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2014 DIGILAW 148 (DEL)

P. C. Mishra v. CBI

2014-01-15

V.K.JAIN

body2014
Judgment : V.K. Jain, J. 1. The appellant/ applicant before this Court was convicted under Section 7 & 13 (1) (d) read with Section 13(2) of Prevention of Corruption Act, 1988 (hereinafter referred to as “the Act”) and was sentenced to undergo RI for two (2) years each on each count and was also sentenced to pay fine of Rs.10,000/- each or to undergo SI for two (2 ) months each in default. The sentence awarded to the appellant has been suspended vide order dated 23.9.2010. Now this application has been filed by him seeking suspension of the conviction, primarily on the ground that the after retiring from service on 30.6.2010, he has not been able to join any employment due to his conviction though he is a senior citizen having a wife and a divorcee daughter besides aged parents, to be maintained by him. 2. The application has been opposed by the respondent – CBI stating therein that the appellant/ applicant was working as Assistant Commissioner, Sales Tax, when he demanded a sum of Rs.4,000/- as bribe from the complainant for passing an order in his favour was caught red - handed, having accepted the said bribe. The respondent in its reply placed reliance upon the decision of the Apex Court in K.C. Sareen versus CBI, Chandigarh [ (2001) 6 SCC 584 ]; State of Maharashtra versus Gajanan and another [ (2003) 12 SCC 432 ] and Central Bureau of Investigation, New Delhi versus M. N. Sharma [ (2008) 8 SCC 549 ] holding therein that the Appellate Court should not suspend the order of conviction during pendency of appeal, in a case of conviction on corruption charges. 3. In K.C. Sareen (supra), the Apex Court had before it the case of a government servant who was convicted under the provisions of Prevention of Corruption Act and was likely to lose his job in the event of conviction not being stayed. Rejecting the appeal of the convict, the Apex Court, inter alia, observed and held as under: “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. Rejecting the appeal of the convict, the Apex Court, inter alia, observed and held as under: “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 ... 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 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. 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 demoralizing 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 fall out 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 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. The above policy can be acknowledged as necessary for the efficacy and proper functioning of public offices. If so, the legal position can be laid down 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 in spite of keeping the sentence of imprisonment in abeyance till the disposal of the appeal or revision.” In Deputy Director of Collegiate Education versus S. Nagoor Meera [(1995) 2 SCR 308], the Apex Court, inter alia, observed as under: “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 l 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 he 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.” In M.N. Sharma (supra), a learned Single Judge of this Court, suspended the conviction of the appellant on the ground that in the absence of such an order, the respondent would lose his job. The order passed by this Court was set aside by the Apex Court relying upon its earlier decisions, including its decision in K.C. Sareen (supra) and Gajanan and another (supra). The Apex Court enunciated the legal position with respect to suspension of conviction as under: “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." (emphasis supplied) In State of Maharashtra through CBI, Anti Corruption Branch, Mumbai versus Balakrishna Dattatrya Kumbhar [ (2012) 12 SCC 384 ], the Apex Court referring to its earlier decision on the subject, set aside the order of the High Court suspending the conviction in a case of conviction on the charges of corruption. Allowing the appeal filed by CBI, the Apex Court, inter alia, observed and held as under: “ 14....Corruption is not only a punishable offence but also undermines human rights, indirectly violating them, and systematic corruption, is a human rights’ violation in itself, as it leads to systematic economic crimes. Thus, in the aforesaid backdrop, the High Court should not have passed the said order of suspension of sentence in a case involving corruption. Thus, in the aforesaid backdrop, the High Court should not have passed the said order of suspension of sentence in a case involving corruption. It was certainly not the case where damage if done, could not be undone as the employee/respondent if ultimately succeeds, could claim all consequential benefits. The submission made on behalf of the respondent, that this Court t should not interfere with the impugned order at such a belated stage, has no merit for the reason that this Court, vide order dated 9.7.2009 has already stayed the operation of the said impugned order.” 4. The appellant relies upon the judgment stitled K.Subramanian v. The Inspector of Police SPE - CBI/BS & FC Chennai 2012 Crl.L.J. 1673, Pravinkumar Paraskumar Gokhroo v. State of Gujarat & Anr. 2010 Crl.L.J. 477 and Dr.Shailendra Kumar Tamotia v. Republic of India 2010 Crl.L.J. 196. In K.Subramanian (supra), the case of the petitioner before the High Court was that he was the only bread earner of the family and his sons were studying and if he was dismissed from service, he would be put to irretrievable loss. However, in the case before this Court, the appellant/applicant has already superannuated and therefore, his circumstances are altogether different. In Pravinkumar (supra), the High Court granted bail on the ground that prima facie the case before it appeared to be a case wherein moral e of an honest officer and such other officers were more likely to be affected if the conviction was eventually set aside but the officer is removed from service in the meanwhile. It was noted that the Customs Department was proposing to terminate his service not on the basis of any evidence led in a departmental inquiry, but only on account of his conviction in the criminal case which was under challenge. In Shailender Kumar(supra), the appellant before the High Court was on the board of some companies as non – Executive Director and it was stated by him that in case the conviction is not suspended, he would be left with no option but to tender the resignation from those companies as well. He also stated that he had no other source of livelihood. The facts of this case are also different from the facts of these cases before this Court. He also stated that he had no other source of livelihood. The facts of this case are also different from the facts of these cases before this Court. In any case, in view of the decisions of the Hon’ble Supreme Court, as discussed in the preceding paragraphs, there would be no justification for suspending the conviction of the appellant who has been convicted under the provisions of Prevention of Corruption Act. 5. In the case before this Court, the respondent superannuated more than three (3) years ago. The suspension of conviction has been sought only on the ground that he has been unable to join any job, on account of his conviction on the charges of corruption. However, no material has been placed on record by the respondent, which would show that he was offered an employment but was not allowed to join, only on account of his having been convicted on the charges of corruption. Though the appellant claims that he has to maintain his aged parents and a divorcee daughter, he has not told the Court as to what are his assets and what are the assets and income of his daughter and other family members. In the absence of any financial details including the assets and income of the appellant and his family members, it cannot be known whether he is not in a position to sustain himself and his family members without finding a job at the age of more than 63 years. Even otherwise, the appellant has become over - age for any job in the government or in a public sector undertaking. Nothing prevents the appellant from pursuing some other vocation in case he is unable to find a job on account of his conviction. For the reasons stated hereinabove, I find no merit in this application and the same is hereby dismissed.