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2005 DIGILAW 743 (JHR)

Junul Bhengraj v. State Of Jharkhand

2005-09-29

N.N.TIWARI, SUDHANSU JYOTI MUKHOPADHAYA

body2005
ORDER Narendra Nath Tiwari, J. 1. In this writ application, the petitioner have sought a writ of mandamus directing suspension of conviction and sentences, awarded to them in R.C. 59(A)/1996 by judgment dated 31.03.2004 passed by the 5th Special Judge, CBI (AHD Scam), Ranchi, till disposal of all the pending cases against the petitioners, mentioned in the enclosed chart Annexure 2, on the ground that in the said cases the petitioners are facing trial of the similar/identical kind of charges and in all the cases the respondents State/CBI is the informant and investigating agency. In R.C. 59(A) of 1996, the petitioners have been convinced under Sections 120-B, 420, 467, 468 of the Indian Penal Code and under Section 13(2) of the Prevention of Corruption Act and are sentenced to undergo rigorous imprisonment for 4 years for conviction under Section 120-B of the Indian Penal Code read with Section 420 of the Indian Penal Code. Besides the same, the petitioners Braj Bhusahan Prasad and Mahendra Prasad have been sentenced to undergo rigorous imprisonment for 4 years under Section 467 of the Indian Penal Code and for 5 years under Section 468 of the Indian Penal Code and to pay fine of Rs. 20,000/-(Rupees Twenty Thousand) each under Section 467 of the Indian Penal Code and in default to undergo simple imprisonment for 6 months; petitioner-Junul Bhengraj has been sentenced to undergo rigorous imprisonment for 4 years under Section 467 of the Indian Penal Code and rigorous imprisonment for 5 years under Section 468 of the Indian Penal Code and rigorous imprisonment for 1 year under Section 471 of the Indian Penal Code and to pay a fine of Rs. 20,000/- (Rupees Twenty Thousand) under Section 467 of the Indian Penal Code and in default of payment of fine to undergo simple imprisonment for 6 months; petitioner Ram Nandan Singh has been sentenced to undergo rigorous imprisonment for 4 years under Section 467 of the Indian Penal Code and 5 years under Section 468 of the Indian Penal Code and rigorous imprisonment for 1 year under Section 471 of the Indian Penal Code and to pay a fine of Rs. 5,000/- (Rupees Five Thousand) under Section 467 of the Indian Penal Code and in default to undergo simple imprisonment for 2 months; petitioners Basant Kumar Sinha, Anjani Kumar Singh and Rama Shankar Singh have been further sentenced to undergo rigorous imprisonment for 4 years under Section 467 of the Indian Penal Code and rigorous imprisonment for 5 years under Section 468 of the Indian Penal Code and rigorous imprisonment for 1 year under Section 471 of the Indian Penal Code and to pay a fine of Rs. 20,000/- (Rupees Twenty Thousand) each under Section 467 of the Indian Penal Code and in default to undergo simple imprisonment for 6 months; petitioner-Junul Bhengraj along with other two has been further sentenced to undergo rigorous imprisonment for 4 years under Section 13(2) of the Prevention of Corruption Act, 1988 read with Section 120-B of the Indian Penal Code. All sentences are to run concurrently and the period already suffered by them as under trial prisoners has been set off under Section 428 of the Code of Criminal Procedure. 2. The petitioners case is, that a first information report was lodged being Lohardaga Police Station Case No. 10 of 1996 on 5.2.1996 on the basis of a written report of Krishna Mohan Prasad followed by the investigation. The investigation of the case was subsequently undertaken by the Central Bureau of Investigation and on completion thereof charge sheet was submitted under Sections 120-B, 409, 420, 468, 471, 477-A, 201, 511 of the Indian Penal Code read with Sections 13(2), 13(1)(c) and 13(1)(d) of the Prevention of Corruption Act, 1988. Several other cases were also instituted against the petitioners alleging their involvement in which informant, accused, witnesses and the manner of occurrence and the prosecution case and the defence of the accused persons are almost same and identical. In all the cases the petitioners were made accused for abusing their official powers and/or for conspiracy to defalcate the Government amount constituting the offences punishable under Sections 120-B, 419, 420, 467, 468, 471, 406, 409 of the Indian Penal Code read with Sections 13(2), 13(1)(c) and 13(1)(d) of the Prevention of Corruption Act, 1988. The petitioners were remanded to jail custody in all the cases shown in the chart Annexure-2. The petitioners were remanded to jail custody in all the cases shown in the chart Annexure-2. According to the petitioners in the interests of justice the judgment dated 31.3.2004 passed in R.C. 59(A) of 1996 and appealed against in Criminal Appeal No. 13 of 2004 be stayed by issuing an appropriate writ/direction in the nature of mandamus awaiting disposal of all the aforesaid pending cases against them in view of the decision of the Honble Supreme Court in the case of State of Maharashtra v. Gajanan and Ors., . 3. At the time of hearing of the case, Mr. Rajesh Kumar, learned Counsel appearing on behalf of the C.B.I., seriously contested the petitioners prayer whereas Mr. K.K. Jha Kamal, learned Counsel appearing on behalf of the petitioners has pressed his points with all vigour. 4. Mr. K.K. Jha Kamal, learned Counsel for the petitioners, proceeding with his argument referred to the provisions of Section 389 of the Code of Criminal Procedure (hereinafter referred to as the Code) and submitted that pending an appeal, the Appellate Court has power to suspend conviction and sentence both, in exceptional circumstances and the instant case is one such case in which the conviction and sentence should be stayed during the pendency of the appeal and awaiting the final decision of the cases shown in chart Annexure 2, for the ends of justice. Learned Counsel further referred to the provisions of Chapter XIII of the Code, particularly, those contained in Sections 177, 178, 179, 184, 185 and 186 thereof. He has further referred to the provisions of Sections 219, 220, 221 and 223 of Chapter XVII of the Code and submitted that in view of the provisions contained in the said provision of the Code read with the provision of Section 389 of the Code as also the decision of the Supreme Court in State of Maharashta v. Gajanan and Anr., 2004 (3) JCR 227 (SC) : (2004) 2 PLJR 7 (SC), the conviction and sentence of the petitioners passed in RC 59(A) of 1996 is fit to be stayed during the pendency of the said appeal as well as till the disposal of the cases mentioned in Annexure 2. 5. Mr. 5. Mr. Rajesh Kumar, learned Counsel appearing on behalf of the C.B.I, on the other hand submitted that the petitioners have sought a writ of mandamus for suspension of conviction and sentence awarded against the petitioners in RC 59(A) of 1996 till disposal of all the cases pending against the petitioners as mentioned in Annexure 2 in which the petitioners, jointly or severally, have been lacing trial. Learned Counsel submitted that the relief sought for by the petitioners cannot be granted as the same are beyond the ambit and scope of the provisions of the writ of mandamus and the petitioners do not fulfill any of the essential conditions for issuance of such writ. Learned Counsel submitted that the judgment of conviction and order of sentence have been passed by a Court of Law and no legal or constitutional right of the petitioners has been infringed. The petitioners have an efficacious remedy to pray for suspension of sentence before the Appellate Court and in that view also the writ of mandamus cannot be issued by this Court. Learned Counsel referred to the chart (Annexue 2) showing the pendency of cases against the petitioners and submitted that besides the case in which the petitioners have been convicted and sentenced, the number of cases pending against each of them in different Courts of Special Judge, C.B.I. (Animal Husbandry Scam), Ranchi are as follows : Petitioner No. 1, 14 Cases Petitioner No. 2, 37 Cases Petitioner No. 3, 33 Cases Petitioner No. 4, 19 Cases Petitioner No. 5, 17 Cases Petitioner No. 6, 10 Cases Petitioner No. 7, 1 Case Learned Counsel submitted that the different cases against the petitioners arose out of different transactions of different times and places and in all the cases the charge of conspiracy is an allied charge and the main charges are under the Prevention of Corruption Act, in respect of separate and distinct transactions and as such they have nothing to do with each other. He further submitted that in similar situation accused Lalu Prasad and Others, had sought amalgamation of their respective cases into one case, taut their prayer was rejected, up to the Supreme Court vide Lalu Prasad and Ors. v. State, . He further submitted that in similar situation accused Lalu Prasad and Others, had sought amalgamation of their respective cases into one case, taut their prayer was rejected, up to the Supreme Court vide Lalu Prasad and Ors. v. State, . In the said decision the Supreme Court held that the charge of conspiracy being only an allied charge and the main charges being under the Prevention of Corruption Act, in respect of separate acts, i.e., money siphoned out of different Treasuries at different times and as such the same could not be amalgamated. There is exactly the same position in this case of the petitioners. Learned Counsel submitted that this writ petition has been maliciously filed in order to escape the consequences of judgment of a Court of Law. The petitioners have neither got any such legal nor the respondents have a legal duty to keep the effect of the judgment in abeyance on the ground aforesaid and as such there is no ground for issuing a writ of mandamus and the writ petition is liable to be dismissed summarily. 6. In order to appreciate the rival contentions, it is necessary to see the provisions of law and the decision cited by the learned Counsel for the petitioners. Sections 177, 178, 179, 184, 185 and 186 are the provisions contained in Chapter XIII of the Code. This Chapter deals with the jurisdiction of the Criminal Courts in inquiries and trials. Section 177 provides that every investigation shall ordinarily be inquired into and tied by a Court within whose local jurisdiction it was committed; Section 178 deals with the place of inquiry or trial; Section 179 deals with, offences triable whether act is done or consequences ensue; Section 184 deals with the place of trial for offences triable together; power to order cases to be tried in different session divisions is dealt with in Section 185; Section 186 provides that High Court will decide in case of doubt as to which district the inquiry or trial shall take place. From the reading the said provisions, no relevance Is visible for the purpose of deciding the question involved in this writ petition. All the said provisions are related to the inquiries and trials whereas in the instant case direction has been sought for staying the conviction and sentence which has been passed after the trial. From the reading the said provisions, no relevance Is visible for the purpose of deciding the question involved in this writ petition. All the said provisions are related to the inquiries and trials whereas in the instant case direction has been sought for staying the conviction and sentence which has been passed after the trial. Sections 219 and 223 of the Code, which have been referred to be the learned Counsel for the petitioners, comes within Chapter XVII of the Code, which deals with the charge Section 219 provides that the offences of same kind within a year may be charged together and tried at on trial; Section 220 speaks about trial for more than one offence; Section 221 provides that where it is doubtful what offence has been committed, the accused may be charged with having committed all or any of such offences and any number of charges can be tried at once; and Section 223 deals with joinder of charges against the same person. So the said provisions of Sections 219, 220, 221 and 223 of the Code relied on by the learned Counsel for the petitioners also do not throw any light of relevance for deciding the question posed in this writ petition as to whether this Court can issue mandamus for staying the conviction and sentence passed against the petitioners in RC 59(A) of 1996 till the disposal of all the cases pending against them. The petitioners, heavily, relied on a decision of the Supreme Court in State of Maharahstra v. Gajanan and Anr., 2004 (3) JCR 227 (SC) : (2004) 2 PLJR 7 (SC). In the said case the High Court, while entertaining a Criminal Appeal against an order of conviction, recorded by the Special Court against Gajanan and Anr. (respondents) for an offence under Section 7 of the Prevention of Corruption Act, had not only stayed the sentence, but had also stayed the conviction. In doing so, the High Court had distinguished the judgment of the Supreme Court in the case of K.C. Sareen v. C.B.I., Chndigarh, . On appeal, the Supreme Court held that the High Court had no room for distinguishing the law laid down in K.C. Sareens case in which it has been held that in very exceptional cases, the Court should exercise power of stay of conviction apart from the order of sentence. On appeal, the Supreme Court held that the High Court had no room for distinguishing the law laid down in K.C. Sareens case in which it has been held that in very exceptional cases, the Court should exercise power of stay of conviction apart from the order of sentence. The Supreme Court also observed that the said decision of K.C. Sareens case was approved and followed by the Supreme Court in Union of India v. Atar Singh and Anr. . The said decision in Gajanans case (supra) thus deals with the power of the Appellate Court, under Section 389 of the Code, to stay the conviction and sentence during the appeal holding that it is only in very exceptional cases, the Court should exercise the power of stay of conviction apart from the order of sentence and while doing so, the Court has to follow the direction and is duty bound to look at all aspects including the ramification of keeping such conviction in abeyance. The said decision of the Supreme Court also does not provide any guideline of the purpose of issuing a mandamus in exercise of jurisdiction under Article 226 of the Constitution by this Court for staying conviction and sentence against the petitioners till the conclusion of other pending cases against them. In course of argument, the learned Counsel for the petitioners submitted that since the petitioners are facing trial of similar nature in several eases in different Courts and if they are convicted and sentenced in all the cases and if the petitioners have to undergo imprisonment consecutively, it will be wholly unjust and unreasonable as the period of sentences in different cases, if added, might exceed the period of their lifespan. What is understandable from the said submission of the learned Counsel for the petitioners is that the petitioners are anticipating their convictions and sentences in the pending cases and also that they will have to undergo imprisonment and suffer the sentences consecutively. In my view, no maridamus can be issued on such anticipation, apprehension and speculations. The injuries anticipated by the petitioners are still in the womb of the future. In my view, no maridamus can be issued on such anticipation, apprehension and speculations. The injuries anticipated by the petitioners are still in the womb of the future. Moreover, Section 427 of the Code provides procedure for sentencing and as to when a sentence be passed in he subsequent cases on an offender already undergoing a sentence, whether it would run concurrently or consecutively and the same has to be considered and decided by the Court(s) passing the judgment/order of such conviction and sentence against the persons who is are already undergoing a sentence. No such writ/direction can be issued by this Court in exercise of jurisdiction under Article 226 of the Constitution. 7. In view of the above discussions, no relief can be granted, as prayed for by the petitioners in this writ petition and accordingly, this writ petition is dismissed. However, there shall be no order as to costs. S.J. Mukhopadhaya, A.C.J. 8. I agree.