of Punjab Vs. Deepak Mattu  Insc 957 (18 September 2007)
Sinha & Harjit Singh Bedi
APPEAL NO. 1251 OF 2007 [Arising out of SLP(Crl.) No. 5958 of 2006] S.B. SINHA,
Respondent is a public servant. He was proceeded against in a case under
Prevention of Corruption Act. He was sentenced to one and a half years (18
months) rigorous imprisonment. A fine of Rs. 1,000/- (Rupees One Thousand Only)
was also imposed upon him by Special Judge, Fatehgarh Sahib, Punjab. He preferred an appeal thereagainst
marked as Criminal Appeal No. 1022-SB/04. In the said appeal, an application
was filed by the respondent for suspending of conviction purported to be under
Section 389 of the Code of Criminal Procedure, 1973. By reason of the Order
dated 11.1.2005, learned Judge of the Special Court allowed the said application holding;
have heard Ld. Counsel for the applicant-appellant Deepak Mattu and Deputy
Advocate General, Punjab appearing for the respondent on an
application moved under Section 389 Cr.P.C. for suspension of conviction
recorded under Sections 7 and 13(2) of the Prevention of Corruption Act.
sentence of the appellant has already been suspended. He is working as Junior
Engineer in Punjab State Electricity Board. It is argued that if his conviction
is not suspended, he may have to face dismissal from service. Three flaws in
the impugned judgment have been pointed out. Firstly, that shadow witness has
not been examined; secondly, that the alleged demand was of Rs. 2000/- and this
bribe money was allegedly paid but at the time of recovery, only an amount of Rs.
1900/- was recovered; and thirdly, there is no corroboration to the demand in
as much as the complaint alone proved the same and the shadow witness in whose presence
it was made has not been examined.
will take a long time to decide the appeal. There are fairly good points to
argue. This application is allowed and the conviction of the appellant is
suspended during the pendency of the appeal."
application was filed by the appellant herein for vacation of stay of
conviction granted to him by reason of the said order with a prayer to recall
the same, whereby the Court's attention was drawn to a judgment of this reason
of the impugned judgment while the Court accepted that an order suspending the
conviction could be allowed only in a very exceptional case, dismissed the
application of stay holding;
present petition is not maintainable. Order dated 11.1.2005 can neither be
reviewed nor recalled. It was passed in the presence of the Deputy Advocate
General, Punjab, who represented the
respondent-State. The merits of the case were considered. It was considered
that it will take a long time to decide the appeal and there are fairly good
points to be argued. Hence, application under Section 389 Cr.P.C. was allowed
and the conviction of the appellant recorded under Sections 7 and 13(2) of the
Prevention of Corruption Act was suspended during pendency of appeal. There is
no blanket bar imposed on the Appellate Court to grant stay of conviction in
corruption cases. After going through the 'grounds of appeal' and the contents
of the application moved under Section 389 Cr.P.C., it was considered that it
was an exceptional case. Hence, the conviction was stayed during pendency of
the appeal. Sentenced imposed on the appellant had already been stayed. Now,
there exists no reason, either for vacation of the order dated 11.1.2005 or to
review/recall the same."
Ruchira Gupta, learned counsel appearing on behalf of the appellant would
submit that the High Court being aware of the decisions of this Court holding
that ordinarily the suspension of conviction should not be granted, must be
held to have committed a manifest error in passing the impugned judgment. Mr. Neeraj
Kumar Jain, learned counsel appearing on behalf of the respondent on the other
hand would submit that the respondent being a government servant and he having
been convicted only for a period of one and a half years, the High Court cannot
be said to have committed any error in suspending the judgment of conviction.
In any event, the learned counsel submitted that the Court for all intent and
purport having arrived at a decision that an exceptional case have been made
out, no interference therewith by this Court is warranted.
Section 389 of the Code of Criminal Procedure, 1973 reads as under:- "389.
Suspension of sentence pending the appeal; release of appellant on bail –
Pending any appeal by a convicted person, the Appellate Court may, for reasons
to be recorded by it in writing, order that the execution of the sentence or
order appealed against be suspended and, also, if he is in confinement, that he
be released on bail or on his own bond:
that the Appellate Court shall, before releasing on bail or on his own bond a
convicted person who is convicted of an offence punishable with death or
imprisonment for life or imprisonment for a term of not less than ten years,
shall give opportunity to the Public Prosecutor for showing cause in writing
against such release.
further that in cases where a convicted person is released on bail it shall be
open to the Public Prosecutor to file an application for the cancellation of
The power conferred by this section on an Appellate Court may be exercised also
by the High Court in the case of an appeal by a convicted person to a Court
Where the convicted person satisfies the Court by which he is convicted that he
intends to present an appeal, the Court shall –
such person, being on bail, is sentenced to imprisonment for a term not
exceeding three years, or
where the offence of which such person has been convicted is a bailable one,
and he is on bail, order that the convicted person be released on bail, unless
there are special reasons for refusing bail, for such period as will afford
sufficient time to present the appeal and obtain the orders of the Appellate
Court under sub-section (1), and the sentence of imprisonment shall, so long as
he is so released on bail, be deemed to be suspended.
When the appellant is ultimately sentenced to imprisonment for a term or to
imprisonment for life, the time during which he is so released shall be
excluded in computing the term for which he is so sentenced."
order of suspension of conviction admittedly is not to be readily granted. The
High Court in its order dated 11.1.2005 passed a judgment irrespective of
conviction and sentence, only on two grounds;
long time may be taken to decide the appeal.
There are good points to argue.
While passing the said Order, the High Court did not assign any special
reasons. Possible delay in disposal of the appeal and there are arguable points
by itself may not be sufficient to grant suspension of a sentence. The High
Court while passing the said Order merely noticed some points which could be
raised in the appeal. The grounds so taken do not suggest that the respondent
was proceeded against by the State, malafide or any bad faith. In K.C. Sareen
(supra), this Court opined;
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. 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
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. 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."
[(2003) 12 SCC 434] and also K.C. Sareen (supra), it was held;
In the said judgment of K.C. Sareen this Court has held that it is only in very
exceptional cases that the court should exercise such power of stay in matters
arising out of the Act. The High Court has in the impugned order nowhere
pointed out what is the exceptional fact which in its opinion required it to
stay the conviction. The High Court also failed to note the direction of this
Court that it has a duty to look at all aspects including ramification of
keeping such conviction in abeyance. The High Court, in our opinion, has not
taken into consideration any of the above factors while staying the conviction.
It should also be noted that the view expressed by this Court in K.C. Sareen
case was subsequently approved followed by the judgment of this Court in Union
of India v. Atar Singh"
Relying on the aforementioned two decisions, an order is passed in a wrong,
illegal premise. 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.
We, therefore, see no reason as to why High Court cannot modify its own
interlocutory order when the matter is yet to be finally disposed of.
We, therefore, are of the opinion that the High Court was not correct in its
view. We, therefore, allow this appeal by setting aside both the orders.