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2005 DIGILAW 836 (PNJ)

Kulwant Singh v. State of Punjab

2005-08-08

SURYA KANT

body2005
ORDER Surya Kant, J. (Oral) - In this application under Section 389 read with Section 482 Criminal Procedure Code, prayer been made for suspension of sentence as well as conviction imposed upon the applicant-appellant by the Special Judge, Patiala vide order dated 8.1.2005, whereby after holding him guilty under Section 7 of the Prevention of Corruption Act, 1988, the applicant-appellant was sentenced to undergo RI for a period of 2-1/2 years and to pay a fine of Rs. 1,500/-. Similarly, the application-appellant was also held guilty of an offence under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and was sentenced to undergo RI for a period for 2-1/2 years and to pay a fine of Rs. 1,500/-, though both the sentences were directed to run concurrently. 2. On February 3, 2005, the appeal against the aforementioned conviction and sentence was admitted and the sentence imposed upon the applicant-appellant was ordered to be suspended during the pendency of the appeal. Notice to the State of Punjab regarding suspension of conviction was also issued. 3. In support of the prayer for suspending the conviction, it has been argued that the applicant-appellant, who is working as a Junior Engineer in the Punjab State Electricity Board, has been falsely implicated and has been erroneously convicted by the Special Judge, Patiala, though there is hardly any admissible evidence on record to prove that the applicant-appellant took illegal gratification. It is contended that in case "conviction" of the applicant-appellant is not suspended, serious consequences like departmental proceedings to dismiss the applicant-appellant from service are likely to flow. Reliance has been placed upon orders dated 11.1.2005 passed in Crl.M.No. 29486/2004 in Crl.A.No. 1022-SB of 2004 (Deepak Mattu v. State of Punjab); dated 13.1.2005 passed in Crl.M.No. 2122/2005 in Crl.A.No. 2379-SB of 2003 (Dr. Charanjit Singh v. State of Punjab); and Jai Bhagwan v. State of Haryana, reported as 2004(3) RCR(Crl.) 512. 4. On the other hand, learned State counsel has opposed the prayer for suspension of conviction on the ground that the applicant-appellant having been found guilty of offences under the Prevention of Corruption Act, 1988, this Court should not pass any interlocutory order which allows him to continue in service and that too when the power of suspension of conviction under Section 389 Criminal Procedure Code, is required to be exercised sparingly. He has placed reliance upon an order passed by Division Bench of this Court dated 19.8.2004, passed in Crl.M.No. 18348 of 2004 in Crl.A.No. 461-DB of 1999 (Manga Ram @ Manga v. State of Punjab). 5. In Deputy Director of Collegiate Education (Administration), Madras v. S. Nagoor Meera, 1995(3) SCC 377, it was held by the Apex Court that power to dismiss to government servant under Clause (a) of the second proviso to Article 311(2) of the Constitution of India, can be invoked having regard to the conduct which has led to the conviction of such government servant on a criminal charge and since there can be no question to "suspend the conduct" by an appellate Court under Section 389 Criminal Procedure Code, therefore, such power is exercisable even when appeal against conviction is pending and execution of sentence has been suspended by the Appellate Court. Their Lordships further observed hat "the more appropriate course in all such cases is to take action under clause (a) of the second proviso to Article 311(2) once a government servant is convicted of a criminal charge and not to wait for the appeal or revision, as the case may be. If, however, the government servant-accused is acquitted on appeal or other proceeding, 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 be continued in service. The other course suggested, viz., to wait till the appeal, revision and other remedies are over, would not be advisable since it would mean continuing in service a person who has been convicted of a serious offence by a criminal Court". (emphasis applied) 6. The aforesaid view was reiterated by the Apex Court in Union of India and others v. Ramesh Kumar, 1997(7) SCC 514. 7. In B.R. Kapur v. State of T.N. and another, (2001)7 SCC 231, their Lordships of the Supreme Court held that "presumption of innocence" in favour of an accused person comes to an end when lower Court convicts and sentences him and no such presumption continues thereafter, even if the appeal against such conviction and sentence is pending and/or execution of the sentence has been suspended. 8. 8. In K.C. Sareen v. CBI, Chandigarh, (2001)6 SCC 584, the Apex Court held that though the power to suspend an order of conviction, apart from the order of sentence, is not alien to Section 389 Criminal Procedure Code, its exercise should be limited to very exceptional cases. Their Lordships further held 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 inspite of keeping the sentence of imprisonment in abeyance till the disposal of the appeal or revision". (emphasis applied). 9. In Union of India v. Attar Singh and another, (2003)12 SCC 434, the Apex Court held that order regarding suspension of conviction pending appeal should not be passed mechanically. An order vide which the High Court had suspended the conviction under Section 409 Indian Penal Code and Section 13 of the Prevention of Corruption Act, 1988, solely on the ground that non-suspension of conviction may entail removal of the delinquent public servant from office, was also set aside. 10. A Division Bench of this Court in Manga Ram @ Manga and another v. State of Punjab, (supra) also reiterated that the discretionary power vested in an appellate or revisional Court to suspend conviction of an accused should be exercised rarely having regard to the facts and circumstances of a case. 11. Following the dictum of law as laid by the Apex Court in the cases referred to above, I am of the view that the conviction of the applicant- appellant who has been found guilty of offences under Sections 7 and 13 of the Prevention of Corruption Act, 1988, cannot be suspended merely because the disciplinary action to dismiss him from service is likely to be initiated by the competent authority. Needless to say that if the applicant-appellant finally earns exoneration of the charges, the order, if any passed, dismissing him from service, can be revised by the competent authority with all consequential benefits. 12. Thus, no case for suspending the conviction of the applicant-appellant is made out. Dismissed. Appeal dismissed.