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2007 DIGILAW 796 (JHR)

Tribhuwan Prasad Singh v. State Of Jharkhand Through C. B. I.

2007-10-05

AMARESHWAR SAHAY, DILIP KUMAR SINHA, M.KARPAGAVINAYAGAM

body2007
JUDGMENT D.K. Sinha, J. 1. The Present Interlocutory Application has been preferred by the appellant Tribhuwan Prasad Singh for stay/ suspension of operation of conviction order dated 12.3.2007 passed by Shri V.S. Singh, Special Judge, C.B.I.-cum-13 th Addl. Sessions Judge, Dhanbad in R.C Case No. 16A/1986D whereby and whereunder the appellant was held guilty of the charges under Sections 409/477A I.P.C. as also under Section 5(2) r/w Section 5(i) (c) of the Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for two years each under Section 409 and 477A IPC. and further sentenced to undergo 1 year rigorous imprisonment and fine of Rs. 50Q/- under Sections 5(2) r/w 5(i)(c) of Prevention of Corruption Act. 198.9 with default stipulation to undergo simple imprisonment for three months. The provisional bail granted to the petitioner by the trial court after his conviction and sentence was confirmed on 9.04.2007 during the pendency of this appeal. 2. The learned Counsel submitted that after the impugned order of conviction and sentence the B.C.C.L, hereinafter referred to as the employer issued suspension order cum charge-sheet vide No. 378 dated 28 th March, 2007 against the petitioner calling upon to submit his Written explanation as to why not disciplinary action be taken against him for his conviction and sentence under Sections 409/477A I.P.C. and under the provisions of P.C Act which was a misconduct under Rules 26.1.19 and prescribes punishment (Annexure-1) and by the said letter he was put under suspension. 3. Mr. A. Allam with reference to Annexure-2 of the Interlocutory Application submitted that by the office order dated 6.4 2007 Shri S. Bhushan, Sr. Personnel Officer was appointed as Enquiry Officer to conduct into the enquiry into the charges as framed against the petitioner (Annexure-1) and Shri K.N. Ambastha, P.M. (Admn.) Katras Area, was appointed as presenting officer to represent the case before the Enquiry Officer. 4. With reference to Annexure-3, the learned Counsel Mr. Allam further pointed out that a charge-sheet vide reference No. IV/P.D./7608 dated 6.9 86 was; issued against the petitioner earlier from the office of G.M., Katras Area B.CCL. in respect of double payment to 19 workers of their L.T.C. bills incurring loss of Rs. 4. With reference to Annexure-3, the learned Counsel Mr. Allam further pointed out that a charge-sheet vide reference No. IV/P.D./7608 dated 6.9 86 was; issued against the petitioner earlier from the office of G.M., Katras Area B.CCL. in respect of double payment to 19 workers of their L.T.C. bills incurring loss of Rs. 30594/- to the management of B.C.C.L and his indulgence in fraud and dishonest practice besides other charges and the petitioner was held guilty in such enquiry and maximum punishment of dismissal from the job was awarded to him. He preferred mercy petition before the higher authorities of B.C.C.L against the order of dismissal which was ultimately allowed vide letter dated 24.12.90 (Annexure-4) and the petitioner was directed to report for duties to the General Manager. Katras Area without any condition whatsoever pending criminal prosecution before the Special Court. Mr. Allam submitted that the appellant was earlier punished by the Management in the departmental enquiry and thereafter he was reinstated unconditionally. In the; facts and circumstances it was not proper for the management to initiate a fresh departmental enquiry for the same set of charges for which he was punished, dismissed and thereafter reinstated. 5. According to Mr. Allam the appellant has been convicted by the Special Judge, C.B.I, his further departmental proceeding is not sustainable as he cannot be punished twice for the same and similar charges and hence it is expedient for the ends of justice that the operation of the order of conviction of the appellant passed by the Special Judge be stayed till the disposal of the appeal. 6. Relying upon Novjot Singh Sidhus case, reported in 2007(2) Eastern Criminal Cases 32 S.C. Mr. 6. Relying upon Novjot Singh Sidhus case, reported in 2007(2) Eastern Criminal Cases 32 S.C. Mr. Allam contended that the appellant in that case had sought stay of the order of conviction passed against him by the High Court on the ground that he was a sitting Member of Parliament on the date of his conviction and though he had not incurred any disqualification and could have continued as Member of Parliament by merely filing an appeal within the period of limitation but in order to maintain high standards in public life, he immediately resigned from the Membership of the Lok Sabha with the intention to seek a fresh mandate from the electorate by contesting the election for Membership of Lok Sabha which was due to take place shortly on account of his resignation, the Supreme Court of India suspended the order of conviction and sentence awarded against Navjot Singh Sidhu keeping in view the exigency that he would suffer irreparable injury in the event the appellant would not be able to contest for the seat of Lok Sabha which had fallen vacant only on account of his voluntary resignation by setting high standard in public life 7. Mr. Allam further relied on a decision reported in 1995 Eastern Criminal Case 307 SC The Apex Court in Rama Narang v. Ramesh Narang and Ors. held and observed: 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. But while granting a stay or suspension of the order of conviction the Court must examine the pros and cons and if it feels satisfied that a case is made out for grant of such an order, It may do so and In so doing It may, If It considers it appropriate, impose such conditions as are considered appropriate to protect the Interest of the shareholders and the business of the Company. 8. On the other hand, Mr. 8. On the other hand, Mr. Rajesh Kumar learned Standing Counsel C.B.I, opposed the contention by submitting that the appellant in the instant case has been convicted for the offence under Prevention of Corruption Act on corruption charges after a judicial adjudicatory process conducted by the Special Judge, C.B.I. Mr. Counsel referred to the settled law that a convict of graft charges of corruption should be treated as corrupt until he is exonerated by a superior court. He relied on the decision reported in 2001 Cr. Law Journal 4234. The Supreme Court of India in K.C. Sareen v. C.B.I., Chandigarh held as under: Though power to suspend an order of conviction is not alien to Section 389(1) of Code, its exercise should be limited to very exceptional circumstances. The Court has a duty to look at all aspects including ramifications of keeping such conviction in abeyance. Therefore, 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 against conviction 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. 9. The facts which emanate from the contents of the Interlocutory Application are that departmental proceeding and criminal prosecution before the Court of Special Judge, C.B.I, both were initiated simultaneously against the appellant. The appellant was held guilty in departmental proceeding and was dismissed from his service vide Companys letter No. IV/P.D./6575 dated 20/21.07.1987 but his mercy appeal was considered by the higher authorities which was ultimately allowed vide letter dated 24.12.90(Annexure-4) and was directed to report for duties to the General Manager, Katras Area without imposing any condition such as subject to the final decision of his criminal prosecution. Yet, according to the Interlocutory Application a charge-sheet has been served upon by putting him under suspension calling upon to show-cause as to why not disciplinary proceeding be initiated against him in view of his conviction and order of sentence passed against him for the offence under Sections 409/477A I.P.C. and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act (Annexure-1). 10. 10. I find from the perusal of both the charge-sheets Annexure-1 and Annexure-3 that the charges were distinct which cannot be co-related. In charge- sheet dated 6.9,1986 the allegation was of misappropriation and embezzlement of the amount of Rs 30,584/- pertaining to double payment, shown in the name of 19 workers by indulging in fraud and dishonest activities. Whereas in the charge- sheet dated 28 th March, 2007 the appellant was called upon to explain as to why not disciplinary action be taken against him for his conviction and sentence under Section 409/477A Indian Penal Code as also under Section 5(2) r/w 5(1)(c) of Prevention of Corruption Act which was a misconduct under rule 26.1.19 and prescribes punishment. 11. In the facts and circumstances, I find that neither Novjot Singh Sidhus case (supra) nor Rama Narangs case comes to rescue the appellant calling upon to pass an order suspending his sentence awarded by a competent court of law after a judicial adjudicatory process and that the appellant has been convicted for graft corruption charges. According to the K.C. Sareens case (supra), Judiciousness demands that he should be treated as corrupt unless he is exonerated by a superior court. 12. Under the facts and circumstances, I do not find that the case of the appellant comes in the category of Navjot Singh Sidhus case or Rama Narangs case so as to call for interference by exercising the jurisdiction for limited purpose under Section 389(1) Cr.P.C. by passing an order for the stay of the operation of sentence against the appellant during the pendency of this Cr. Appeal. There being no merit this Interlocutory Application No. 1377 of 2007 stands dismissed.