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2014 DIGILAW 393 (ORI)

Ashok Kumar Panda v. Republic of India

2014-07-03

S.K.MISHRA

body2014
ORDER 1. Heard learned counsel for the appellant and the learned Standing Counsel for the Republic of India. 2. This is an application under Section 389 of the Code of Criminal Procedure, 1973, hereinafter referred to as the Code for brevity, for staying of order of conviction of the appellant. The learned Special Judge (C.B.I.) Court No. III, Bhubaneswar in T.R. Case No. 5/7 of 2012-2013 has convicted the accused person for the offence under Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988, hereinafter referred to as the Act for brevity, for demanding and accepting bribe of Rs. 5,000/- for sanctioning the agricultural loan in favour of the complainant. 3. In course of hearing, learned counsel for the appellant painstakingly argued that at this is an exceptional case where the conviction of the appellant is patently illegal on the face of the impugned judgment. It is contended by the learned counsel for the appellant that the loan application has been seized by the C.B.I. after seven days of the trap. Hence, it is argued that there is no consideration for payment of illegal gratification by the complainant. Secondly, it is submitted that at the time of trap, a number of persons were gathered there and the accused absconded from the place of trap. However, though an FIR has been lodged against such an incident, no charge has been levelled against the appellant for concealing or causing disappearance of evidence punishable under Section 201 of the I.P.C. Thirdly, it is submitted that currency notes were not recovered from the appellant-petitioner right after the trap. However, the C.B.I. has established that on the next date, the appellant was apprehended and on appropriate chemical test, trace of phenolphthalein powder was found from the pant pocket of the appellant. On this score, learned counsel for the appellant submits that there is ample scope for staying the conviction of the appellant as on the face of the record he is entitled to be acquitted. However, in course of argument, learned counsel for the appellant relying upon the reported decision in the case of State of Maharashtra vs. Gajanan and Another, AIR 2004 SC 1188 : (2003) 12 SCC 432 has conceded that conviction should be stayed only in very exceptional cases. 4. However, in course of argument, learned counsel for the appellant relying upon the reported decision in the case of State of Maharashtra vs. Gajanan and Another, AIR 2004 SC 1188 : (2003) 12 SCC 432 has conceded that conviction should be stayed only in very exceptional cases. 4. Learned Standing Counsel for the C.B.I. on the other hand, argued that the ground that was urged by the learned counsel for the appellant-petitioner may be good grounds for the appeal to succeed, but these are not exceptional circumstances, for which conviction of the appellant should be stayed. It is further contended by the learned counsel for the C.B.I. that in the case of State of Maharashtra through C.B.I. Anti Corruption Branch, Mumbai vs. Balkrishna Dattatraya Kumbhar, in Criminal Appeal No. 1648 of 2012, Hon'ble Justice Dr. B.S. Chauhan, after taking into consideration several judgments of the Supreme Court, has held that relief of staying the order of conviction cannot be granted only on the ground that an employee may lose his job, if the same is not done. 5. On examination of the impugned judgment, it appears that the leaned Special Judge (C.B.I.) has taken into consideration all the materials available on record and has come to the conclusion that the C.B.I. has proved its case beyond all reasonable doubt and, therefore, he proceeded to convict the appellant for the offence described above. 6. In Rama Narang vs. Ramesh Narang and Others, (1995) 2 SCC 513 , the Supreme Court dealt with the said issue elaborately and held that if, in a befitting case, the High Court feels satisfied that the order of conviction needs to be suspended, or stayed, so that the convicted person does not have to suffer from a certain disqualification, provided for by some other statute, it may exercise its power in this regard because otherwise, the damage done cannot be undone. However, while granting such stay of conviction, the, Court must examine all the pros and cons and then, only if it feels satisfied that a case has in fact been made out for grant of such an order, it may proceed to do so and even while doing so, it may, if it so considers it appropriate, impose such conditions as are deemed appropriate, to protect the interests of the other parties. Further, it is the duty of the applicant to specifically invite the attention of the appellate Court as regards the consequences, which are likely to follow, upon grant of such stay, so as to enable it to apply its mind fully to the issue, since under Section 389(1) Cr. P.C. the Court is under an obligation to support its order in a manner provided therein, the same being, for the reasons to be recorded by it in writing. 7. In the case of State of Tamil Nadu vs. A. Jaganathan, AIR 1996 SC 2449 , the Supreme Court held that the order of the High Court, by which the order of conviction has been stayed for the sole reason that, in absence of such a stay, the accused was likely to lose his job. The Supreme Court has reversed the impugned order therein observing: "The High Court, though made an observation but did not consider at all the moral conduct of the respondent who was the Police Inspector, had been convicted under Sections 392, 218 and 466 IPC while the other respondents, who are also public servants, have been convicted under the provisions of the Prevention of Corruption Act. In such a case, the discretionary power to suspend the conviction either under Section 389 or under Section 482 Cr. P.C. should not have been exercised. The order impugned, thus, cannot be sustained." 8. In the case of K.C. Sareen vs. Central Bureau of Investigation, Chandigarh, (2001) 6 SCC 584 , the Supreme Court has held as follows:- "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 P.C. Act. 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 P.C. Act. No doubt when the appellate Court admits the appeal filed in challenge of the conviction and sentence for the offence under the P.C. 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 P.C. Act, dehors the sentence of imprisonment as a sequel thereto, is a different matter." 9. In the case of State of Maharashtra through C.B.I. Anti Corruption Branch, Mumbai vs. Balkrishna Dattatraya Kumbhar (supra), the Supreme Court has held that 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. The Supreme Court further held that 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, court not be undone as the employee/respondent if ultimately succeeds, could claim all consequential benefits. 10. Applying these principles to the case in hand, the Court comes to the conclusion that though the learned counsel for the appellant has made out certain points which may be good grounds for appeal to succeed, it does not justify not being exceptional in character to the suspension of conviction of the appellant. 11. In that view of the matter, this Court is of the opinion that the petition of the petitioner to suspend the conviction of the appellant is devoid of any merit and therefore, is dismissed. The Misc. Case is accordingly disposed of. Misc. Case disposed of.