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2014 DIGILAW 769 (AP)

T. Ramesh v. State rep. by Spl. PP. , CBI

2014-06-23

U.DURGA PRASAD RAO

body2014
Judgment : 1. In this petition filed under Section 389 Cr.P.C., the appellant/A1 seeks stay of conviction passed by the II Additional Special Judge for CBI cases, Visakhapatnam in his judgment dated 30-04-2013 in C.C.No.6 of 2007 convicting him and A2 for the offences under Sections 120B, 384 IPC and Sections 7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 (for short “PC Act”). 2. A1 is the Assistant Labour Commissioner (Central), Hyderabad and appellant/A2 is the Labour Enforcement Officer (Central), Rajahmundry. Prosecution case is thus: a) The Regional Labour Commissioner (Central), Hyderabad directed A1 and A2 to conduct inspections at various Central Government organisations/undertakings at Visakhapatnam particularly the work sites of contractors who were executing the contract works in those Central Government organisations/undertakings from 24-08-2006 to 26-08-2006. A1 and A2 pursuant to the aforesaid direction occupied room No.3 in HPCL guest house at Visakhapatnam. It is alleged that on 24-08-2006 and 25-08-2006 A1 and A2 visited work sites of the contractors in various Central Government undertakings/organisations like HPCL, Visakhapatnam, Port Trust etc. and demanded the contractors illegal gratification and accepted bribes totalling about Rs.60,000/-. They did not inspect the work sites seriously but made only eye-wash inspections and prepared deficient reports. b) On reliable information about collection of bribe by A1 and A2 from various contractors, a team of CBI officials conducted sudden and surprise search in room No.3 of HPCL guest house on 25-08-2006 in the presence of two independent mediators i.e. PW21—M.Satyanarayana and LW13—G.Siva Rama Krishna and seized an amount of Rs.60,000/- which was the bribe amount collected from various contractors from the possession of A1 and A2. A case was registered in R.C.15(A)/2006 against A1 and A2, investigated and tried and they were ultimately convicted and sentenced for the offences as stated supra. Hence, the appeal by A1. 3. While so, the petitioner in the instant petition seeks stay of conviction on the following submissions. a) Consequent to conviction passed by the trial court, the petitioner was kept under suspension by the department in exercise of powers conferred under Rule 10(1) of the Central Civil Services (Classification, control and Appeal) Rules, 1965 by its order dated 04.06.2013 and suspension order is being extended from time to time. a) Consequent to conviction passed by the trial court, the petitioner was kept under suspension by the department in exercise of powers conferred under Rule 10(1) of the Central Civil Services (Classification, control and Appeal) Rules, 1965 by its order dated 04.06.2013 and suspension order is being extended from time to time. b) While so, basing on the recommendation letter dated 10.01.2014 of UPSC, the Government of India, Ministry of Labour and Employment, New Delhi proposes to either dismiss or remove the petitioner from service under Rule 19(1) of Central Civil Services (Classification, Control and Appeal) Rules, 1965 on the sole ground that petitioner was convicted in the criminal case and in the appeal there is no stay of conviction from the Honourable High Court. Hence, the threat of dismissal is staring against the appellant/A1 which is revealed from the correspondence made by the competent authority under the advice of UPSC. c) The petitioner submits he has good case to contest in the appeal. He is at the verge of superannuation within a period of three years. In the event he is dismissed from service, his entire family which comprises himself, his wife and two children, will be subjected to much sufferance and hardship. If this Court orders stay of conviction, he will be allowed to continue in service though under suspension till finalisation of the pending criminal appeal or superannuation whichever is earlier. Otherwise appellant would suffer irreparable and irreversible loss and ultimately, even if he succeeds in the appeal there will be no use. Hence, the petition. 4. Heard arguments of Sri V.R.Machavaram, learned counsel for petitioner and Sri P.Kesava Rao, learned Special Standing Counsel for CBI. 5. The submission of learned counsel for petitioner is that the recommendation dated 10.01.2014 made by UPSC to the Secretary, Government India, Ministry of Labour & Employment, New Delhi would show that except the sole ground that petitioner was convicted in the criminal case which is pending consideration in this appeal, there is no other tenable reason for recommendation to impose the harshest penalty of dismissal from service. He submitted that petitioner had blemishless service all through and he has fair chances of succeeding in the appeal and in the meanwhile if he is dismissed from the service, he and his family have to suffer a lot and it will cause irreversible loss and injury to him and therefore, suspension of conviction may be ordered. 6. Per contra, learned Special Standing Counsel opposing the petition, vehemently argued that suspension of conviction is a rare order which shall not be granted for mere asking unless there exists exceptional circumstances where refusal to stay conviction would lead injustice and irreparable and irreversible loss to accused. He submitted that in a catena of decisions, Honourable Apex Court has held that threat of dismissal from service pending appeal is not an exceptional circumstance for warranting stay of conviction. On this aspect he relied upon the following decisions: 1. K.C.Sareen v. CBI., Chandigarh( (2001) 6 SCC 584 = AIR 2001 SC 320) 2. State of Maharashtra v. Balakrishna Dattatrya Kumbhar ( (2012) 12 SCC 384 ) 3. State of Maharashtra v. Gajanan and another ( (2003) 12 SCC 432 ) He further submitted that petitioner was guilty of moral turpitude and hence, he does not deserve stay of conviction as the stay of conviction and consequent reinstatement will affect the moral of other honest public servants. He further argued that if the petitioner feels the ensuing dismissal order is illegal and unjust, the remedy lies to him in a different Forum and in a different form but not before this appellate Court. He thus prayed to dismiss the petition. 7. In the light of above divergent submissions, the point for determination in this petition is: “Whether the petitioner deserves stay of execution of conviction pending appeal on the ground of impending dismissal from service?” 8. a) POINT: The fear of the petitioner is that on knowing about his conviction in the criminal case, the UPSC in its letter dated 10.01.2014 addressed to the Secretary to Government, Ministry of Labour and Employment, New Delhi, recommended for dismissal of the petitioner from service. Following it the department has issued a memo to him to submit his representation. Though he submitted his representation, the competent authority, it seems, determined to dismiss who is now under suspension and unless the stay of conviction is granted he will suffer irreparable loss. Following it the department has issued a memo to him to submit his representation. Though he submitted his representation, the competent authority, it seems, determined to dismiss who is now under suspension and unless the stay of conviction is granted he will suffer irreparable loss. Thus, the core issue is whether impending dismissal from service could be a ground for ordering stay of conviction. Hence, concerned law has to be perused. b) Admitting the power of appellate Court under Section 389(1) Cr.P.C. to order stay of conviction, a note of caution was circulated by Honourable Apex Court in its judgment in Ravikant s. Patil v. Sarvabhouma S.Bagali ( (2007) 1 SCC 673 )as below: “All these decisions, while recognising the power to stay conviction, have cautioned and clarified that such power should be exercised only in exceptional circumstances where failure to stay the conviction, would lead to injustice and irreversible consequences”. Thus, while reiterating the appellate Court’s power to stay conviction, the Apex Court cautioned that such power should be exercised only in exceptional circumstances i.e. non-exercise of such power may result in injustice and create irreversible consequences to the accused. c) On the aspect of issuing stay of conviction in an offence under Prevention of Corruption Act involving moral turpitude, the Apex Court in the case of K.C.Sareen (1 supra) deprecated granting of stay of execution of conviction and held thus: “…Though 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. The Court has a duty to look at all aspects including the ramifications of keeping such conviction in abeyance.” “… 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”. 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”. d) Then, on the aspect whether threat of dismissal from service would constitute an exceptional circumstance for awarding stay of conviction, the Supreme Court in Balakrishna Dattatrya Kumbha’s case (2 supra) held thus: “Thus, in view of the aforesaid discussion, a clear picture emerges to the effect that the appellate court in an exceptional case, may put the conviction in abeyance along with the sentence, but such power must be exercised with great circumspection and caution, for the purpose of which, the applicant must satisfy the court as regards the evil that is likely to befall him, if the said conviction is not suspended. The court has to consider all the facts as are pleaded by the applicant, in a judicious manner and examine whether the facts and circumstances involved in the case are such, that they warrant such a course of action by it. The court additionally, must record in writing, its reasons for granting such relief. 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. (Emphasis supplied) e) In Gajanan’s case (3 supra) also the Supreme Court expressed the same view. So, it is evident from the precedential jurisprudence that threat of removal from service cannot be accepted as an exceptional ground to hold as causing irreparable and irreversible loss to the accused for granting stay of conviction. f) In the instant case, as already stated supra, except that ground, petitioner has not made out any other ground to appeal the conscience of the Court. That apart, the petitioner was convicted for the offence under Prevention of Corruption Act which involves his moral turpitude. So, in any view of the matter, it is not a rare circumstance to grant the relief sought for. 9) In the result, Crl.A.M.P.No.653 of 2014 is dismissed.