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2005 DIGILAW 222 (RAJ)

Mangi Lal v. State of Rajasthan

2005-01-25

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-By the instant application under Section 389, CrPC, applicant-appellants seek suspension of conviction imposed by the learned Additional Sessions Judge No. 3, Udaipur (for short, "the trial Court" hereinafter) against the applicant-appellants vide the Judgment and order dated 29.05.2002 passed in Sessions Case No. 16/2001, (56/2001), whereby they have been convicted for the offences under Sections 148, 324/149 and 326/149, IPC, and sentenced to rigorous imprisonment for one year and a fine of Rs. 500/-and in default of payment of fine further to undergo three months simple imprisonment for the offence under Section 148, IPC; one years rigorous imprisonment and a fine of Rs. 1,000/-and in default of payment of fine further to undergo three months simple imprisonment for the offence under Section 324/149, IPC; and four years rigorous imprisonment and a fine of Rs. 2,000/-and in default of payment of fine further to undergo one years simple imprisonment. 2. I have heard learned Counsel for the applicant-appellants and the Public Prosecutor for the State. Perused the Judgment and order impugned. 3. It has been contended by the learned Counsel for the appellant-applicants that applicant-appellant No. 2 Roop Lal was working as Kitchen Helper in Hotel Anand Bhawan, Udaipur and on account of his conviction, he has been put under suspension, which is resulting in great economic crysis to him. It has further been contended that on account of conviction, the appellants cannot get appointment anywhere and as such their conviction may be suspended during pendency of the appeal. Learned Public Prosecutor has seriously opposed the prayer for suspension of conviction and stated that as per settled proposition of law, conviction cannot be suspended. 4. The Honble Supreme Court, in Rama Narang vs. Ramesh Narang & Ors., 1995 (2) SCC 513 , held as under:-"Section 389(1), CrPC, empowers the Appellate Court to order that the execution of the sentence or order appealed against be suspended pending the appeal. What can be suspended under this provision is the execution of the sentence or the execution of the order. 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. What can be suspended under this provision is the execution of the sentence or the execution of the order. 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." 5. In Laxman Lal vs. State of Rajasthan, 2002 (1) CrLR 608 (Raj), this Court, relying upon the Judgment of Honble Apex Court in Rama Narangs case (Supra), held that it stands settled law that conviction can be suspended provided the conviction is executable. 6. In K.C. Sareen vs. C.B.I., Chandigarh, reported in 2001 (6) SCC 584 , the Honble Apex Court, in para 11, observed as under:-"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 exception 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 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 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, de hors the sentence of imprisonment as a sequel thereto, is a different matter." 7. But suspension of conviction of the offence under the PC Act, de hors the sentence of imprisonment as a sequel thereto, is a different matter." 7. The Honble Apex Court, in K.C. Sareens case (Supra), noticed a decision of Three Judges Bench of Apex Court in Rama Narangs case (Supra) and held that the ratio of the Judgment in Rama Narangs case (Supra), can be extracted as under:- "In certain situations the order of conviction can be executable, in the sense, it may incur 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 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. 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 suspension of the conviction and obtain a general order of stay and then contend the disqualification has ceased to operate." 8. The Honble Apex Court, in K.C. Sareens case (Supra), further observed as under:-"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 servant 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 demoralizing the other honest public servants who would either be the colleagues or subordinates to 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." 9. The Honble Apex Court further observed that:-"The above policy can be acknowledge as necessary for efficacy and proper functioning of public officer. 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." 10. 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." 10. In the case of Deputy Director of Collegiate Education (Admn.) vs. S. Nagoor Meera, 1995 (3) SCC 377, the Honble 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. 11. A similar view has been taken by the Honble Supreme 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 Honble Apex 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 of the Code should not have been exercised. 12. In view of the settled proposition of law, I do not find any merit in the application seeking suspension of the conviction of the applicant-appellants. 13. Consequently, the application for suspension of conviction is dismissed.