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2003 DIGILAW 1042 (JHR)

A. K. Sinha v. State of Jharkhand

2003-08-23

VIKRAMADITYA PRASAD

body2003
Order This order is being passed on I.A. (Cr.) No. 644/03 read with supplementary affidavit tiled on 22.8.2003. 2. Admitted facts are that the petitioner has been convicted under section 13(2) of the Prevention of Corruption Act for the offence caught red-handed while accepting bribe of Rs. 10,000/- and he has been sentenced to undergo R.I. for two years with fine of Rs. 15,000/-. Admittedly, the petitioner is in suspension in relation to the same offence with effect from 27th April, 1994. On conviction, the petitioner filed this appeal, which was admitted and the petitioner was also admitted to bail, meaning thereby that the sentence was kept in abeyance. Now by filing the aforesaid I.A., the petitioner has sought for stayal of the conviction on the ground that under Rule 68(7) (i) of the State Bank of India Officers' Service Rules, the petitioner, on being convicted, can be discharged from the service and the said discharge under the said Rule is under contemplation. Therefore, the question arises whether the order of conviction, in the facts and circumstances of the case, is executable and whether it can be stayed? To find this answer, it is relevant to reproduce the rule 68(7)(i) of the said Rules, which is as follows:- "68 (7)(i) Notwithstanding contained in sub-rules (2), (3) and (4), where an Officer is at any time or has been adjudicated insolvent or has suspended payments or has compounded with his creditors or is or has been convicted by a criminal court of any offence involving moral turpitude, the appointing authority may discharge the officer from the Bank's service without any notice whatsoever and no appeal shall lie against such discharge." On perusal of the aforesaid provision, it appears that in the case of a conviction by a criminal court for an offence involving moral turpitude, the appointing authority may discharge the officer from the Bank's service without any notice and no appeal shall lie against such discharge. If the conviction continues, then the aforesaid consequences may follow. Therefore, the conviction order becomes executable in this case, but even though the order of conviction is executable, its stayal is to be considered on the merit of each case. 3. The learned counsel appearing for the petitioner, relying on the decision rendered in the case of Rama Narang vs. Ramesh Narang & Ors. Therefore, the conviction order becomes executable in this case, but even though the order of conviction is executable, its stayal is to be considered on the merit of each case. 3. The learned counsel appearing for the petitioner, relying on the decision rendered in the case of Rama Narang vs. Ramesh Narang & Ors. reported in (1995)2 SCC 513 and referring to paragraph 16 of the said judgment, argued that when in certain cases, the conviction is executable, the attention of the appellate court must be invited to the consequence that is likely to fall to enable it to apply its mind to the issue since under section 389(1) it is under an obligation to support its order for the reasons to be recorded by it in writing. He argued that in this case, the specific case has been brought in the form that the conviction order may be executed against the petitioner by discharging him from service. Another judgment relied upon by him is 2001 Cr.L.J. 4234 (K.C.Sareen vs. B.I., Chandigarh). He vehemently argued that though the facts of this case is completely different from that of the petitioner, so much so that the petitioner is under suspension and if only the conviction is stayed, then he is prevented from being discharged, in view of the Rule (supra), but nevertheless, he will remain suspended only and if he remains under suspension, he will not be holding any public office. Consequently, the ratio laid down in 2001 Cr.L.J. 4234 will not be applicable. 4. To the contrary, the learned counsel appearing for the C.B.I. resisted this argument, saying that the charges of corruption have been proved against the petitioner and in some similar cases, the learned Single Judge of this Court has refused to grant stay of conviction. Thus, he relied upon some unreported judgments of this Court delivered in Cr.Appeal No. 300/01, which was a case of bribery and the Court did not interfere with the conviction and consequently, did not stay the same. 5. In the case reported in 2001 Cr.L.J. 4234, Bank Officer was also involved. In this case, the petitioner is also a Bank Officer (Engineer in the Bank). 5. In the case reported in 2001 Cr.L.J. 4234, Bank Officer was also involved. In this case, the petitioner is also a Bank Officer (Engineer in the Bank). The Court examined this fact that what would be the consequence if, despite conviction for an offence of bribery/moral turpitude, such a person is allowed to hold office, the consequence would then be found that it will be demoralizing the sub-ordinates, it will also bring down the confidence of the people in the institution itself. In this case, the petitioner says that as he is in suspension, therefore he is not going to hold any office, consequently he is not in a position to pass any order to be complied with by his subordinates, so the question of demoralizing the sub-ordinates, if he holds the office, does not remain relevant and secondly, since he is not going to hold the office, the confidence of the people in the institution is not also going to be saddled with. In the aforesaid judgment, the Apex Court also said that one aspect to be considered is whether if the stay is not granted, then the damage done to the accused can be undone in the event of success of the appeal and this point requires some consideration, which has not been considered in the unreported judgment cited by the learned counsel appearing for the C.B.I. 6. The provision of the Departmental Rule as quoted above provides for discharge, but it does not provide for dismissal or even if it would have provided for dismissal, then also it has to be read with the conviction order itself, because the discharge is based on/or related to conviction order. If there is no conviction, this provision could not be applied and if there is conviction, then only this provision could be applied, meaning thereby that if the conviction comes, it can be used against the accused, but if the conviction is set aside, the petitioner is relegated to his original position, if the appeal succeeds. Therefore, even if the petitioner does not hold the office either in substantial capacity or as a suspended employee, then in the event of success of the appeal, the loss sustained by the petitioner can be undone. Therefore, even if the petitioner does not hold the office either in substantial capacity or as a suspended employee, then in the event of success of the appeal, the loss sustained by the petitioner can be undone. Thus, it will not be a case that the damage that is going to be sustained by the accused because of non-stayal of the execution of the conviction is going to cause the damage to the accused-appellant-petitioner, which cannot be undone. I think this is the main test for stayal of the conviction and in this view of the matter, I do not find it a fit case, in which the stay of the conviction should be allowed. It goes without saying that the ultimate decision of discharge, which may be taken at this stage will finally depend upon the ultimate conviction or acquittal made in this appeal. The petitioner is at a liberty to move the Motion Bench for early hearing of this case. The I.A. (Cr.) No. 644/03 is dismissed.