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2017 DIGILAW 2791 (RAJ)

Radheyshyam v. State of Rajasthan

2017-12-14

GOVERDHAN BARDHAR

body2017
ORDER : Goverdhan Bardhar, J. The matter has come up on an application (Inward No. 26745/14.12.2017) filed by learned Govt. Advocate-cum-AAG appearing for the State under section 389 read with section 482 Cr.P.C., 1973for recalling the order dated 11.10.2017 passed by this Court in S.B. Criminal Suspension of Sentence Application No. 1148/2017 (in S.B. Criminal Appeal No. 1783/2017- Radhey Shyam v. State of Rajasthan through P.P). 2. Brief facts of the case are that against the impugned Judgment of conviction and sentence dated 26.09.2017 passed by the Court of learned Special Judge, Sessions Court, Prevention of Corruption Act No.1, Jaipur, in Regular Criminal Case No. 57/2004, State of Rajasthan v. Radheyshyam, the accused-applicant filed criminal appeal along-with application for suspension of sentence before this Court. 3. The aforesaid matter was listed before the Court on 11.10.2017 and this Court while admitting the appeal, calling for the record of the case, suspended the sentence and conviction of the accused applicant. 4. Learned Govt. Advocate-cum-AAG aggrieved with the order of suspending the sentence and staying order of conviction dated 11.10.2017 passed by this Court has filed the present application for recalling the said order. 5. Mr. B.N. Sandhu, learned Govt. Advocate-cum-AAG appearing for the State argued that the aforesaid application has been filed by him only to examine the correctness of the discretion. Learned Govt. Advocate averred in the application that as per the Judgments delivered by the Hon'ble Apex Court in the cases of K.C. sareen v. C.B.I., Chandigarh, (2001) 6 SCC 584 and State of Punjab v. Deepak Mattu, (2007)11 SCC 319 , the conviction awarded to the accused in corruption cases shall not be suspended/stayed. And the aforesaid Judgments delivered by the Hon'ble Apex Court were not brought in the notice of the Court on 11.10.2017. 6. I have heard learned counsel for the accused appellant/applicant, learned Government Advocate-cum-AAG appearing for the State and perused the order dated 11.10.2017 passed by this Court including the judgments cited by the learned Govt. Advocate-cum-AAG. 7. And the aforesaid Judgments delivered by the Hon'ble Apex Court were not brought in the notice of the Court on 11.10.2017. 6. I have heard learned counsel for the accused appellant/applicant, learned Government Advocate-cum-AAG appearing for the State and perused the order dated 11.10.2017 passed by this Court including the judgments cited by the learned Govt. Advocate-cum-AAG. 7. The Hon'ble Apex Court in the case of K.C. Sareen (supra) has held ad-infra:- "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, de hors the sentence of imprisonment as a sequel thereto, is different matter." 8. The Hon'ble Apex Court in the case of State of Punjab v. Deepak Mattu (supra) while following the observations made in the cases of K.C. Sareen (supra) and State of Maharashtra v. Gajanan and Anr., 2004 CriLJ 919 and relying upon the decision delivered in the case of Union of India v. Atar Singh, (2003) 12 SCC 434 was of the view that the order passed in a wrong, illegal premises is an apparent error, so is also in the instant case. 9. The Hon'ble Apex Court in the case of State of Punjab v. Deepak Mattu (supra) held in para Nos. 9 and 10 ad-infra:- "9. Relying on the aforementioned two decisions, an order is passed in a wrong, illegal premises. There is no impediment which comes on its way not to correct an apparent error. Article 362 of the Code of Criminal Procedure is only operative in a situation where a final order has been passed. The Code of Criminal Procedure confers inherent power in the High Court unlike the lower court's. 10. We, therefore, see no reason as to why the High Court cannot modify its own interlocutory order when the matter is yet to be finally disposed of." 10. It is pertinent to mention here that the Code of Criminal Procedure confers inherent power in the High Court unlike the lower Court's. There is no impediment which comes on its way not to correct an apparent error. It is pertinent to mention here that the Code of Criminal Procedure confers inherent power in the High Court unlike the lower Court's. There is no impediment which comes on its way not to correct an apparent error. The order dated 11.10.2017 passed by this Court is an interlocutory order as the main appeal is yet to be finally disposed of. 11. Taking into consideration overall facts of the case, the error apparent on the face of the record as also the judgments upon which the learned Govt. Advocate-cum-AAG placed reliance, the application No. 26745/14.12.2017 (Inward No.) filed for recalling of the order dated 11.10.2017 passed by this Court is partly allowed. The order dated 11.10.2017 passed by this Court to the extent of suspending/staying of conviction of the accused applicant is recalled. Rest part of the order dated 11.10.2017 passed by this Court to the extent of suspending the sentence of the accused-applicant shall remain as it is.