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2012 DIGILAW 535 (PAT)

Munni Khatoon v. State of Bihar

2012-03-29

ASHWANI KUMAR SINGH, NAVANITI PRASAD SINGH

body2012
ORDER (Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH) I.A. No.577 of 2012 has been filed on behalf of the sole-appellant for stay of conviction. The appellant has been convicted under Sections-302/34/149 and 120B of the Indian Penal Code. The Trial Court has found that the deceased was allegedly having affair with the married daughter of the appellant. The deceased was invited to the house of the appellant, other relations of the deceased were locked outside the house and inside the house deceased was mercilessly beaten till he died. Upon these findings being established, the Trial Court convicted the appellant, her husband and other members of the family. Upon this appeal being filed against the said conviction and sentence by order dated 27.02.2012, we admitted the appeal and granted bail to the appellant thereby suspending the sentence only. 2. By this interlocutory application, the stay of conviction has been sought on the ground that the appellant is a Mukhiya, duly elected under the Bihar Panchayat Raj Act, 2006, and the conviction would disqualify her from continuing as such and for further election. 3. Mr. Jitendra Singh, learned Senior Counsel has vehemently argued that if the conviction is not stayed the appellant would suffer irreversible consequences. Learned Senior Counsel refers to a Division Bench judgment of this Court in the case of Sheo Parsan Dubey Vs. State of Bihar since reported in 2010 (4) PLJR 352 , wherein a person who had been convicted and sentenced under Section-302 of the Indian Penal Code, as a consequence whereof he was dismissed for service, this Court considered that there was no direct involvement of the appellant and noticing the case of the Apex Court in the case of Union of India Vs. B. Rama Murthy since reported in (1995) 2 Supreme Court Cases 530 stayed the conviction so that his services were restored. 4. We have gone through the said Division Bench judgment, with due respect and all humility, the attention of this Court was not drawn to the judgment of the Apex Court in the case of K.C. Sareen Vs. CBI, Chandigarh since reported (2001) 6 Supreme Court Cases 584 = AIR 2001 Supreme Court 3320 nor the judgment of the Apex Court in the case of Sanjay Dutt Vs. CBI, Chandigarh since reported (2001) 6 Supreme Court Cases 584 = AIR 2001 Supreme Court 3320 nor the judgment of the Apex Court in the case of Sanjay Dutt Vs. State of Maharashtra through CBI, Bombay since reported in (2009) 5 Supreme Court Cases 787 was brought to the notice of the Division Bench. In our view, if these two judgments had been cited the result would have been totally otherwise. In this connection, we may refer to paragraph-11 in the case of K. C. Sareen (supra) and what the Apex Court said, which is quoted hereunder:- “11. 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 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. 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 PC 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, dehors the sentence of imprisonment as a sequel thereto, is a different matter.” 5. We may then notice the case of Sanjay Dutt (supra) where the case of Navjot Singh Sidhu Vs. State of Punjab & Anr. since reported in (2007) 2 Supreme Court Cases 574 earlier decided by the Apex Court has also been considered. In the case of Navjot Singh Sidhu (supra), the Apex Court granted him permission to contest the election by staying his conviction, but when it came to the case of Sanjay Dutt (supra) the Court clearly found as against Sanjay Dutt. 6. In the case of Navjot Singh Sidhu (supra), the Apex Court granted him permission to contest the election by staying his conviction, but when it came to the case of Sanjay Dutt (supra) the Court clearly found as against Sanjay Dutt. 6. In the case of Navjot Singh Sidhu (supra) the Apex Court noticed that the appellant was acquitted by the Trial Court. Upon appeal, the High Court convicted them, inter alia, under Section-304, Part-II of the Indian Penal Code. The appellant was, thus, before the Apex Court. As per the Representation of Peoples Act, he could continue to be member of the Parliament and would be debarred only on fresh election, but he chose to resign and seek people’s mandate for which suspending the conviction became must. It is in this background the Apex Court suspended his conviction. Whereas in the case of Sanjay Dutt (supra) he was tried and found guilty under various Sections of TADA and Arms Act and was sentenced to six years rigorous imprisonment. Prayer for suspending the conviction was then made in the appeal pending before the Apex Court. The Apex Court declined to stay the conviction. In the present case, the appellant, who was Mukhiya, has been convicted and sentenced to life imprisonment by the Trial Court. 7. Here, we may notice that what has been done is clearly an honour killing by the family of the Mukhiya. It is because of this that the appellant, who is the Mukhiya, has been charged under Sections-120B, 302/34 and 149 of the Indian Penal Code. If she is held to be absolved of the charges and permitted to continue in the office of Mukhiya till she is honourably acquitted that would send a wrong message to the people. The situation is same where a public servant is convicted of corruption charges and prays for stay of his conviction so that he can continue in public office. There would be similarity with a person holding public office indulging in corrupt practice or honour killing. In this connection, we usefully refer to paragraph-12 of what the Apex Court said in the case of K. C. Sareen (supra), which is quoted hereunder:- “12. 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. In this connection, we usefully refer to paragraph-12 of what the Apex Court said in the case of K. C. Sareen (supra), which is quoted hereunder:- “12. 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. 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 servants 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 demoralising the other honest public servants who would either be the colleagues or subordinates of 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. 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. It is a different matter if a corrupt public officer could continue to hold such public office even without the help of a court order suspending the conviction.” 8. We may also notice the two other judgments of the Apex Court. In the case of State of Maharashtra Vs. Gajanan and another since reported in (2003) 12 Supreme Court Cases 432 the Apex Court held that it was only in exceptional cases that the conviction should be stayed. The power to stay conviction should not be used to facilitate Government servant to stay in service having been found guilty. Again in the case of Union of India Vs. Atar Singh and another since reported in (2003) 12 Supreme Court Cases 434, the High Court had suspended the conviction as the conviction would have entailed the appellant the punishment of removal from the Government Service, the Apex Court held that the High Court was not correct. It had acted mechanically and the order of the High Court was set aside. From these decisions, it is clear that the conviction entails as a matter of course certain consequences like removal from service and other disability. The disabilities and the consequences cannot be suspended by suspending conviction merely for the asking and only in exceptional cases can it be done. These decisions were not brought to the notice of the Court in the decision relied by the learned counsel for the appellant. 9. In that view of the matter, we are not impressed with the submissions made on behalf of the appellant. Accordingly, the prayer for stay of conviction is rejected and the interlocutory application stands dismissed.