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2004 DIGILAW 499 (RAJ)

Umar Deen v. State of Rajasthan

2004-04-05

H.R.PANWAR

body2004
Judgment H.R. Panwar, J.-By the instant petition filed under Section 389 read with Section 482 CrPC, petitioner-appellant has prayed for suspension of order of conviction dated 27.09.2003 passed by the learned Sessions Judge, (Prevention of Corruption Act) Cases, Bikaner in Sessions Prevention of Corruption Case No. 8/2003 2. The facts of the case, in succinct, are that the petitioner-appellant was tried by the learned Sessions Judge for the offence under Sections 409, 467, 468, 471, IPC and Section 13 (2) of the Prevention of Corruption Act, 1988 and after conclusion of the trial, vide impugned Judgment and order dated 27.09.2003, learned Sessions Judge (Prevention of Corruption Act) Cases, Bikaner, convicted and sentenced him for the offence under Sections 409, 467, 468, 471 of the Indian Penal Code and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. Aggrieved by the impugned Judgment and order of conviction and sentence dated 27.09.2003, the appellant-petitioner has filed an appeal before this Court, which was admitted on 110.2003 and sentence of imprisonment awarded to him was suspended. Now, he has filed an application under Section 389 read with Section 482 of the Code of Criminal Procedure for suspending the conviction till pendency of the appeal. 3. I have heard learned Counsel for the parties and perused the record. 4. In K.C. Sareen vs. C.B.I., Chandigarh, 2001 (6) SCC 584 , the Hon’ble Apex Court observed as under:-“The legal position, therefore, is that though the power to suspend an order of conviction, apart from the order of sentence, is not alien to Section 389 (1) of the Code, its exercise would be limited to very exceptional cases. 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. The Court has a duty to look at all aspects including the ramifications of keeping such conviction in abeyance. It is in the light of the above legal position when a public servant is convicted of an offence under the Prevention of Corruption Act. The Court has a duty to look at all aspects including the ramifications of keeping such conviction in abeyance. It is in the light of the above legal position when a public servant is convicted of an offence under the Prevention of Corruption Act. No doubt when the appellate Court admits the appeal filed in challenge of the conviction and sentence for the offence under the PC Act, the superior Court should normally suspend the sentence of imprisonment until disposal of the appeal, because refusal thereof would render the very appeal otiose unless such appeal could be heard soon after the filing of the appeal. But suspension of conviction of the offence under the PC Act, dehors the sentence of imprisonment as a sequal thereto, is a different matter.” The Hon’ble Apex Court further observed as under:-“Corruption by public servant has now reached a monstrous dimension in India. Its tentacles have started grappling even the institutions created for the protection of the republic. Unless those tentacles are intercepted and impeded from gripping the noral and orderly functioning of the public offices, through strong legislative, executive as well as judicial exercises the corrupt public servant could even paralyse the functioning of such institutions and thereby hinder the democratic policy. Proliferation of corrupt public servants could garner momentum to cripple the social order if such men are allowed to continue to manage and operate public institutions. When a public servant is 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. The mere fact that an appellate or revisional forum has decided to entertain his challenge and to go into the issues and findings made against such public servants once again should not even temporarily absolve him from such findings. If such a public servant becomes entitled to hold public office and to continue to do official acts until he is judicially absolved from such findings by reason of suspension of the order of conviction, it is public interest which suffers and sometimes, even irreparably. If such a public servant becomes entitled to hold public office and to continue to do official acts until he is judicially absolved from such findings by reason of suspension of the order of conviction, it is public interest which suffers and sometimes, even irreparably. When a public servant who is convicted of corruption is allowed to continue to hold public office, it would impair the morale of the other persons manning such office, and consequently that would erode the already shrunk confidence of the people in such public institutions besides demoralising the other honest public servants who would either be the colleagues or subordinates of the convicted person. If honest public servants are compelled to take orders from proclaimed corrupt officers on account of the suspension of conviction, the fallout would be one of shaking the system itself . Hence, it is necessary that the Court should not aid the public servant who stands convicted for corruption charges to hold only (sic) public office until he is exonerated after conducting a judicial adjudication at the appellate or revisional level.” 5. In the case of Deputy Director of Collegiate Education (Admn.) vs. S. Nagoor Meera, 1995 (3) SCC 377 , the Hon’ble Apex Court held that if the accused Government servant is acquitted on appeal or other proceedings, the order can always be revised and if the Government servant is reinstated, he will be entitled to all the benefits to which he would have been entitled to had he continued in service. 6. A similar view has been taken by the Hon’ble Apex Court in State of Tamil Nadu vs. A. Jaganathan, 1996 (5) SCC 329 . In that case, on revision, the High Court suspended the sentence as well as conviction in exercise of powers under Section 389 (1) CrPC. On appeal to Hon’ble Supreme Court, the apex Court set aside the order by which conviction was suspended by the High Court and observed that in such cases the discretionary power to order suspension of conviction either under Section 389(1) or even under Section 482 CrPC should not be exercised. 7. In State of Maharashtra vs. Gajanan & Anr., 2004 (1) WLC (SC) Cri. 411, the Hon’ble Court held that the High Court has no room for distinguishing the law laid down by this Court in K.C. Sareen’s case (Supra), even on facts. 8. 7. In State of Maharashtra vs. Gajanan & Anr., 2004 (1) WLC (SC) Cri. 411, the Hon’ble Court held that the High Court has no room for distinguishing the law laid down by this Court in K.C. Sareen’s case (Supra), even on facts. 8. In Union of India vs. Atar Singh & Anr., JT 2001 (10) SC 212, the Hon’ble Apex Court held as under:-“It cannot be doubted that Section 389 confers a discretion on the appellate Court to decide the question of suspension of a conviction in a given case. But, if in exercise of that discretion, the Court suspends a conviction, it would always be open for this Court to examine the correctness of exercising of that discretion and pass appropriate orders, in the event, this Court comes to a conclusion that the discretion had not been appropriately exercised. Having regard to the facts and circumstances of the case and focusing our attention to the reasons, for which the High Court appears to have exercised discretion under Section 389 and has suspended the conviction, we have no hesitation in coming to the conclusion that the High Court has mechanically passed the order by suspending the conviction, and in the case in hand discretion ought not to have been exercised by suspending the conviction.” 9. The facts of instant case are almost identical to the facts of K.C. Sareen’s case (Supra), wherein the appellant was convicted for the offence under Section 13(2) of the Prevention of Corruption Act and sentenced to one year’s rigorous imprisonment and a fine of Rs. 500/-. In the instant case, apart from conviction and sentence under Sections 409, 467, 468 and 471 of the Indian Penal Code, the appellant-petitioner has also been convicted and sentenced for the offence punishable under Section 13(1) (d) read with Section 13(2) of the Prevention of Corruption Act, 1988. He has been awarded the sentence of one year’s rigorous imprisonment and a fine of Rs. 1,000/- and in default of payment of fine to further undergo one month’s imprisonment. Thus, the instant case is squarely covered on facts and law by the Judgment of the Hon’ble Apex Court in K.C. Sareen’s case (Supra). In this view of the matter, I do not find it a fit case for suspension of conviction awarded to the appellant. 10. Accordingly, the application seeking suspension of conviction is dismissed. Thus, the instant case is squarely covered on facts and law by the Judgment of the Hon’ble Apex Court in K.C. Sareen’s case (Supra). In this view of the matter, I do not find it a fit case for suspension of conviction awarded to the appellant. 10. Accordingly, the application seeking suspension of conviction is dismissed. However, the appellant may move for early hearing of appeal, if so advised.