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2004 DIGILAW 99 (HP)

ASHOK GIRDHAR v. STATE OF H. P.

2004-05-17

M.R.VERMA

body2004
JUDGMENT M.R. Verma, J.—Since similar questions of law and facts are involved in both these applications, therefore, these are being disposed of by this common order. 2. The applicant-accused (hereafter referred to as the accused) in both these applications was tried on a charge under Sections 420, 468 and 471 read with Section 120-B, IPC, in Criminal Case No. 119/2 of 1997/91 and on a similar charge in Case No. 158/2 of 1997/91 in the Court of the learned Judicial Magistrate 1st Class, Kandaghat camp at Solan, alongwith other co-accused. 3. The sum and substance of the allegations against the accused is that he conspired with his co-accused to commit the aforesaid offences in the matter of advancing loans in the name of non-existent persons by forging the documents and using them as true and thereby alongwith his co-accused received the amount of lones. The trial Court convicted and sentenced the accused and some of the co-accused in case number 119/2 of 1997/91 under Sections 420, 468 and 471 read with Section 120-B, IPC whereas in case No. 158/2 of 1997/91 the accused and all his co-accused were convicted and sentenced under Sections 420 and 471 read with 120-B, IPC. The appeals preferred by the accused against his conviction and sentences were dismissed by the learned Sessions Judge. Therefore, the accused has preferred Revision Petition Nos. 210 and 211 of 2003 against his conviction and sentences which have been admitted for hearing. 4. These applications have been filed by the accused, one each in the said Revision Petitions, claiming that the orders of his conviction may be stayed till the disposal of the Revision Petitions on the grounds that because of the conviction he has been dismissed from service which order he has challenged before the Competent Authority by way of appeal but because of the pendency of the present petitions his departmental appeal is not being disposed of. Therefore, if his conviction is not suspended he will suffer irreparable loss and injury. 5. The applications have been resisted for the State. 6. I have heard the learned Counsel for the accused and the learned Deputy Advocate General for the respondent-State and have also gone through the relevant material placed on record. 7. Therefore, if his conviction is not suspended he will suffer irreparable loss and injury. 5. The applications have been resisted for the State. 6. I have heard the learned Counsel for the accused and the learned Deputy Advocate General for the respondent-State and have also gone through the relevant material placed on record. 7. It was contended by the learned Counsel for the accused that the Court while exercising powers under Section 389, Cr.P.C. can suspend the conviction to remove hardship or injustice. In the case in hand, the appeal of the accused is pending wherein either his dismissal from service is to be set aside or maintained but the appeal could not be decided because of conviction and the pendency of the Revision Petitions. Therefore, it is a case for suspension of the conviction of the accused. 8. On the other hand, the learned Deputy Advocate General has contended that only the execution of sentence or executable order can be stayed during the pendency of the appeal, therefore, an order incapable of execution, as conviction is, cannot be suspended. 9. Section 389, Cr.P.C, empowers the Appellate Court including the High Court to suspend the execution of sentence or order pending appeal and to release the convict on bail. A sentence awarded to the accused whether it is imprisonment or fine is always capable of execution, therefore, the Court can suspend the execution of the sentence under the provisions of the said Section. An order appealed against may or may not be executable. Such an order when not executable, the Court will have no power to suspend the operation of such order in exercise of the powers under Section 389, Cr.P.C. If, however, the order appealed against is capable of being executed, the Court will have the powers to suspend the operation of the order. Thus, the Court may in suitable and rarest of the rare case stay the operation of the order of conviction. 10. In Rama Narang v. Ramesh Narang and others (1995(2) Supreme Court Cases 513), the Apex Court while dealing with the question, as in hand, held as under:— "Section 389(1) empowers the Appellate Court to order that the execution of the sentence or order appealed against be suspended pending appeal. What can be suspended under this provision is the execution of the sentence or the execution of the order. What can be suspended under this provision is the execution of the sentence or the execution of the order. Does order in Section 389(1) mean order of conviction or an order similar to the one under Section 357 or Section 360 of the Code? Obviously the order referred to in Section 389(1) must be an order capable of execution. An order of conviction by itself is not capable of execution under the Code. It is the order of sentence or an 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. It is, therefore, fallacious to contend that on the admission of the appeal by the Delhi High Court the order of conviction had ceased to exist. If that be so why seek a stay or suspension of the order? 16. 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 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 reasons to be recorded by it in writing." 11. The above position had been reiterated by the Apex Court in Deputy Commissioner of Collegiate Education (Administration), Madras v. S. Nagoor Meera (1995 (3) Supreme Court Cases 377), wherein it has been held as follows: "Section 389 of the Code of Criminal Procedure, 1973 empowers the appellate Court to order that pending the appeal "the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond". Section 389(1), it may be noted, speaks of suspending "the execution of the sentence or order", it does not expressly speak of suspension of conviction. Even so, it may be possible to say that in certain situations, the appellate Court may also have the power to suspend the conviction—an aspect dealt with recently in Rama Narang v. Ramesh Narang. At pages 524 and 525, the position under Section 389 is stated thus: (SCC pp. 524-525, paras 15 and 16)". 12. However, it may be pointed out that an order of conviction when sought to be suspended, the accused has further to show that the order of conviction, if not suspended, will lead to some irreparable injury which once caused cannot in any manner be remedied or compensated in future. 13. In the case in hand, it is admitted case of the accused that because of his conviction he has already been dismissed from service on 26.9.2003. Therefore, the injury capable of being caused by the conviction of the accused has already been caused to him and is not likely to be re-caused. Thus, the consequence of the conviction of the accused has already followed. Therefore, this Court under Section 389 or 482, Cr.P.C, has no power to undo the result which has followed in the matter of service of the accused because of his conviction. 14. Insofar as the service appeal of the accused is concerned appellate authority is at liberty to exercise its discretion in the manner as warranted by law. The Court cannot come to the aid of the accused by suspending the conviction and thereby enabling him to get the dismissal order set aside. To say the contrary will mean to cause damage to the criminal justice system itself which interest is paramount in comparison to the interest of the accused. 15. In the case in hand, the dismissal is stated to be based entirely on the orders of conviction. If so, if the accused ultimately succeeds and his convictions are set aside he will be entitled to all the service benefits by taking recourse to appropriate remedies. Thus, no irreparable injury is likely to be caused to the accused by not suspending his conviction. 16. There is yet another reason for not suspending the conviction of the accused. If so, if the accused ultimately succeeds and his convictions are set aside he will be entitled to all the service benefits by taking recourse to appropriate remedies. Thus, no irreparable injury is likely to be caused to the accused by not suspending his conviction. 16. There is yet another reason for not suspending the conviction of the accused. In one case he has been convicted under Sections 420 and 471 read with Section 120-B, IPC and in another case he has been convicted under Sections 420, 468 and 471 read with Section 120-B, IPC. All these offences are not only of grave nature entailing severe punishment but also involve moral turpitude. In the event of conviction in such cases a person decidedly is not entitled for suspension of his conviction. 17. In State of Tamil Nadu v. A. Jaganathan (1996 (5) Supreme Court Cases 329), the Apex Court held as under : "In Rama Narang case the conviction and sentences both were suspended on the reasoning that if the conviction and sentences are not suspended the damage would be caused which could not be undone if ultimately the revision of the appellants of that case was allowed. But in the present case, we find that in the event the revisions against their conviction and sentences are allowed by the High Court the damage, if any, caused to the respondents with regard to payment of stipend etc. can well be revived and made good to the respondents. If such trifling matters are taken into consideration, we think, then every conviction will have to be suspended pending appeal or revision involving the slightest disadvantage to a convict. That being so the facts of the decision relied on have no application to the present case. This apart, the High Court though made an observation but did not consider all the moral conduct of the respondents inasmuch as respondent Jaganathan who was the Police Inspector attached to Erode Police Station has been convicted under Sections 392, 218 and 466 IPC, while the other respondents, who are also public servants have been convicted under the provision of Prevention of Corruption Act. In such a case the discretionary power to suspend the conviction either under Section 389 (1) or under Section 482 CrPC should not have been exercised. The orders impugned thus cannot be sustained.” 18. In such a case the discretionary power to suspend the conviction either under Section 389 (1) or under Section 482 CrPC should not have been exercised. The orders impugned thus cannot be sustained.” 18. In K.C. Sareen v. CB1, Chandigarh (2001 (6) Supreme Court Cases 584), the Apex Court held as follows : "11. The legal position, therefore, is this: 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 should be limited to very exceptional cases. Merely because the convicted person files an appeal in challenge of conviction the Court should not suspend 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 to the above legal position that we have to examine the question as to what should be the position when a public servant is convicted of an offence under the PC Act. No doubt when 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 sequel thereto, is a different matter. 12. Corruption by public servants 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 normal and orderly functioning of the public offices, through strong legislative, executive as well as judicial exercises the corrupt public servants could even paralyse the functioning of such institutions and thereby hinder the democratic polity. 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. 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. 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 the 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. It is a different matter if a corrupt public officer could continue to hold such public office even without the help of a Court order suspending the conviction. 13. The above policy can be acknowledged as necessary for the efficacy and proper functioning of public offices. If so, the legal position can be laid down that when conviction is on a corruption charge against a public servant the appellate Court or the revisional Court should not suspend the order of conviction during the pendency of the appeal even if the sentence of imprisonment is suspended. It would be a sublime public policy that the convicted public servant is kept under disability of the conviction in spite of keeping the sentence of imprisonment in abeyance till the disposal of the appeal or revision." 19. It would be a sublime public policy that the convicted public servant is kept under disability of the conviction in spite of keeping the sentence of imprisonment in abeyance till the disposal of the appeal or revision." 19. No doubt, in K.C. Sateens case the accused were convicted on charges of corruption, but securing money meant for poorer strata of the society by deceitful means i.e. forging the record, using it knowing it to be forged and thereby cheating the bank to deliver the money to the accused are of not lesser magnitude than a public servant demanding or pocketing illegal gratification. 20. In view of the above discussion, I am of the considered view that the accused is not entitled to have his convictions suspended. 21. As a result, both these applications are dismissed.