferred the same to the Court of Special Sessions Judge of Dhaka, who is also in charge of the Nari-o-Shishu Nirjatan Doman Special Tribunal No. 3, Dhaka (shortly, the appellate Court). Thereafter, the applicant filed Criminal Miscellaneous Case no. 13383 of 2005 for bail before the High Court Division and he was granted bail on 27.07.2006. Then, the applicant filed an application under Section 426(1) of the CrPC before the appellate Court for suspension of Conviction and Sentence. The appellate Court, after hearing the application, rejected it vide Order dated 11.05.2011 without showing any reason. Against the said rejection order, an application under Section 426(2) of the CrPC was moved before the High Court Division and a Rule was issued upon the State on 15.05.2011 in tandem with an interim order of suspension of the Sentence for three months which was never extended. Later on, on 29.01.2017, the applicant eventually non-prosecuted the said Rule issued in Criminal Miscellaneous Case no. 12883 of 2011. Again, the applicant filed a second application under Section 426(1) of the CrPC before the appellate Court for suspension of Conviction and Sentence, and after hearing the application the appellate Court rejected the same on 02.03.2017 against which the petitioner filed this Miscellaneous Case under Section 426(2) of the CrPC praying for suspension of the operation of the said Judgment and Order of Conviction and Sentence dated 15.11.2003. Accordingly a Rule was issued by this Court.

3.            At the motion hearing, the learned Senior Advocate Mr. Abdur Rob Chowdhury had strenuously argued that if the Conviction and Sentence is not suspended, the applicant shall suffer irreparable loss and injury inasmuch as the applicant shall not be allowed to contest for the post of the Chairman in the ensuing Union Parishad election to be held on 16.04.2017, albeit there is a fair chance of being acquitted if the appeal is heard. Considering the exigency, the instant Rule was issued together with an ad-interim order of suspension of the above Sentence dated 15.11.2003 for a limited period only, in order to enable him to contest the election for the post of the Chairman of Kamaldia Union Parishad, Upazilla: Modhukhli under the District of Faridpur scheduled to be held on 16.04.2017. However, at the time of issuance of the Rule, the learned Advocate for the applicant and the learned Deputy Attorney General were notified that this Rule shall be heard at the earliest, preferably within 4-6 weeks, with the assistance of some Amici Curiae in an endeavour to settle the law-points/issues relating to the provisions of Section 426 of the CrPC, for, although this Court is very often faced with similar applications but there had hardly been any occasion for this Court to lay down clear-cut guidelines for dealing with any application seeking suspension of any Conviction and Sentence. Accordingly, Mr. Probir Neogi, the learned Senior Advocate, Mr. SM Shahjahan and Mr. Khurshid Alam Khan, the learned Advocates of this Court, were asked to assist this Court in adjudication upon the legal issues, which have arisen in this case being pertinent to the provisions of Section 426 of the CrPC.

4.            When the Rule became matured for hearing and the matter appeared in the list under the heading “For Hearing”, no one turned up on behalf of the applicant to attend the hearing of this Rule. However, considering the importance of the issue involved in the Rule, this Court decided to hear the learned Amici Curiae and the learned Deputy Attorney General.  

5.            Mr. Probir Naogi, the learned Senior Advocate appears as an Amicus Curiae and, by taking us through the provisions of Section 426 of the CrPC, submits that any appellate Court as well as this Court, is well empowered to suspend the Sentence only, but not the Conviction. Secondly, it is the discretionary power of the appellate Court and the same should be exercised only upon receiving a formal application from the convict-appellant, he submits. Mr. Neogi submits that the power of suspending the Sentence must be exercised very judiciously only in a rare case where non-suspension shall result in a loss which cannot be compensated by anything and, finally, as he submits, if the High Court Division or the appellate Court decides to suspend the Sentence, the order must contain the reason/s for granting the application. In support of his submissions, Mr. Neogi places Paragraph 4.6 of the ‘Constitutional Law of Bangladesh’ written by Mahmudul Islam and also refers to the case of Rama Narang Vs Ramesh Narang (1995) 2 SCC 513 and Navjot Singh Sidhu Vs State of Punjab AIR2007 SC 1003.

6.            Mr. SM Shahjahan, the learned Advocate (Amicus Curiae) also, at first, places the provisions of Section 426 of the CrPC and submits that the appellate Court and the High Court Division are competent to allow any convict-appellant’s application for suspension of Sentence upon recording the reasonings thereto. By referring to the case of State of TN Vs Jaganathan AIR 1996 (SC) 2449, he submits that the Indian Supreme Court laid down the principle that the power of suspension of Sentence being a discretionary one for the appellate Court, the discretion must be exercised properly. Quoting the observation of the Indian Supreme Court from the case of State of Haryana Vs Hasmat 2004 CRI.L.J 3840 (Supreme Court), Mr. Shahjahan submits that only in exceptional cases the benefit of suspension of Sentence may be granted. 

7.            Mr. Khurshid Alam Khan, the learned Advocate (Amicus Curiae) takes us through the provisions of Section 426 of the CrPC and submits that the appellate Court is empowered by law to suspend only the execution of Sentence, but not the suspension of Sentence and, on this point, he refers to the case of BR Kapur Vs State of TN (2001) 7 SCC 231. Upon referring to the case of Union of India Vs Ramesh Kumar (1997) 7 SCC 514, he submits that by suspension of execution of Sentence under Section 426 of the CrPC an accused avoids undergoing Sentence pending the appeal, but the Conviction continues and is not obliterated. By placing an example before us, he submits that if any action is taken against a Government servant on misconduct which led to his Conviction by the Court of law, in spite of suspension of Sentence, the Conviction does not lose its efficacy.

8.            Mr. Md. Khurshedul Alam, the learned Deputy Attorney General, while opts to adopt the submissions advanced by the learned Amici Curiae, adds a point that the presumption of innocence in favour of an accused comes to an end when a trial Court convicts an accused and sentences him.

9.            After hearing the learned Amici Curiae and the learned Deputy Attorney General and upon perusal of the applicant’s application, it appears to us that in order to properly deal with an application under Section 426 of the CrPC, the following legal issues are required to be addressed:- (i) what are the meanings of the words ‘Conviction’ and ‘Sentence’, (ii) what does mean by ‘suspension of execution of Sentence’ as it occurs in Section 426(1) of the CrPC, (iii) whether there is any difference between ‘suspension of execution of Sentence’ and ‘suspension of Sentence’, in other words, whether a Sentence can be suspended, (iv) whether Conviction is executable and suspendable and (v) whether the presumption of innocence of a person convicted and sentenced by a trial Court ends up with the pronouncement of Conviction and Sentence or it continues till the final verdict by the appellate Court/higher Court.

10.        There is no definition of ‘Conviction’ and ‘Sentence’ in the CrPC, or the Penal Code or, to our knowledge, in any other statute. Black’s Law Dictionary provides the meanings of the above two words as under:

Conviction: The act or process of judicially finding someone guilty of a crime; the state of having been proved guilty. The judgment (as by a jury verdict) that a person is guilty of a crime.

Sentence: The judgment that a Court formally pronounces after finding a criminal defendant guilty; the punishment imposed on a criminal wrongdoer.

11.        Literally the word ‘Conviction’ means the firm belief of a person in something. In our legal system, the term ‘Conviction’ is the outcome of the criminal prosecution that culminates in a decision of the Court. Conviction represents one of two possibilities that typically arise at the end of a criminal proceeding: either the accused will be found guilty or not guilty of the crime with which he/she is charged. Usually Conviction is perceived by the people as the state of being found or proven guilty or the act of proving or declaring a person guilty of a crime. By jogging any one’s mind back to one of the episodes of a legal TV series, particularly the scene of a criminal trial by the juror, the scene which would flash is that the juror stands up at the end and says “we find the accused guilty” or a Judge says ‘the accused has been found guilty of the crime’; this is a Conviction. Convictions are associated with criminal proceedings, as opposed to civil proceedings. Our criminal jurisprudence requires that to secure a Conviction, the prosecution has to prove beyond reasonable doubt that the accused committed the offence.

12.        The word ‘Sentence’ is traditionally defined as the judicial determination and pronouncement of a punishment to be imposed on a person convicted of a crime. Once the accused has been found guilty of a crime, or rather convicted, the Court or Judge will formally declare the appropriate punishment to be imposed upon the person. The Court orders a Sentence based on the relevant law applicable to the particular crime. In our legal system, Sentence may take various forms; such as, Sentence of death, Sentence of imprisonment for life, Sentence of imprisonment for a fixed term, Sentence of forfeiture of property and Sentence of fine. These are specified by Section 53 of the Penal Code and also in other special laws. In other countries, Sentence also includes the community service, restitution, rehabilitation programmes, deferred adjudication or pre-trial diversion and probation. Although there are no statutory laws or guidelines in our country to help the Judges in imposing the appropriate Sentence where the Penal Code or special statutes prescribe the maximum and minimum Sentence, a Court usually considers several factors in determining a criminal Sentence, including: whether the offender has any criminal history; whether the offender was the main offender or an abettor/accessory (someone who assists the main offender) or; whether the offender was under great personal stress or duress when he or she committed the crime; whether anyone was injured or the crime was particularly likely to result in injury; whether the offender was particularly cruel to a victim, or particularly destructive, vindictive, etc.; and whether the offender displayed remorse or regret. In our jurisdiction, there are two different types of Sentences, namely, concurrent Sentences and consecutive Sentences meaning that the multiple Sentences can be served concurrently (at the same time) or consecutively (one after another). In the developed/civilised countries, in cases where the accused does not have a history of committing crimes, a term of probation usually is ordered by the Court or the suspended Sentence is awarded.

13.        The differences, thus, between Conviction and Sentence are that while a Conviction refers to the outcome of a criminal trial i.e. the act of proving or declaring a person guilty of a crime, a Sentence, on the other hand, is the formal declaration by a Court imposing a punishment on the person convicted of a crime. Secondly, in the countries where criminal trial is conducted by jury, a Conviction is a result of the verdict of a Judge and/or jury and, in contrast, a Sentence is typically ordered by a Judge and, thirdly, the Court cannot order a Sentence unless the person has been found guilty or convicted and, therefore, a Conviction must precede a Sentence.

14.        For examining the legal issue no. ii, namely, the scope of the expression ‘suspension of execution of Sentence’, we need to look into sub-Sections (1) & (2) of Section 426 of the CrPC, which are quoted below:

426. (1) 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 bail or on his own bond.

(2) The power conferred by this section on an Appellate Court may be exercised also by the High Court Division in the case of any appeal by a convicted person to a Court subordinate thereto.

(Underlines added by us)

15.        From the wordings of the above provisions of Section 426(1) of the CrPC, it is explicit that the appellate Court as well as the High Court Division is invested with the power to suspend the execution of the Sentence or Order against which appeal has been preferred. It is, thus, crystal clear that the above quoted Section 426(1) of the CrPC envisages ‘suspension of execution of Sentence’; it does not state about ‘suspension of Sentence’ or ‘suspension of Conviction’. When a convicted-person is sentenced to death and, thereafter, the said convict, upon preferring appeal, is enlarged on bail or because of pending the death reference the death of the convict is not taking place, it amounts to ‘suspension of execution of the Sentence’. Like-wise, when a convicted-person is sentenced to life imprisonment or to a fixed term imprisonment and, on appeal, instead of putting him in confinement, if he is released on bail, then the execution of the sentence remains suspended. Similarly, on preferring appeal, if the convict-appellant does not wish to comply with the order of payment of fine or forfeiture of the property and prays to the appellate Court for its non-payment or non-forfeiture and, accordingly, the appeal Court allows the prayer, then it is said that the execution of Sentence as to payment of fine or forfeiture is suspended.

16.        In sequence to examination of the remaining legal issues, we may now see whether there is any difference between ‘suspension of execution of Sentence’ and ‘suspension of Sentence’, in other words, whether a Sentence can be suspended. For the said purpose, it would be profitable to look into the rest of the provisions of Section 426 of the CrPC, i.e. sub-Sections (2A)(B) and (3) which are reproduced below:

426 (2A) When any person is Sentenced to imprisonment for a term not exceeding one year by a Court, and an appeal lies from that Sentence, the Court may, if the convicted person satisfies the Court that he intends to present an appeal, order that he be released on bail for a period sufficient in the opinion of the Court to enable him to present the appeal and obtain the orders of the Appellate Court under sub-section (1) and the Sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.

(2B) Where High Court Division is satisfied that a convicted person has been granted special leave to appeal to the Appellate Division of the Supreme Court against any Sentence which it has imposed or maintained, it may, if it so thinks fit, order that pending the appeal the Sentence or order appealed against be suspended, and also, if the said person is in confinement, that he be released on bail.

(3) When the appellant is ultimately Sentenced to imprisonment, or transportation, the time during which he is so released shall be excluded in computing the term for which he is so sentenced. (underlined by us)

17.        From a plain reading of sub-Sections (2A) and (2B) of Section 426 of the CrPC, it appears to us that Sentence is suspendable. Although in course of examining the provisions of Section 426 (1) of the CrPC, it was appearing that only ‘suspension of execution of Sentence’ is contemplated in the law, however, from concurrent reading of all the sub-Sections of Section 426 of the CrPC, we hold that the Legislature has meant that the Sentence may be suspended upon the satisfaction of the Court inasmuch as sub-Sections (2A) and (2B) having been subsequently incorporated in Section 426 of the CrPC by the Legislature by the amendments of the CrPC in the years 1945 (Act no. 2 of 1945) and 1946 (Act no. 4 and 1946) respectively, the literal meaning of the amended provisions as to ‘suspension of Sentence’ shall also be taken in the expression ‘suspension of execution of Sentence’, so as to avoid any conflict between these two phraseologies, particularly when the Marginal Heading of Section 426 of the CrPC clearly suggests that the provision of Section 426 of the CrPC is with regard to suspension of Sentence and releasing on bail pending appeal.

18.        Therefore, although an ambiguity is apparent in the different sub-Sections of Section 426 of the CrPC as to having the meaning of ‘suspension of execution of Sentence’ and ‘suspension of Sentence’, in an effort to give coherent and workable meaning of the aforesaid expressions, this Court holds that ‘suspension of execution of Sentence’ means ‘suspension of Sentence’. That is to say and conclude that the Sentence can be suspended.

19.        Now, we may take up the examination of the issue as to whether Conviction is executable and suspendable. As it has been found hereinbefore, in the course of examining the meaning of the words ‘Conviction’ & ‘Sentence’, that Sentence is the corollary of the Conviction, the normal presumption would be that by dint of suspension of Sentence, the Conviction also becomes suspended. However, the above presumption is not correct inasmuch as while Sentence being something executable and, accordingly, without its suspension the death will take place or the convict will remain in confinement or the property would be forfeited or the fine is to be paid, Conviction does not have the feature to be executable. Conviction is merely the findings of the Court. Because of securing suspension of Sentence, thus, Conviction does not go away or does not become suspended. Conviction remains intact until set aside on appeal. This is the one side of the coin of Conviction. The other side of the coin of Conviction is that when any statute prescribes Conviction as a disqualification for contesting the local/national elections, for applying in any Government/non-Government service, for holding/remaining/continuing in any Government/non-Government post, with the above civil consequences it acquires the feature of execution and, thereby, it operates in its full rigour until and unless its operation is stayed by the appellate Court or the High Court Division. If in any Statute or Rules or Notifications, only Sentence is mentioned as a disqualification, Sentence requires to be stayed for that type of case as well. Sentence being the logical consequence of Conviction, the former does not become stayed without staying the order of Conviction. There is difference between suspension of Sentence (and Conviction) and stay operation of the Sentence (and Conviction). By simply suspending the order of Sentence, a convict-appellant shall not be able to revoke his disqualification, for, by suspending the Sentence, merely the execution of Sentence is suspended. Hence, an order of suspension of Sentence is not capable of wiping out the Conviction. But, stay of order of Conviction results in rendering the impugned order of Conviction and Sentence temporarily inoperative and, as such, the same does not operate as a disqualification.  

20.        Now, the question comes up for consideration as to whether the appellate Court or the High Court Division is competent to suspend Conviction when a convict-appellant approaches the Court with an application under Section 426 of the CrPC. In our way of scrutiny of the provisions of Section 426 of the CrPC, we did not find any hint in the aforesaid provision empowering any Court to suspend Conviction and, thus, we hold that in the backdrop of absence of the word ‘Conviction’ in the provision of Section 426 of the CrPC, Conviction cannot be suspended by any Court in adjudication upon an application under Section 426 of the CrPC.

21.        While the lower appellate Court appears to be incompetent to suspend the operation of Conviction due to not being empowered by Section 426 of the CrPC or not being equipped by any other law, the High Court Division must not be seen to be lacking power to grant relief to a convict-appellant who is in dire need of an order of stay of operation of the Conviction towards enabling the convict to secure qualification for contesting the local/national elections, for applying in any Government/non-Government service, for holding/remaining in any Government/non-Government post etc. for a very short period, if the appeal cannot be disposed of quickly and the loss the convict-appellant would suffer is not compensable. However, the convict-appellant-applicant before the High Court Division must not be entitled to obtain a stay order from this Court until s/he satisfies that there was no fault on her part to dispose of the appeal and, further, s/he is willing to assist the appellate Court in disposal of the pending appeal within the shortest possible time. In other words, the High Court Division may grant stay of Conviction under Sections 561A read with Section 426(2) of the CrPC only in exceptional and rare circumstances where non-grant of stay would lead to injustice and irreversible consequences. When a convict-appellant is debarred by a special law to contest the election because of operation of Conviction and Sentence, we hold that the convict-appellant must file a separate application for staying operation of the Conviction under Sections 426(2) read with Section 561A of the CrPC. The convict-appellant, in that event, is required to draw attention of the High Court Division to specific circumstances and s/he must take ground that for securing ends of justice, s/he has taken recourse to the power of the High Court Division under Section 561A of the CrPC coupled with making specific prayer for stay of operation of Conviction, not the suspension of Conviction.

22.        Let us now see whether presumption of innocence ends up with the pronouncement of Conviction and Sentence or whether it continues till the final verdict by the appellate Court/higher Court. In the criminal trial system of our jurisdiction, Conviction is the established findings of the trial Court on the criminal charge/s which was brought against an accused by the prosecution at the time of commencement of the trial of a criminal case, as has been held by us hereinbefore. Our criminal justice system allows an accused to seek discharge from the criminal charge/s brought against him at the stage of framing charge and, thereafter, also allows to pray for acquittal after the completion of prosecution evidence. After unsuccessfully exhausting the above two phases, an accused then finally waits for acquittal of the charge/s brought against him through receiving a full verdict. If the verdict contains the proof of charges brought against an accused, the trial Court convicts the accused, instead of acquitting him of the criminal charges and, consequent upon the said Conviction, the position of an accused converts into the status of a convict and, that is why, the Legislature purposefully opted to use the words in Section 426 of the CrPC ‘pending any appeal by a convicted person’. Once a Court convicts an accused and sentences to death/imprisonment for more than one year, upon preferring the appeal, the convict cannot claim bail as of right unless the Court is satisfied that there are good grounds/reasons to enlarge the convict-appellant on bail and, thereby, suspend the Sentence. A convict-appellant whose PC & PR (PC stands for ‘Previous Character’, which is the description of previous conviction as per Regulation 272(b)(iv) of the PRB, 1943 and also the antecedents as per Regulation 272(b)(vii) of the PRB, 1943 of the Charge-sheeted person and ‘PR’ stands for ‘Police Registered’, which is the statements as to whether the Finger Print of the charge-sheeted person was taken previously in connection with any criminal case as per the requirement of Regulation 499 of the PRB, 1943) is clean and is convicted of a minor offence and is sentenced to less than ten years imprisonment and has co-operated with the trial Court in quick disposal of the trial by voluntarily surrendering before the trial Court and he, if was granted bail, has never misused the privilege of bail and, thereafter, at the appellate stage again he fully assists the Court in proceeding with his/her appeal by taking necessary steps, including by preparing Paper Book, but the appellate Court is not in a position to dispose of the appeal in near future, his/her application for bail pending appeal under Section 426 of the CrPC deserves positive consideration by the appellate Court or by the High Court Division. The Courts, however, should always be circumspect to entertain the bail application of a convict-appellant who is convicted of a heinous offence in addition to having had the record of previous Conviction. Upon obtaining bail from the appellate Court/High Court, although the convict-appellant’s Sentence becomes suspended, but Conviction having remained intact, there is no scope to continue the presumption of innocence. However, in conducting the appeal, the convict appellant is entitled to enjoy the advantage of treating her/his appeal as continuation of trial, notwithstanding her/his status of remaining a convicted person from the perspective of presumption. Thus, appeal, as the continuation of the trial, would not ipso facto bear the notion of remaining innocent until disposal of appeal.

23.        Now, we may revert to our case in hand and adjudicate this Rule applying the ratio laid down by us. In the present case, the convict-appellant-applicant wishes to contest the Union Parishad election for the post of Chairman, but due to the Conviction under Section 4 of Ain Sringkhoal Bighnokari (Druto Bichar) Ain, 2002 and Sentence of imprisonment for 4(four) years awarded by the trial Court, he is not qualified to do so and, under the circumstances, he prays for suspension of Conviction and Sentence. From the perusal of the application, it transpires that he has made his application under Section 426(2) of the CrPC. In fact, in most of such cases, the learned Advocate for the convict-appellant attempts to pray for suspending the Conviction and Sentence taking recourse to the provisions of Section 426 of the CrPC, which is completely an erroneous approach inasmuch as suspension of Conviction is not contemplated in Section 426 of the CrPC. From the plain reading of all sub-Sections of Section 426 of the CrPC, any one with ordinary prudence would see that law contemplates suspension of execution of Sentence and suspension of Sentence; not suspension of Conviction. Upon a minute reading of the entire provisions of Section 426 of the CrPC, which is comprised of 5 sub-Sections, and, thereby, examining the same as carried out hereinbefore, it is found that the provisions are primarily focused on and concerned with suspension of Sentence and granting bail to a convict who has already preferred or desires to prefer an appeal.

24.        As per the ratio laid down by us hereinbefore, the present convict-appellant-applicant is required to file an application under Section 426(2) read with 561A of the CrPC given that he wants to suspend not only his Sentence, but also his Conviction. Had it been his prayer that he wants to suspend the order of Sentence only, an application under Section 426(2) would have been fitted into towards mitigating his grievance albeit it would not help him remove his disqualification due to his Conviction remaining operative. The convict-appellant’s present application is, therefore, held to be not in form and misconceived one and, thus, the Rule is liable to be discharged only on this ground alone.

25.        In any event, an application under Section 426 of the CrPC must not be treated as routine work by the lower appellate Court or the High Court Division. It is to be noted with emphasis that by the employment of the expression “the appellate Court may”, as it occurs in Section 426 (1) of the CrPC, the Legislature has made it clear that it is the discretion of the appellate Court and the High Court Division as to whether Sentence appealed against deserves to be suspended or not. Thus, it is not a matter of right for a convict-appellant to have execution of his Sentence suspended automatically by merely preferring an appeal. Therefore, a convict-appellant must file a separate application detailing the reason/s for suspension of Sentence. Upon minutely considering the ground/s taken by the convict-appellant, if the appellate Court/High Court Division proceeds towards taking a decision for suspending the Sentence, the Court is required to record its reasonings, for, one of the essential ingredients of Section 426 of the CrPC is the requirement for the appellate Court to record reasons in writing for ordering suspension of the Sentence. Therefore, the appellate Court is duty bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of Sentence.

26.        In this application, no case is made out to satisfy us that the Conviction and Sentence would ultimately fail if the appeal is disposed of on merit. More so, the applicant-appears to have come with unclean hands, for, from the manner and style of handling his appeal, it is evident that he is not interested in disposing of the appeal which is pending before the lower appellate Court since the year 2003. Because of the applicant’s dubious role in dealing with his appeal, he does not deserve discretionary relief under Section 426 and 561A of the CrPC, even if this Court suo  motu converts the present application to be one under the above two Sections. Thus, this Rule is liable to be discharged. Given the pattern of conducting this case by this convict-appellant, it has been the bounden duty of this Court to pass an order of direction upon the concerned lower appellate Court to dispose of the appeal within the shortest possible time.

27.        Before parting with this judgment, this Court feels it necessary to lay down some guidelines for the lower-appellate Court, as the part of this Court’s duty under Article 109 of the Constitution, to help the subordinate judiciary in conveniently and effectively dealing with the applications under Section 426(1) of the CrPC. The guidelines are set out below:

(1)   When the appellate Court would receive an application under Section 426 (1) of the CrPC, the Court shall first endeavour to dispose of the appeal on an urgent basis.

(2)   The appellate Court should reject the application under Section 426(1) of the CrPC if the convict-appellant purposefully refrains from resorting to this provision at the earliest opportunity of starting the operation of the civil consequence and approaches the appellate Court only at the fag end of the purpose/cause/event for which s/he requires suspension of Sentence.

(3)   The lower appellate Court is empowered to suspend the Sentence only. The lower appellate Court is not competent to suspend/stay operation of the Conviction.

28.        In the result, the Rule is discharged without any order as to costs.

29.        The concerned appellate Court, namely, the learned Special Sessions Judge no. 3 of Dhaka (the learned Judge of the Nari-O-Shishu Nirjaton Domon Special Tribunal no. 3 of Dhaka) is directed to dispose of the Criminal Appeal no. 701 of 2003 arising out of TR Case no. 244 of 2003 corresponding to GR Case no. 4355 of 2003 within 6 (six) months from the date of receipt of this order and inform this Court accordingly by writing a letter to the Registrar of the High Court Division.

30.        Office is directed to communicate this order to the concerned appellate Court namely, Special Sessions Judge Court no. 3 of Dhaka (Nari-O-Shishu Nirjaton Domon Special Tribunal no. 3 of Dhaka), at once.

Ed.