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Gujarat High Court · body

2019 DIGILAW 1080 (GUJ)

Maheshdan Natvardan Gadhvi v. State of Gujarat

2019-10-31

A.C.RAO

body2019
JUDGMENT : 1. Rule. Mr. L.B. Dabhi, the learned APP waives service of notice of rule for and on behalf of the respondent – State. 2. At the request of the learned advocate appearing for the respective parties, the present application is taken up for final hearing today. 3. The present application has been filed under Section 389 of the Code of Criminal Procedure (for short “the Cr.P.C.”) seeking stay of the implementation and execution of the impugned judgment and order of conviction and sentence dated 09.05.2019 passed by the Special Judge and 6th Additional Sessions Judge, Gondal at Gondal in Special (A.C.B.) Case No.03 of 2009 till hearing and final disposal of the Criminal Appeal No.1133 of 2019. 4. The brief facts leading to the present application are that the applicant was convicted and sentenced by the above referred judgment and order for the offence punishable under Section 7 of the Prevention of Corruption Act for 3 years of simple imprisonment and fine of Rs.10,000/- and in default thereof, further simple imprisonment for 6 months; and under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act for 3 years of simple imprisonment and fine of Rs.10,000/- and in default thereof, further simple imprisonment of 6 months. 4.1 Being aggrieved by the judgment and order of conviction and sentence dated 09.05.2019, the applicant has preferred the Criminal Appeal under Section 374 of the Cr.P.C. read with Section 27 of the Prevention of Corruption Act. The applicant had also preferred an application for suspension of conviction and sentence under Section 389 of the Cr.P.C., for releasing the applicant on bail till final adjudication of the Criminal Appeal. The said appeal came to be admitted by this Court and the sentence also came to be suspended by a common order dated 30.05.2019 passed by this Court. 5. At the time of argument, Mr.Sudhir Nanavati, the learned senior counsel appearing with Mr. Vikas Nair, the learned counsel for the applicant, contended that the departmental inquiry was also initiated against the applicant and the employer Government has issued a chow-cause notice that why the applicant should not be dismissed from the services. The said notice was relied by the applicant by his reply dated 09.07.2019. It is vehemently contended that till then the department has not taken any action against the present applicant. The said notice was relied by the applicant by his reply dated 09.07.2019. It is vehemently contended that till then the department has not taken any action against the present applicant. It is contended that the department had also initiated a separate departmental inquiry which is still pending. The inquiry report is submitted during the departmental proceedings and the said inquiry report is challenged by way of Special Civil Application No.4263 of 2018, which is pending before this Court. It is contended that from 2009 to 2013 the applicant was reinstated and he has rendered his services with the department. It is contended that if the order of conviction is not stayed the applicant would lose his job and therefore, the present application has been filed. It is prayed that the judgment and order of conviction and sentence passed by the trial court may be stayed. 5.1 In support of his submissions, Mr.Sudhir Nanavati, the learned senior counsel appearing for the applicant has relied on the judgment of the Apex Court in the case of K.C. Sareen vs. CBI, Chandigarh, reported in (2001) 6 SCC 584 , wherein it is held as under : “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 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. 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.” 5.2 Mr.Sudhir Nanavati, the learned senior counsel appearing for the applicant has also placed reliance on the judgment of the High Court of Manipur at Imphal in the case of L. Ango Anal vs. State of Manipur and Another reported in 2018 SCC OnLine Mani 180, wherein it is held as under : “The order dated 18-03-2005 suspending the petitioner in contemplation of a disciplinary proceeding was issued in view of the conviction of the petitioner in Special Trial Case No. 5 of 1990. However, disciplinary proceeding as contemplated in the order dated 18-03-2005 is yet to be initiated till date. No materials have been placed before this Court by the learned Government counsel indicating that the respondents had initiated the disciplinary proceedings. It is also a settled principle of law that the conviction on a criminal charge does not automatically entail dismissal, removal or reduction in the rank of the concerned Government servant.” 6. While opposing this application, Mr. L.B. Dabhi, the learned APP appearing for the State has contended that the order of conviction and sentence can be stayed in the rarest of the rare cases. The learned APP has drawn my attention to the judgment, which is relied upon by the learned counsel for the applicant in the case of K.C. Sareen (Supra). He has drawn my attention to paragraphs 13 to 15 of the said judgment. In paragraphs 13 to 15 of the said judgment, it is held as under : “13. 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. 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. 14. We are fortified in holding so by two other decisions of this Court. One is Deputy Director of Collegiate Education (Admn.) vs. S. Nagoor Meera. The following observations of this Court are apposite now: (SCC p. 381, para 9) “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 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.” 15. The other decision is State of Tamil Nadu vs. A Jaganathan which deals with the case of some public servants who were convicted, inter alia, of corruption charges. When the appeal, filed by such public servants, was dismissed the High Court entertained a revision and ordered suspension of the sentence as well as the order of conviction, in exercise of the powers under Section 389(1) of the Code, taking cue from the ratio laid down in Rama Narang vs. Ramesh Narang. When the appeal, filed by such public servants, was dismissed the High Court entertained a revision and ordered suspension of the sentence as well as the order of conviction, in exercise of the powers under Section 389(1) of the Code, taking cue from the ratio laid down in Rama Narang vs. Ramesh Narang. But when the State moved this Court against the order of suspension of conviction, a two- Judge Bench of this Court interfered with it and set aside the order by remarking that in such cases the discretionary power to order suspension of conviction either under Section 389(1) or even under Section 482 of the Code should not have been exercised.” 6.1 The learned APP has also placed reliance on the judgment of the Apex Court in the case of Sanjay Dutt vs. State of Maharashtra reported in (2009) 5 SCC 787 , wherein, in paragraphs 10 and 11, it is held as under : “10 We have carefully considered the contentions advanced by the petitioner. The petitioner has been convicted for serious offences. Of course, his conviction and sentence have been challenged before this Court in an appeal. Though our attention was drawn to the various findings recorded by the Special Judge and also the nature of evidence adduced by the prosecution, we do not propose to consider these facts at this stage as it may seriously prejudice either of the parties when the appeal filed by the petitioner is considered by this Court. 11. The petitioner is a well-known cine artist and because of his contribution to art and cinema he has got large number of 6 fans throughout the country and abroad. His father was also a well-known film actor and he was deeply involved in politics. At one point of time, petitioner’s father was Minister in the Union Cabinet. The petitioner is not a habitual criminal nor it has been brought to our notice that he had involved in any other criminal case.” 6.2 The learned APP has also relied on the judgment of the Apex Court in the case of Government of Andhra Pradesh vs. B. Jagjeevan Rao reported in (2014) 13 SCC 239 , wherein, in paragraph 10, it is held as under : “10. In the case at hand, the respondent was convicted under Section 7 and 13(1)(d) read with Section 13(2) of the Act and sentenced to one year rigorous imprisonment. In almost a similar case in S. Nagoor Meera, a two-Judge Bench, after referring to the conceptual mandate of Article 311(2) and after referring to the dictum in Shankar Dass v. Union of India has expressed thus : “10. What is really relevant thus is the conduct of the government servant which has led to his conviction on a criminal charge. Now, in this case, the respondent has been found guilty of corruption by a criminal court. Until the said conviction is set aside by the appellate or other higher court, it may not be advisable to retain such person in service. As stated above, if he succeeds in appeal or other proceeding, the matter can always be reviewed in such a manner that he suffers no prejudice. 11. The Tribunal has given yet another reason for quashing the show-cause notice viz. that whereas the conviction of the criminal court was on 4-2-1991, the impugned show-cause notice was issued only on 27-10-1993. The appellant has explained that though the respondent (sic appellant) had come to know the conviction soon after the judgment of the criminal court, there was a doubt whether action can be taken against the respondent in view of the order of the High Court suspending the sentence. It is stated that after obtaining legal advice, the show-cause notice was issued. In our opinion, the delay, if it can be called one, in initiating the proceedings has been properly explained – and in any event, the delay is not such as to vitiate the action taken.” 6.3 The learned APP has also placed reliance on the judgment of the Apex Court in the case of Shyam Narain Pandey vs. State of Uttar Pradesh reported in (2014) 8 SCC 909 , wherein it is held as under : “5. It has been consistently held by this Court that unless there are exceptional circumstances, the appellate court shall not stay the conviction, though the sentence may be suspended. There is no hard and fast rule or guidelines as to what are those exceptional circumstances. It has been consistently held by this Court that unless there are exceptional circumstances, the appellate court shall not stay the conviction, though the sentence may be suspended. There is no hard and fast rule or guidelines as to what are those exceptional circumstances. However, there are certain indications in the Code of Criminal Procedure, 1973 itself as to which are those situations and a few indications are available in the judgments of this Court as to what are those circumstances. 7. In Ravikant S. Patil v. Sarvabhabhouma S. Bagali, a three-Judge Bench of this Court has held that: (SCC p. 681, para 6) “16.5. ….. the power to stay the conviction should be exercised only in exceptional circumstances where failure to stay the conviction would lead to injustice and irreversible consequences.” 8. In Navjot Singh Sidhu v. State of Punjab, following Ravikant S. Patil case, at paragraph-6, this Court held as follows: (Navjot Singh Sidhu case, SCC pp. 581-82) “6. The legal position is, therefore, clear that an appellate court can suspend or grant stay of order of conviction. But the person seeking stay of conviction should specifically draw the attention of the appellate court to the consequences that may arise if the conviction is not stayed. Unless the attention of the court is drawn to the specific consequences that would follow on account of the conviction, the person convicted cannot obtain an order of stay of conviction. Further, grant of stay of conviction can be resorted to in rare cases depending upon the special facts of the case.” 9. In State of Maharashtra v. Balakrishna Dattatrya Kumbhar, referring also to the two decisions cited above, it has been held at paragraph-15 that : (SCC p. 389) “15. …... 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. 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.” 10. In State of Maharashtra v. Gajanan and Union of India v. Atar Singh, cases under the Prevention of Corruption Act, 1988, this court had to deal with specific situation of loss of job and it has been held that it is not one of exceptional cases for staying the conviction. 11. In the light of the principles stated above, the contention that the appellant will be deprived of his source of livelihood if the conviction is not stayed cannot be appreciated. For the appellant, it is a matter of deprivation of livelihood but he is convicted for deprivation of life of another person. Until he is otherwise declared innocent in appeal, the stain stands. The High Court has discussed in detail the background of the appellant, the nature of the crime, manner in which it was committed, etc. and has rightly held that it is not a very rare and exceptional case for staying the conviction.” 7. Having heard the learned advocate appearing for the respective parties and considering the materials on record, I am of the view that there is no substance in the contention raised by the applicant that, if the conviction is not stayed, the applicant would lose his job. The referred judgments lay that conviction can be stayed in rarest of rare case. Considering the overall facts and evidence on record, prima facie, I am of the opinion that all the aspects of demand, acceptance and recovery are well discussed by the trial court. No special circumstances are made out to stay the judgment and order of conviction and sentence. 7.1 Applying the ratio laid down in the aforesaid decisions to the facts of the case on hand, the present application fails and is hereby rejected. Rule is discharged.