NIRMALJIT KAUR, J. - (1.) THIS is an application for suspension of order of conviction dated 24th August, 2007 passed by Sessions Judge, Jodhpur confirming the conviction and sentence passed by Judicial Magistrate, Jodhpur vide order dated 10th April, 2006.
(2.) THE present applicant is an accused in Criminal Case No.206/1999, wherein the Judicial Magistrate, Jodhpur vide order dated 10th April, 2006 convicted the applicant under Section 51 of the Wildlife Protection Act, 1972 and sentenced him to 5 years' simple imprisonment along with fine of Rs.25,000/ -. The appellant court confirmed the order of the trial court vide an order dated 24th August, 2007. Thereafter, the applicant filed S.B.Criminal Revision Petition No.905/2007 before the High Court under Section 397 read with Section 401 of the Cr.P.C. The said revision was admitted vide order dated 31st August, 2007. Vide a separate order dated 31st August, 2007, the High Court suspended the substantive sentence of the applicant and granted bail to him under Section 391(1) of the Cr.P.C. However, while suspending the sentence, the High Court imposed certain restrictions. One of the restriction was that the applicant will not leave the country without prior permission of the Court. Thereafter, on an application moved by the applicant, the said condition was deleted vide order dated 21st February, 2011.The High Court permitted the applicant to travel abroad during the pendency of the said revision petition . Meanwhile, the Visa of the applicant for travelling to United Kingdom was rejected by UK Boarder Agency Home Office on the ground that that applicant was under the criteria set out in paragraph 320(2) of HC395. It is in these circumstances that the present application for suspension of order of conviction passed by the Judicial Magistrate, Jodhpur has been moved. Reply is filed by the State opposing the prayer of the applicant. Mr.R.L.Jangid, learned Additional Advocate General and Mr.Mahipal Bishnoi appearing for the respondent -State while vehemently opposing the prayer submitted that the application under Section 389(1) of the Cr.P.C. is not maintainable. It was stated that under Section 389(1) of the Cr.P.C., the appellate court is empowered to suspend the execution of the sentence of a convicted person. Thus, the said application is maintainable before the appellate court, whereas, the application for suspension of conviction awarded to the appellant by both the courts below has been filed in the revision petition pending under Section 397 of the Cr.P.C. It was stated that stage for moving an application under Section 389(1) of the Cr.P.C. is over. This is not an appellate court but a revisional court where no application under Section 389 of the Cr.P.C. is maintainable. Secondly, two more criminal cases are pending against the applicant before the competent court of jurisdiction at Jodhpur and one more case pertaining to rash and negligent driving is pending consideration before the competent court of jurisdiction at Mumbai. Thus, he was not entitled to the relief in view of his conduct.
(3.) LEARNED Additional Advocate General further contended that the facts of the case of Navjot Singh Sidhu Vs. State of Punjab and Another, reported in (2007)2 Supreme Court Cases 547, are not applicable in the facts of the present case and are distinguishable. It was stated that the said power can be exercised only in a rarest of rare case depending upon the facts of the case. In the case of Navjot Singh Sidhu, the applicant was sitting Member of Parliament and he had chosen a moral path by resigning immediately, whereas, the averments in the present application that it will cause irreparable loss and injury both professional and socially, if Salman Khan is not allowed to discharge his professional commitments does not bring him under the preview of rarest of rare case. Reliance was placed on the judgment of Hon'ble Supreme Court rendered in the case of State of Maharasthra through CBI, Anti Corruption Branch, Mumbai Vs. Balakrishna Dattatrya Kumbhar, (Criminal Appeal No.1648 of 2012), decided on 15th October, 2012. Learned counsel for the parties were heard at length.;