Research › Search › Judgment

Gujarat High Court · body

2001 DIGILAW 371 (GUJ)

ALWIN LAURENCE MEENDONSA v. STATE

2001-06-16

B.J.SHETHNA

body2001
B. J. SHETHNA, J. ( 1 ) AHMEDABAD is one of the top ten big cities of the country. There were serious complaints about rampant corruption in the Police Department itself. Police Inspector Shri K. M. Rathod specially designated with the Anti-corruption Branch was assigned special duty to check the corruption in the Police Department itself. For that purpose Shri Rathod alongwith the members of the raiding party intercepted one truck near Visat Petrol Pump near Sabarmati on the road going towards ONGC Colony. Driver of a truck who was going towards Maharashtra was explained the purpose for which he was stopped for trapping corrupt Police constables posted at the Traffic points of Ahmedabad. He was given currency notes of Rs. 65 of different denominations with the enthracine powder poured on it. When they reached alongwith the members of the raiding party including PI Shri Rathod towards Narol, the appellant accused - Alwin Laurence Mendonsa was on duty as a Traffic Police Constable. He had demanded bribe of Rs. 20 from the driver of the truck for entry, as more passengers were travelling in the cabin of the truck. The said amount of notes of Rs. 20 were paid to him and immediately he was caught by the raiding party. Shri Rathod reached there alongwith panch witness No. 2 and caught the accused red-handed. ( 2 ) AFTER completing the investigation, the appellant accused was charge-sheeted for the offence punishable under Sections 7 and 13 (1) (D) read with Sections 3 and 13 (2) of the Prevention of Corruption Act, before the Court of Special Judge, Ahmedabad City, Ahmedabad. ( 3 ) AFTER considering the evidence of the prosecution witnesses as well as the defence of the accused, the learned Special Judge found the appellant accused guilty for the offences for which he was charged. Therefore, by judgement and order dated 15. 11. 2000, convicted the appellant accused for the aforesaid offences and sentenced him to suffer one year and three months rigorous imprisonment with a fine of Rs. 500. 00. This order of conviction and sentence was challenged by the appellant accused in Criminal Appeal No. 1080 of 2000 before this Court. When this appeal was initially placed before the learned Single Judge of this Court on 11. 12. 500. 00. This order of conviction and sentence was challenged by the appellant accused in Criminal Appeal No. 1080 of 2000 before this Court. When this appeal was initially placed before the learned Single Judge of this Court on 11. 12. 2000, urgent show cause notice pending admission was issued to the learned Additional Public Prosecutor and the record and proceedings from the trial Court were called for and the appellant accused was continued on bail on same terms and conditions with fresh bond on the statement being made at the bar that he was enlarged on bail after order of conviction and sentence passed by the trial Court, which was to continue till 29th Dec. 2000. ( 4 ) ON 15. 1. 2001, learned Single Judge of this Court admitted the appeal and directed the office to list this matter as a short sentence matter and to notify in the list prepared chronologically for the matters allotted to the concerned Bench alongwith the other matters. ( 5 ) IT seems that after the admission of the above Criminal Appeal, the appellant accused filed Misc. Criminal Application No. 906 2001 in the aforesaid appeal and prayed to suspend the judgement and order of conviction and sentence dated 15. 11. 2000 passed by the learned Additional Sessions Judge, Court No. 8, Ahmedabad in Special Case No. 30/97. This application was adjourned earlier on three occasions and on 10. 4. 2001, learned Single Judge of this Court ordered to issue notice and made it returnable on 18. 4. 2001. Thereafter, it was adjourned twice and today it is placed for orders. ( 6 ) MAIN Criminal Appeal No. 1080 of 2000filed by the appellant accused challenging his order of conviction and sentence is already admitted and the appellant is ordered to continue on bail. Therefore, I am not required to pass any further order in this appeal today. But it is placed today on the Board as Misc. Criminal Application No. 906 2001 is filed by the appellant accused in the aforesaid appeal. ( 7 ) MISC. Criminal Application No. 906 of 2001 is filed in the above Criminal Appeal by the appellant accused for suspending the judgement and order of conviction and sentence passed by the learned Additional Sessions Judge in Special Case No. 30 of 1997. Criminal Application No. 906 2001 is filed by the appellant accused in the aforesaid appeal. ( 7 ) MISC. Criminal Application No. 906 of 2001 is filed in the above Criminal Appeal by the appellant accused for suspending the judgement and order of conviction and sentence passed by the learned Additional Sessions Judge in Special Case No. 30 of 1997. ( 8 ) LEARNED Counsel Shri Nanavaty for the appellant accused submitted that though the order of sentence passed by the learned Judge is suspended by this Court in appeal itself, he was required to file the aforesaid application because of the order of conviction passed by the trial Court the appellant is likely to lose his job. Shri Nanavati vehemently submitted that the judgement and order of conviction passed by the learned Judge convicting the appellant accused for the aforesaid offences punishable under the Prevention of Corruption Act is ex-facie bad and liable to be quashed and set aside on several grounds. He, therefore, submitted that if the judgement and order of conviction and sentence passed by the learned Special Judge is not suspended, then the appellant accused will suffer irreparable loss because on the basis of conviction he will be dismissed from service as per the Rules. He also submitted that the final hearing of the main appeal against the order of conviction and sentence will take some more time. He further submitted that when the order of sentence is already suspended by this Court while admitting the appeal, then there is no reason for this Court not to suspend the order of conviction also. In any case, he requested to make it clear that once the order of sentence is suspended, then the services of the appellant accused should not be terminated by his appointing authority merely because he was convicted by the trial Court. ( 9 ) WHETHER the learned Special Judge has rightly or wrongly convicted the accused is not a question to be decided at this stage. Whether the judgement and order of conviction and sentence passed by the learned Judge is right or wrong can only be examined at the time of final hearing of the matter after hearing the learned Counsel for the accused as well as the learned Public Prosecutor for the State. Admission of an appeal is totally different matter. Whether the judgement and order of conviction and sentence passed by the learned Judge is right or wrong can only be examined at the time of final hearing of the matter after hearing the learned Counsel for the accused as well as the learned Public Prosecutor for the State. Admission of an appeal is totally different matter. When the Court is satisfied that there is some prima-facie case, then the appeal is ordinarily admitted and the sentence is suspended on the facts and circumstances of that case, so that if the appeal is not heard early then his appeal may not become infructuous if the period of sentence is over. But, I am of the considered opinion that once the learned trial Judge after fully appreciating the evidence of the prosecution case as well as the defence of the accused found the accused guilty for the offences for which he was charged, then there is no question of suspending such order of conviction, arises at this stage. Order of conviction can be either confirmed or set aside finally and it cannot be suspended by any interim order. ( 10 ) IT is true that on conviction of the appellant accused who is a Government servant, is bound to loose his job. But, he can always be later on compensated if ultimately his conviction is set aside in Appeal. If there is a clean acquittal recorded by the appellate Court in favour of the accused, the accused can always apply for reinstating him in service. But, there are cases where the accused may be acquitted either on technical grounds or by giving benefit of doubt. In such type of cases it is always open to the Department to proceed against the appellant by way of Departmental proceedings for the same charges, even if his order of conviction is set aside on the aforesaid grounds and if the charges are proved, then he can be even dismissed from service. ( 11 ) THIS Court can take judicial notice of the fact that once the accused is enlarged on bail after admission of his appeal, then his appeal is not heard for years together. Therefore, in such type of cases if this Court suspends the order of conviction, then the accused may continue in service even after his conviction for a pretty long time. Therefore, in such type of cases if this Court suspends the order of conviction, then the accused may continue in service even after his conviction for a pretty long time. And, if ultimately his appeal is dismissed and the order of conviction is upheld then by that time he may perhaps even retire from service which will not be in the interest of justice. If the submission of Shri Nanavaty is to be accepted, then the accused who is found guilty by the trial Court as well as by this Court in appeal can plead before the Department that his SLP is granted and Criminal Appeal is pending before the Honble Supreme Court, therefore, he should not be dismissed from service. ( 12 ) UNDER the circumstances when the first Court, which is the finding of fact authority, after due appreciation of prosecution evidence and the defence of the accused finds him guilty for a serious offence like corruption, then there is no question of suspending his order of conviction. If this Court takes any other view of the matter, then it will not be in the interest of justice or society at large. It is high time that the Courts should come down heavily against such corrupt persons. Therefore, I am of the considered opinion that in a case where persons are charged for the serious offences like corruption or moral turpitude and found guilty by the trial Court, then there is no question of suspending the order of conviction. If the order of conviction is suspended and he is allowed to continue in service, then the possibility of his indulging in such type of activities can not be ruled out. ( 13 ) IF the order of conviction is suspended till the final disposal of the appeal, then the accused being a Government employee may have to continue in service, with or without the order of suspension. If he is placed under suspension then for first six months he will have to be paid 50% of his salary as subsistence allowance and then 75% subsistence allowance under the Rule without doing any work. And ultimately, if his appeal is dismissed and the order of conviction is confirmed, then the Government will not be able to recover that amount from the accused. Thus, it will be an additional burden to the State if such person is reinstated in service. And ultimately, if his appeal is dismissed and the order of conviction is confirmed, then the Government will not be able to recover that amount from the accused. Thus, it will be an additional burden to the State if such person is reinstated in service. If he is not dismissed from service other person can not be appointed in his place and thereby also the Government work will suffer. In our country lakhs of educated persons are without employment, then atleast one of them can get the service in place of such corrupt persons. ( 14 ) IT is true that in the instant case the accused is a Constable who has caught red-handed while accepting bribe of only Rs. 20, but he is caught for the first time and there are general complaints of this type of corruption prevailing in traffic Police, as thousands of vehicles are passing through Ahmedabad everyday. It may be stated that there is a specific provision under the Criminal Procedure Code for suspension of sentence imposed by the trial Court after the conviction, but the legislature in its wisdom has rightly not made any provision regarding such similar provision of suspension of the order of conviction passed by the Court below. ( 15 ) BEFORE parting, I must state that after arguing the matter at great length, learned Counsel Shri Nanavaty sought permission to withdraw this application, but I have not granted that permission because lot of time of Court was consumed and that this point was required to be decided for once and all. ( 16 ) IN view of the above discussion Criminal Misc. Application No. 906 2001 to suspend the judgement and order of conviction passed by the learned Special Judge is hereby dismissed. Office is directed to send copy of this order to the Chief Secretary, Home Secretary, Legal Secretary and the Director General of Police and to the Public Prosecutor to circulate to the concerned persons forthwith. Notice is discharged. .