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2003 DIGILAW 237 (JHR)

Sk. Md. Minhazuddin v. State Of Jharkhand

2003-02-21

D.N.PRASAD

body2003
ORDER Deoki Nandan Prasad, J. 1 . This Interlocutory Application at flag "P" dated 23.1.2003 has been filed under Section 389 of the Code of Criminal Procedure on behalf of the appellant praying therein to stay the operation of the judgment of conviction and order of sentence dated 24.7.2001 passed by Shri Prabhat Kumar Sinha No. II, 1st Additional Judicial Commissioner-cum-Special Judge, CBI, Ranchi in R.C. Case No. 19(A) of 1989 under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988 (the Act). 2. One Criminal Appeal No. 300 of 2001 has been filed by the appellant against the judgment of conviction and order of sentence, which was admitted by a Bench of this Court, by order dated 8.8.2001. The appellant has already been on bail. 3. It is alleged that one of his relatives, namely, Shri S.N. Singh, retired Lieutenant Colonel applied for telephone connection in August, 1989 who requested him to process for getting of connection. Accordingly, the informant contacted the officer but the work had not progressed. On 14.12.1989 he went to the Telephone Department at about 10.30 a.m., and when he met the appellant/Telephone Inspector and he told him that if he would spend Rs. 1000/- then he may get the connection only a day after tomorrow. He asked the money to be paid on the following day by 10.30 a.m. On his request that he cannot pay such amount, the appellant agreed at a sum of Rs. 700/-. On the allegation made by the complainant, a first information report was lodged. There was also a trap made to arrest the appellant with tainted money, which was recovered from his possession as he had received the said amount at the relevant time. The left hand fingers of the appellant were also dipped in a solution and the colour of the solution turned pink establishing the fact that he had received the said money. After completing investigation, charge sheet was submitted against the appellant for the offence under Sections 7 and 13(2) read with Section 13(1)(d) of the Act. 4. It is stated by the appellant that he has been suffering from chronic disease of Chest bronchitis and a certificate has also been granted by the Jharkhand Medical Board who had referred for treatment at C.M.C. Vellore. 4. It is stated by the appellant that he has been suffering from chronic disease of Chest bronchitis and a certificate has also been granted by the Jharkhand Medical Board who had referred for treatment at C.M.C. Vellore. It is further claimed that the order of conviction is executable by the employer of the appellant and if the order of conviction and sentence is not stayed, during the pendency of this appeal, the employer is going to terminate the service of the appellant and, therefore, the order of conviction and sentence may be stayed. 5. Mr. V. Shivnath, learned counsel appearing on behalf of the appellant submitted that the order of conviction and sentence may be stayed as the employer is bent upon to terminate the service of the appellant on the basis of the impugned order of conviction and sentence. It is also submitted that the appellant has been suffering from chronic disease. It is further argued that the appellant had submitted to the employer that action under Rule 19 of the Civil Services (Classification, Control & Appeal) Rules, 1965 for discharging or termination of service should not be taken against the appellant as the appeal is pending before the High Court but the employer have rejected the prayer. The learned counsel also relied upon the case of Rama Narang v. Ramesh Narang, (1995) 2 SCC 513 . 6. On the other hand, Mr. Rajesh Kumar, learned counsel appearing on behalf of the Central Bureau of Investigation (CBI) contended before me that this application filed by the appellant is not maintainable as the appeal has already been admitted for hearing and the appellant has been availing the opportunity of ball, so the question of staying the order of conviction and sentence does not arise. An-nexure A/1 to the supplementary affidavit is only Indicating that the appellant has been asked to explain the circumstances of his conduct and that letter was sent on 29.8.2001 and there is nothing on the record to show that any action has yet been taken against the appellant as well as the appellant is not entitled to hold public office in view of the fact that the charges against the appellant for taking bribe being a serious offence for the public servant has fully been established. The learned counsel also relied upon the case of K.C, Sareen v. C.B.I., Chandigarh, 2001 Cri LJ 4234. 7. The learned counsel also relied upon the case of K.C, Sareen v. C.B.I., Chandigarh, 2001 Cri LJ 4234. 7. Order dated 8.8.2001 reads as under :-- "Admit. Issue notice. Call for the lower Court records. The bail already granted to the appellant shall continue, during the pendency of this appeal". 8. From going through Annexure A/1 to the supplementary affidavit, it is apparent that the appellant has been asked to submit a written explanation explaining the circumstances of his conduct and why under Rule 19 of the Civil Services (Classification, Control and Discipline) Appeal Rules, 1965 should not be initiated against him consequent upon his conviction by the Special Judge, CBI, Ranchi. Though that letter was issued on 29.8.2001 but no any document has been produced showing what action has been taken. It has been clearly held In the case of K.C. Sareen, (supra) that when a public servant was found guilty of corruption after a judicial adjudicatory process conducted by a Court of law, judiciousness demands that he should be treated as corrupt until he is exonerated by a superior Court. Suspension of the order of conviction during the pendency of the appeal not found to be permissible. While dealing with the case of K.C. Sareen, (supra), their Lordships also considered the case of Rama Narang, (supra) and held as follows :-- "An order of conviction by itself is not capable of execution under the Code. It is the order of sentence or order awarding compensation or imposing fine or release on probation which are capable of execution and which, if not suspended, would be required to be executed by the authorities. Since the order of conviction does not on the mere filing of an appeal disappear, it is difficult to accept the submission that Section 267 of the Companies Act must be read to apply only to a final order of conviction. Such an interpretation may defeat the very object and purpose for which it came to be enacted." Nevertheless, the three Judge bench further stated that in certain situation the order of conviction can be executable and in such a case the power under Section 389(1) of the Code could be invoked. Such an interpretation may defeat the very object and purpose for which it came to be enacted." Nevertheless, the three Judge bench further stated that in certain situation the order of conviction can be executable and in such a case the power under Section 389(1) of the Code could be invoked. The ratio of the Judgment can be traced out in the said paragraph which is extracted below : "In certain situations, the order of conviction can be executable, in the sense it may incur a disqualification as in the instant case. In such a case the power under Section 389(1) of the Code could be invoked. In such situations the attention of the Appellate Court must be specifically invited to the consequences which are likely to fall to enable it apply its mind to the issue since under Section 389(1) it is under an obligation to support its order for reasons to be recorded by it in writing. If the attention of the Court is not invited to this specific consequence which is likely to fall upon conviction how can it be expected to assign reasons relevant thereto? No one can be allowed to play hide and seek with the Court; he cannot suppress the precise purpose for which he seeks suspension of the conviction and obtain a general order of stay and then contend that the disqualification has ceased to operate." 9. It is well settled that merely because the convicted person filed an appeal in challenge of the conviction, the Court should not suspend the operation of the order of conviction. After admission of appeal, the sentence of imprisonment is kept in abeyance till the disposal of the appeal. 10. Having regard to the above facts and circumstances, I do not find any merit in this Application (LA. No. 60 of 2003), which is accordingly dismissed.