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2016 DIGILAW 3595 (PNJ)

Sucha Singh Langah v. State of Punjab

2016-12-21

M.M.S.BEDI

body2016
JUDGMENT Mr. M.M.S. Bedi, J.: - This order will dispose of an application under Section 389 Cr.P.C. praying for suspension of conviction imposed upon the applicant-appellant in appeal which stands admitted before this Court against the judgment of conviction dated February 11, 2015, convicting the appellant under Section 13(1) (e) read with Section 13(2) of the Prevention of Corruption Act, 1988 and Sections 467 and 468 IPC to undergo RI for 3 years along with fine in the separate charge under the above said Sections, claiming that the appellant had been a former Cabinet Minister of the State of Punjab and now he has been given a ticket by the Siromani Akali Dal for 2017 Assembly Election by fielding him from Dera Baba Nanak constituency in Gurdaspur. It is averred in the application that conviction would be an impediment for the appellant and he would not be able to contest the election if the conviction is not stayed by this Court and the appellant would suffer an irreparable loss. In support of the application, a news item in vernacular has been appended showing the list of Siromani Akali Dal candidates for different constituencies. 2. While admitting the appeal on March 4, 2015, the sentence of the appellant was suspended vide order dated March 9, 2016. On March 4, 2015, an order was passed for hearing of the appeal within a period of 3 months with liberty to the counsel for the applicant- appellant to submit synopsis and brief written arguments in addition to oral submissions. Lower Court record had also been requisitioned. 3. When the application was taken up on December 12, 2016, counsel who had filed the appeal had sought permission to withdraw from the appeal. A notice was issued to the appellant who accepted the notice in the Court on the same day and another counsel Mr. Vivek K. Thakur who had filed power of attorney was permitted to represent the applicant. On December 17, 2016, notice of the application was given to Advocate General, Punjab. As per the directions dated March 9, 2015, the record was requisitioned with an objective to take up the appeal on merits. On receipt of record, the appeal was also taken up. 4. When the appeal was taken up, counsel for the applicant-appellant Mr. P.S. Hundal, Senior Advocate along with Mr. As per the directions dated March 9, 2015, the record was requisitioned with an objective to take up the appeal on merits. On receipt of record, the appeal was also taken up. 4. When the appeal was taken up, counsel for the applicant-appellant Mr. P.S. Hundal, Senior Advocate along with Mr. Vivek Thakur has appeared to press the application for suspension of conviction. From the record, it has also transpired that another appeal bearing CRA S-998-SB of 2015 has been filed by co-convicts. Learned Senior counsel as submitted that though the order has been passed by a Coordinate Bench for listing the appeal within a period of three months but the appeal is not fixed for final disposal till today. He has argued that even otherwise, it will not be feasible for disposing the said appeal today as there are 35 prosecution witnesses examined by the prosecution whereas 35 defence witnesses have been examined by the defence and appreciation of evidence and final disposal is not feasible. 5. It is already 4.00 o’clock and senior counsel for the appellant has only pressed for disposal of the application for staying the conviction of the appellant claiming that Section 8 of the Representation of People Act, for short ‘the Act’, confers a disqualification on the appellant on account of his conviction by the lower Court as the appellant was not a Cabinet Minister on the date of conviction, he will not fall under the exception of Section 8 (4) of the Act. 6. Counsel for the applicant- appellant has referred to the judgment in Rama Narang v. Ramesh Narang and others, (1995) 2 SCC 513 and has laid emphasis on the observations of the Apex Court in said judgment wherein the Apex Court has dealt with a case of a Managing Director of a Company who had been convicted for offence punishable under IPC and was sentenced for RI for 3 months. An appeal had been filed against the conviction order. The rights of the appellant in that case had been taken into consideration and it was observed that the stay of conviction was essential to avoid disqualification under Section 267 (C) of the Companies Act, 1967. An appeal had been filed against the conviction order. The rights of the appellant in that case had been taken into consideration and it was observed that the stay of conviction was essential to avoid disqualification under Section 267 (C) of the Companies Act, 1967. Counsel laid emphasis on the observations in the said judgment that the Appellate Court in the exercise of powers under Section 389 (1) Cr.P.C. has got power to stay the operation of the order of conviction if the order of conviction is a cause for disqualification as mentioned in Section 267 (2) of the Companies Act. The relevant observations of the Apex Court, as per counsel for the appellant, are as follows:- “Although that issue in the instant case recedes in the background because High Courts can exercise inherent jurisdiction under Section 482 of the Code if the power was not to be found in Section 389(1) of the Code. We are, therefore, of the opinion that the Division Bench of the High Court of Bombay was not right in holding that the Delhi High Court could not have exercised jurisdiction under Section 482 of the Code if it was confronted with a situation of there being no other provision in the Code for staying the operation of the order of conviction. 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 persons 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 of 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.” Counsel for the appellant submits that in view of the above said observations of the Apex Court, the conviction of the appellant may be stayed subject to the final decision of the appeal to protect the interest of the appellant. He has also referred to the judgment in Navjot Singh Sidhu v. State of Punjab and another, [2007(1) Law Herald (P&H) 561 (SC) : 2007(1) Law Herald (SC) 595] : 2007 (1) RCR (Crl.) 836, in which Navjot Singh Sidhu had been convicted and sentenced to undergo RI for 3 years under Section 304 Part II IPC by High Court, while he had been acquitted by the trial Court. During the pendency of his appeal against conviction before the Supreme Court he had prayed for suspension of conviction and sentence on the ground that he wanted to contest election for the seat of MP. The Apex Court had observed that he was a member of MP and has been convicted under Section 304 Part II IPC and sentenced to imprisonment for 3 years as such he could avoid disqualification by filing an appeal within 3 months from the date of his conviction by High Court in context to the provisions of sub-Section 4 of Section 8 of the Act. He could have used Section 8 (4) of the Act and avoided resigning as member of LokSabha because Section 8 (4) of the Act gave immunity for 3 months so that the convict could file an appeal against the order of High Court challenging his conviction and sentence in the Appellate Court. Taking into consideration the entire circumstances, the Apex Court found it a fit case where the order of conviction passed by the High Court deserved to be suspended. 7. Counsel has placed reliance on a judgment of Dr. Taking into consideration the entire circumstances, the Apex Court found it a fit case where the order of conviction passed by the High Court deserved to be suspended. 7. Counsel has placed reliance on a judgment of Dr. Shailendra Kumar Tamotia v. Republic of India, 2012 (7) RCR (Crl.) 806 wherein Orissa High Court had taken into consideration, the request for stay of conviction by considering the ramification/consequences of the facts of the case i.e. appellant in that case had retired from public service and was no longer in public service for the last 12 years as such order of conviction could not possibly enable him to restore any public post as such he will have no chance ever going back to public office which he held long time back. 8. The observations of the Apex Court in State of Punjab v. Deepak Mattu, [2007(4) Law Herald (P&H) 3265 (SC) : 2007(5) Law Herald (SC) 3634] : (2007) 11 SCC 319 , has been taken into consideration in the aforesaid judgment and the observations of the Supreme Court that Court has a duty to look at all aspects including the ramifications keeping the conviction in abeyance and that the exercise of power for staying the conviction in Prevention of Corruption Act cases should be limited to very exceptional cases. 9. Mr. Hundal, Senior Advocate has also placed reliance on the judgment of State of Maharashtra through CBI, Anti Corruption Branch, Mumbai v. Balakrishna Dattatrya Kumbhar, [2012(6) Law Herald (SC) 4764] : (2012) 12 SCC 384 in which the respondent had been convicted in a corruption case. The Bombay High Court had passed an order of suspension of conviction ordered under Section 13 of the Prevention of Corruption Act. While setting aside the order of the High Court, it was observed as follows:- “12. 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 examined 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.” 10. On the other hand, State counsel has relied upon the judgment of the Supreme Court in Deepak Mattu’s case (supra) in support of his contention that High Court can suspend the conviction in very exceptional cases and that mere delay in disposal of appeal, is not a reason to suspend conviction. In that case the Apex Court was dealing with an application for suspension of conviction in a case of a public servant who was seeking suspension of sentence pending appeal on the ground that a long time may be taken by the High Court to decide the appeal and that there are good points available to argue in the appeal. The Supreme Court had taken into consideration the decision of an earlier judgment of K.C. Sareen v. CBI Chandigarh, 2001(3) RCR (Crl.) 718 and reiterated the following observations:- “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. 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 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. 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. 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. 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.” 11. I have considered the contention of learned counsel for the appellant as well as State counsel and gone through the case law referred to by counsel for the appellant as well as State counsel. The main emphasis of Mr. Hundal, learned senior counsel for the applicant- appellant is that an irreparable loss will be suffered by the appellant in case he is denied an opportunity to contest the forthcoming assembly elections. He has submitted that the notification for forthcoming elections will be issued in near future before the first week of January 2017 as the last elections had been held 5 years ago on February 5, 2012 and a notification is expected to be issued 45 days prior to the date of election. Expecting that the election process will be initiated in the month of December 2016/January 2017 and on account of the statutory ineligibility conferred upon the appellant by virtue of provisions of Section 8 of the Act on account of having been convicted under Prevision of Corruption Act, the appellant will be disqualified under Section 8 (1) (m) of the Act. 12. 12. I have also considered the contention of learned senior counsel for the applicant- appellant who has referred to the judgment of Rama Narang’s case (supra), Dr. Shailendra Kumar Tamotia’s case (supra) and Navjot Singh Sidhu’s case (supra). There is no dispute regarding the proposition that an Appellate Court in the exercise of powers under Section 389 Cr.P.C. has got jurisdiction to suspend the conviction. The element of loss of an opportunity to exercise a legal right depending upon the existence/suspension of a conviction order is not just a formal order but the said relief can be granted by the Appellate Court in exceptional cases and such a power has to be exercised with great circumspection and caution for the purpose of which the appellant must satisfy the Court as regards the evil that is likely to fall on him. Another important factor which appears to be relevant for deciding application for suspension of conviction would be to assess whether a damage likely to be caused would be an irreparable damage not likely to be undone if ultimately this appeal succeeds. So far as the public servant who has been convicted under Prevention of Corruption Act, it has been settled by the Supreme Court in Deepak Mattu’s case (supra) that High Court as Appellate Court can suspend the conviction in very exceptional cases and long delay in disposal of the appeal and prima facie existence of good points for arguments, will not constitute good grounds for suspension of conviction during the pendency of the appeal and that it is the duty of the Court to look at all the aspects including ramifications of keeping the conviction in abeyance. In BalakrishnaDattatryaKumbhar’s case (supra) the Supreme Court has held that an employee if ultimately succeeds in appeal against conviction, he could claim all the consequential benefits as such his case will not fall under a case where damage will be done in case conviction is not stayed and that the said damage was incapable of being undone because an employee if ultimately succeeds could claim all consequential benefits. 13. 13. A perusal of the provisions of the Representation of People Act, 1951 dealing with the disqualification on account of conviction in certain offences would indicate that w.e.f. January 7, 2003 sub-clause (m) has been inserted by Act No.9 of 2003, specifically providing that a person who has been convicted for an offence punishable under Prevention of Corruption Act, 1988, would be disqualified for contesting an election. The intention of legislature to include a conviction under Prevention of Corruption Act as a disqualification clearly depicts the objective that convicts under the above said special Act would acquire disqualification. 14. No doubt, the right to contest Parliamentary elections is a right subject to the statutory disqualifications laid down under the Representation of People Act. In Suresh Kalmadi v. UOI, 2011 (125) DRJ 9 a question had arisen whether a Parliamentarian facing a trial in judicial custody could be granted permission to attend Parliament while he was facing trial for charge under IPC and Section 13 of the Prevention of Corruption Act. Relying upon the observations in VineetNarain v. UOI, 1998(1) R.C.R.(Criminal) 357 : (1998) 1 SCC 226 , that the said right was denied observing that law does not classify offenders differently for treatment there under, including investigation of offences and prosecution for offences, according to their status in life - every person accused of committing the same offence is to be dealt with in the same manner in accordance with law, which is equal in its application to everyone. In view of said judgment, the appellant who was a public servant has to be dealt with like other public servants and has to be dealt with as per the judgment in Deepak Mattu’s case (supra) and BalakrishnaDattatryaKumbhar’s case (supra). 15. It is not out of place to notice that the judgment of Navjot Singh Sidhu’s case (supra) is not applicable to the facts of the present case as the provisions of Section 8 (1) (2) (3) and (4) of the Act have been taken into consideration by the Apex Court in the judgment of Lily Thomas v. UOI and others, [2013(4) Law Herald (SC) 2856] : (2013) 7 SCC 653 . In the said case, constitutional validity of the provisions of Section 8 (4) of the Act was examined as it provided a privilege to the sitting MPs or MLA or members of Legislative Council protecting them from disqualification and enable them to continue as members even though they were convicted of the offences mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act. The Apex Court has held that Articles 102(1) (e) and 191 (1) (e) of the Constitution of India have conferred specific powers on Parliament to make law providing disqualifications for membership of either House of Parliament or Legislative Assembly or Legislative Council of the States other than those specified in sub-clauses (a), (b), (c) and (d) of clause (1) of Articles 102 and 191 of the Constitution of India. The relevant observations of the Apex Court while holding Section 8 (4) of the Act unconstitutional, held as follows:- “32. The result of our aforesaid discussion is that the affirmative words used in Articles 102(1)(e) and 191(1)(e) confer power on Parliament to make one law laying down the same disqualifications for a person who is to be chosen as member of either House of Parliament or as a member of the Legislative Assembly or Legislative Council of a State and for a person who is a sitting member of a House of Parliament or a House of the State Legislature and the words in Articles 101(3)(a) and 190(3)(a) of the Constitution put express limitations on such powers of the Parliament to defer the date on which the disqualifications would have effect. Accordingly, sub-section (4) of Section 8 of the Act which carves out a saving in the case of sitting members of Parliament or State Legislature from the disqualifications under sub-sections (1), (2) and (3) of Section 8 of the Act or which defers the date on which the disqualification will take effect in the case of a sitting member of Parliament or a State Legislature is beyond the powers conferred on Parliament by the Constitution. 33. 33. Looking at the affirmative terms of Articles 102(1)(e) and 191(1)(e) of the Constitution, we hold that Parliament has been vested with the powers to make law laying down the same disqualifications for person to be chosen as a member of Parliament or a State Legislature and for a sitting member of a House of Parliament or a House of a State Legislature. We also hold that the provisions of Article 101(3)(a) and 190(3)(a) of the Constitution expressly prohibit Parliament to defer the date from which the disqualification will come into effect in case of a sitting member of Parliament or a State Legislature. Parliament, therefore, has exceeded its powers conferred by the Constitution in enacting subsection (4) of Section 8 of the Act and accordingly subsection (4) of Section 8 of the Act is ultra vires the Constitution.” 16. The above said observations are relevant for the decision of the present application as strict view has been taken in context to the provisions protecting the sitting MPs, MLAs or MLCs from disqualification on account of conviction as per provisions of Section 8 (1) (2) and (3) of the Act, enabling them to continue as members after the passing of order of conviction. Power to defer the disqualification of sitting MP/MLA or MLC under statute i.e. Section 8 (4) of the Act has been held to be unconstitutional by treating a candidate for the office of MP/MLA or MLC at par with a sitting member. Continuation of a sitting MP/MLA/MLC after conviction has been considered to be unconstitutional under the provisions of Section 8(4) of the Act. 17. In view of the observations of the Apex Court in Lily Thomas case (supra), I am of the considered opinion that the protection from disqualification on account of conviction cannot be granted casually to the applicant. 18. I have also considered the contention of learned counsel for the appellant that the appellant will suffer an irreparable loss in case he is not permitted to contest the forthcoming Assembly elections in the month of February 2017. When there is a statutory disqualification provided for a convict to contest the election, it will not be feasible for this Court to go contrary to the statute and protect the said person from disqualification as an interim measure. When there is a statutory disqualification provided for a convict to contest the election, it will not be feasible for this Court to go contrary to the statute and protect the said person from disqualification as an interim measure. In case the prayer is allowed, it may entail serious constitutional irregularities, if the main appeal is decided against the appellant. The possibility of deciding the appeal in three days, available prior to the winter vacation is not feasible. In case the appellants in the present appeal and the connected appeal are ready for addressing arguments and final disposal of the main appeals during the vacation, they may obtain special orders of the Hon’ble Chief Justice, and the same may be taken up for final disposal, if entrusted to this Court, subject to the availability of the counsel for the parties. 19. In view of the above, the application for suspension of conviction is dismissed.