- (1.) HEARD the learned counsel for the parties.
(2.) THE IA No. 1024 of 2004 at flag "O" under Section 389 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the said Code) has been filed at the instance of appellant Kirtan Mahto to stay/ suspend the judgment of conviction dated 17.1.2004 and sentence dated 21.1.2004 passed by the learned Court below in SI No. 707 of 1997 against him. The facts giving rise to this application are as follows ; Appellant Kirtan Mahto was prosecuted along with other co -appellant for the offence under Sections 302, 201 and 120 -B of the Indian Penal Code, in Sessions Trial No. 40 of 1997 arising out of Barkagaon PS Case No. 87 of 1994 (G.R. Case No. 2092 of 1994) and he was found guilty, convicted and sentenced to undergo RI for the life for the offence under Section 302 of the Indian Penal Code and to pay a fine of Rs. 2000/ - and also to undergo RI for five years under Section 201 of the Indian Penal Code, and also to pay a fine of Rs. 1,000/ - and in default thereof to undergo RI for six months. However, his sentences were ordered to run concurrently. Other co -appellants were also convicted and sentenced. Appellant Kirtan Mahto and his wife Dubhani Devi preferred appeal against the impugned judgment and order aforesaid. The said appeal was admitted for hearing vide order dated 9.3.2004 and appellant Kirtan Mahto along with his wife were released on bail during the pendency of this appeal in exercise of the power under Section 389 of the Code.
(3.) IT has been submitted by the learned counsel for the appellant Kirtan Mahto that after the release on bail appellant Kirtan Mahto joined his service on 16.03.2004 in Adarsh Middle School, Barkagaon where he was posted as teacher and was served with a memorandum dated 29.6.2004 under the signature of the District Education Superintendent, Hazaribagh that his services stand terminated and in such a situation serious disqualification and consequences has ensued due to his conviction regarding his service and in view of the provisions contained in Section 389 of the said Code, the conviction of this appellant may be suspended. In support of his contention reliance has been placed upon the ratio of the case of S.M. Malik and others V/s. State, 1990 Cri LJ 1919.;