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2006 DIGILAW 1396 (RAJ)

SUMER DAN v. STATE OF RAJASTHAN

2006-04-28

H.R.PANWAR

body2006
Judgment ( 1 ) APPELLANT-APPLICANT has filed the instant criminal miscellaneous application under Section 482 of the Code of criminal Procedure, 1973 (for short, the Code hereinafter)seeking suspension of conviction dated 31-12-2005 passed by the Additional Sessions Judge (Fast Track), Balotra, headquarters Barmer, by which the appellant has been convicted for the offences under Section 120-B IPC read with Sections 343, 323, 384, 326, 308 IPC and sentenced to various terms. ( 2 ) I have heard the appellant-applicant who is present in person, learned Public Prosecutor appearing for the State and the counsel appearing for the Central Bureau of Investigation. Appellant-applicant has filed an application treating the criminal miscellaneous petition as a petition under Section 389 (1) of the Code relying on a Division Bench decision of this court in Kanhaiya Vs. State of Rajasthan, 2991 (3) WLC (Raj.)411, wherein the Division Bench of this Court held that the appellate Court may suspend the order of conviction under section 389 (1) of the Code where it is capable to execution. Keeping in view the decision of the Division Bench of this Court, the instant criminal miscellaneous application is treated as an application under Section 389 (1) of the Code. ( 3 ) IT is submitted by the appellant-applicant that the substantive sentences awarded to him by the trial Court have already been suspended by this Court vide order dated 27-2-2006, however, the Superintendent of Police, Barmer has now issued a notice dated 31-3-2006 under rule 19 (1) of the rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short, the CCA Rules hereinafter) proposing to impose major penalty under rule 14 of the CCA Rules on the ground that the appellant-applicant has been convicted by the trial Court. The appellant-applicant submits that the superintendent of Police, Jalore, vide communication No. S/17/jalore/force/206/1729-32 dated 7-4-2006, has informed that in view of the Government Notification dated 24-5-2004, the appellant-applicant will be superannuated on attaining the age of 60 years on 30-4-2007 and according to the appellantapplicant, he is to be superannuated on 30-4-2007. Abruptly he received the notice from the Office of the Superintendent of police, Barmer dated 31-3-2006 proposing to impose major penalty under rule 14 of the CCA Rules on the ground of conviction standing against the appellant-applicant and, therefore, he, apprehending termination of his services, submits that the conviction may be suspended. Abruptly he received the notice from the Office of the Superintendent of police, Barmer dated 31-3-2006 proposing to impose major penalty under rule 14 of the CCA Rules on the ground of conviction standing against the appellant-applicant and, therefore, he, apprehending termination of his services, submits that the conviction may be suspended. ( 4 ) LEARNED counsel for the CBI submits that the appellant-applicant has been convicted on the evidence produced by the prosecution and, therefore, his employer, i. e. the Superintendent of Police, Barmer, is competent to impose the major penalty on the ground of his conviction and the authority concerned, exercising power, has issued a show cause notice to the appellant-applicant vide order dated 31-3-2006 and, therefore, suspending the conviction would frustrate the action of the department to impose major penalty. Learned counsel for the CBI also submits that the conviction cannot be suspended under Section 482 of the Code. He has relied on two decisions of the Honble Supreme Court in K. C. Sareen Vs. Central Bureau of Investigation, Chandigarh, 2001 (3) Crimes 399 (SC); and Union of India Vs. Atar Singh and ors. , JT 2001 (10) SC 212. ( 5 ) APPELLANT-APPLICANT has has relied on the decision of the Honble Supreme Court in Rama Narang Vs. Ramesh Narang and ors. , (1995) 2 SCC 513 ; Smt. Akhtari Bi Vs. State of M. P. , JT 2001 (4) SC 40; a Division Bench decision of this Court in kanhaiya Vs. State of Rajasthan (supra) and Surendra and ors. , 2006 WLC (Raj.) UC 320. ( 6 ) A Division Bench of this Court, in Kahhaiya Vs. State of Rajasthan (supra), held that a close look at Section 389 (1) of the Code demonstrates that the Legislature provides for suspension of the rigour of the judgment of the trial Court pending disposal of appeal. There may be cases where conviction may not be of any effect pending the decision of appeal and the concvict in such a case may only seek suspension of the execution of sentence. But there may be cases where conviction becomes disqualification unless it is ceased to operate. Such a situation necessitates the suspension of conviction till the disposal of th appeal. But there may be cases where conviction becomes disqualification unless it is ceased to operate. Such a situation necessitates the suspension of conviction till the disposal of th appeal. It is well settled that once the conviction and sentence are set aside in appeal, the acquittal dates back to the date of conviction and it is wipped off from that date. When the order of conviction rendereed by the trial court does not attain finality during the pendency of the appeal and after the appeal is allowed the order of acquittal relates back to the date of the order of conviction, then why should we consider the words order appealed against incorporated in section 389 (1) in a narrow sense as to exclude conviction ? Where the effect of order of conviction entails disqualification from contesting the election or termination from the services, the appellate court on specific request made in this regard by the convict, may suspend the conviction after assigning the reasons. The appellate court may suspend the order of conviction under section 389 (1) of the Code where it is capable of execution. ( 7 ) RELYING on a Three Judge Bench decision of the honble Supreme Court in Rama Narang Vs. Ramesh Narang (supra), as also in Akhtari Bi Vs. State of M. P. (supra) and considering the fact that the appellant therein, who had been convicted under Section 326 IPC with the aid of Section 149 IPC to undergo imprisonment and on the basis of order of conviction, the Western Railway, in order to terminate the services of the applicant therein, issued a notice under rule 14 (2) of the railway Servant (Discipline and Appeal) Rules, 1968. In view of likely hardship to employee by loss of service and facing the problem of starvation, the applicant prayed for suspension of order of conviction. This Court, considering the facts and circumstances, held that the order of conviction is capable of execution in the sense that it may result in termination of services of the applicant-appellant therein and, therefore, the conviction of the applicant-appellant therein was suspended till disposal of the criminal appeal. ( 8 ) IN Rama Narang Vs. This Court, considering the facts and circumstances, held that the order of conviction is capable of execution in the sense that it may result in termination of services of the applicant-appellant therein and, therefore, the conviction of the applicant-appellant therein was suspended till disposal of the criminal appeal. ( 8 ) IN Rama Narang Vs. Ramesh Narang (supra), a three Judge Bench of the Honble Supreme Court , while considering the provision of Section 389 (1) of the Code and section 267 of the Companies Act which provides that no company shall, after commencement of this Act, appoint or employ or continue the appointment of Managing Director or whole -time Director who is or had at any time, been convicted by a court for the offence involving moral turpitude and held that the operation of Section 267 would take effect as soon as conviction is recorded by a competent court of an offence involving moral turpitude. It was held that Sections 267, 274 and 283 constitute a code whereunder a Director, Managing Director and the whole-time Director are visited with certain disqualifications in the event of conviction. It was further held by the Honble Supreme Court that in such a case the power under Section 389 (1) of the Code could be invoked. In such situations the attention of th Appellate Court must be specifically invited to the consequences 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. The Apex Court further held as under:-That takes us to the question whether the scope of section 389 (1) of the Code extends to conferring power on the Appellate Court to stay the operation of the order of conviction. As stated earlier, if the order of conviction is to result in some disqualification of the type mentioned in Section 267 of the Companies act, we see no reason why we should give a narrow meaning to Section 389 (1) of the Code to debar the court from granting an order to that effect in a fit case. As stated earlier, if the order of conviction is to result in some disqualification of the type mentioned in Section 267 of the Companies act, we see no reason why we should give a narrow meaning to Section 389 (1) of the Code to debar the court from granting an order to that effect in a fit case. The appeal under Section 374 is essentially against the order of conviction because the order of sentence is merely consequential thereto; albeit even the order of sentence can be independently challenged if it is harsh and disproportionate to the established guilt. Therefore, when an appeal is preferred under Section 374 of the Code the appeal is against both the conviction and sentence and therefore, we see no reason to place a narrow interpretation on Section 389 (1) of the Code not to extend it to an order of conviction, although that issue in the instant case recedes to the background because High Courts can exercise inherent jurisdiction under Section 482 of the Code if the power was not to be found in Section 389 (1) of the code. We are, therefore, of the opinion that the division Bench of the High Court of Bombay was not right in holding that the Delhi High Court could not have exercised jurisdiction under Section 482 of the code if it was confronted with a situation of there being no other provision in the Code for staying the operation of the order of conviction. In a fit case if the High Court feels satisfied that the order of conviction needs to be suspended or stayed so that the convicted person does not suffer from a certain disqualification provided for in any other statute, it may exercise the power because otherwise the damage done cannot be undone; the disqualification incurred by Section 267 of the Companies Act and given effect to cannot be undone at a subsequent date if the conviction is set aside by the Appellate court. ( 9 ) IN Smt. Akhtari Bi Vs. State of M. P. (supra), Their lordships of the Honble Supreme Court held that the appeal being a statutory right, the trial courts verdict does not attain finality during pendency of appeal and in such a case, the trial is deemed to be continuing despite conviction. ( 9 ) IN Smt. Akhtari Bi Vs. State of M. P. (supra), Their lordships of the Honble Supreme Court held that the appeal being a statutory right, the trial courts verdict does not attain finality during pendency of appeal and in such a case, the trial is deemed to be continuing despite conviction. Their Lordships kept in abeyance the order of conviction and sentence passed against the appellant-applicant therein. ( 10 ) IN Surendra and ors. Vs. State (supra), the conviction of appellant-appellant Surendra, who was a government servant, has has stayed during pendency of the appeal. ( 11 ) IN K. C. Sareen Vs. CBI, Chandigarh (supra), the appellant therein was an officer of the Punjab National Bank. When he was posted at the Mewa Mandi (Amritsar) Branch of the bank, he was put in charge of the current account. During the said period he got himself involved in a prosecution along with some of his co-employees of the same bank for defrauding the bank to the tune of about Rs. 2 lac. He was tried and convicted for the offence under Section 13 (2) of the Prevention of corruption Act, 1988 apart from the offences under Sections 120, 201 and 420 IPC. On his conviction, his services came to be dismissed. He moved the High Court for suspension of conviction but his petition was dismissed. The matter was carried to the Honble Supreme Court. 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 (1) of the Code, its exercise should be limited to very exceptional cases. Merely because the convicted person files 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. The Honble Supreme Court noticed that corruption by public servants has now reached a monstrous dimension in india. Its tentacles have started grappling even the institutioins created for the protection of the republic. Unless those tentacles are intercepted and impeded from gripping the normal and orderly functions of the public office, through strong legislative, executive as well as judicial exercises, the corrupt public servants could even paralyse the function of such institutions and threby hinder the democratic policy. Its tentacles have started grappling even the institutioins created for the protection of the republic. Unless those tentacles are intercepted and impeded from gripping the normal and orderly functions of the public office, through strong legislative, executive as well as judicial exercises, the corrupt public servants could even paralyse the function of such institutions and threby 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 was 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 and held that when once conviction on a corrupt charge against a public servant is held, the Appellate or Revisional Court should not suspend the order of conviction during pendency of the appeal even if the sentence of imprisonment is suspended. ( 12 ) IN Union of India Vs. Atar Singh and Anr. (supra), the respondent therein was convicted under Section 409 IPC and section 13 of the Prevention of Corruption Act. On an appeal, the High Court, under Section 389 of the Code, suspended the conviction. On an appeal, the Honble Apex Court held that it cannot be doubted that Section 389 of the Code 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. Their Lordships held that having regard to the facts and circumstance of that case and focusing the 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 th conviction and in the case in hand discretion ought not to have been exercised by suspending the conviction. ( 13 ) IN K. C. Sareen Vs. CBI, Chandigarh (supra) and union of India Vs. Atar Singh and Anr. ( 13 ) IN K. C. Sareen Vs. CBI, Chandigarh (supra) and union of India Vs. Atar Singh and Anr. (supra), the convicts in both these cases were convicted for the offence punishable under the Prevention of Corruption Act and the charges being serious in nature, being higher officers in the financial institutions involving corruption of Rs. 2 lac, the Honble Apex Court declined to suspend the conviction. ( 14 ) IN the instant case, the appellant-applicant has been convicted with the aid of Section 120-B IPC for the offences punishable under the Indian Penal Code, noticed above. From the communication of the Superintendent of Police, Jalore dated 7-4-2006, the appellant-applicant is to be superannuated w. e. f. 30-4-2007, i. e. almost after one year. The appellant-applicant has already completed 59 years of age and presently he is under suspension. By a communication dated 31-3-2006, a show cause notice has been served upon the appellant-application by the Superintendent of Police, Barmer proposing to impose major penalty under rule 14 of the CCA Rules, which may include termination of services. If the conviction is not suspended, the consequence likely to fall on the appellant-applicant, on the basis of his conviction, would be termination of his services, who is otherwise to retire on 30-4-2007 i. e. after one year. Thus, the order of conviction, in the instant case, is capable of execution in the sense that in view of the notice dated 31-3-2006, it may result in termination of services of the appellant-applicant. In case the appellant-applicant succeeds in the appeal and his conviction and sentence are set aside, then in such an eventuality, the damage caused to him would not be able to be undone. ( 15 ) THE facts of the instant case are almost identical to those in Kanhaiyas case (supra ). In that case, the appellant therein was convicted for the offence under Section 326 IPC. ( 16 ) THE decisions relied on by the learned counsel for the CBI turn on their own facts as in both the cases, the services of the convicts therein had already been dismissed and by seeking suspension of conviction, they sought re-entry in the service. ( 17 ) APART from this, the convicts in those cases were convicted for the offences under the Prevention of Corruption Act. ( 17 ) APART from this, the convicts in those cases were convicted for the offences under the Prevention of Corruption Act. In the instant case, the appellant-application has not been convicted for the offence under the Prevention of Corruption Act. More so, the appellant-applicant in the instant case has not been convicted simplicitor for any offence but he has been convicted with the aid of Section 120-B IPC. He is to otherwise retire from the service after one year. The appeal filed by the appellant-applicant is of the year 2006 and is not likely to come up for hearing in near future for the reason that there are two more persons who have been convicted and sentenced along with the appellant-applicant. ( 18 ) KEEPING in view the Three Judge decision of th Honble Supreme court in Rama Narangs case (supra) and a decision of the division Bench of this Court in Kanhaiyas case (supra), in my view, the ends of justice would be met if the conviction of the appellant-applicant is suspended for a limited period upto 31-7-2006. ( 19 ) CONSEQUENTLY, the application filed by the appellantapplicant seeking suspension of conviction is partly allowed and it is directed that during pendency of the appeal, the order of conviction, so far it relates to the appellant-applicant Sumer Dan, shall remain suspended till 31. 7. 2006. The another application for treating the miscellaneous under Section 482 of the Code as an application under Section 389 (1) of the Code also stands allowed accordingly.