C.B.I,New Delhi Vs.
Roshan Lal Saini [2008] INSC 1185 (21 July 2008)
Judgment
CRIMINAL APPELLATE
JURISDICTION CRIMINAL APPEAL NO. OF 2008 (Arising out of S.L.P. (Crl.) No. 3194
of 2007) Central Bureau of Investigation, New Delhi ...
Appellant Roshan Lal
Saini ...Respondent
DR. ARIJIT PASAYAT,
J.
1.
Leave
granted.
2.
Challenge
in this appeal is to the order passed by a learned Single Judge of the Delhi
High Court directing that the conviction of the respondent shall remain stayed
during the pendency of Criminal Appeal No. 809 of 2005
3.
Background
facts in a nutshell are as follows:
Respondent who was
working as Patwari Halqa and was convicted by learned Special Judge, Tis Hazari
Courts, Delhi, for offences punishable under Sections 7 and 13(1)(d) read with
Section 13(2) of the Prevention of Corruption Act, 1988 (in short `P.C. Act')
and Section 120-B of the Indian Penal Code, 1860 (in short `IPC') and sentenced
to undergo rigorous imprisonment for a period of one year, 2 years and one year
respectivley and to pay a fine of Rs.2000/- with default stipulation. Against
the judgment in question respondent filed the aforesaid Criminal appeal which
was admitted. After admission of the appeal, respondent filed an application in
terms of Section 389(1) of the Code of Criminal Procedure, 1973 (in short the
`Code') read with Section 482 of the Code for suspension of the judgment of
learned Special Judge.
The High Court by
order dated 10.8.2006 stayed the conviction. According to the appellant, the
view expressed by this Court in K.C. Sareen v. CBI, Chandigarh [2001(6) SCC
584] was not kept in view. The High Court dismissed that application.
4.
It
is submitted by learned counsel for the appellant that the suspension of the
conviction is clearly unsustainable. It is pointed out that the High Court
noted that the employer had given a notice for dispensing his services as Peon.
5.
Learned
counsel for the respondent submitted that the High Court took note of the fact
that this was a case where the prayer for suspension of the conviction was to
be granted. Unless the order of conviction was suspended, the respondent would
have lost his job.
6.
In
State of Maharashtra v. Gajanan and Another [2003 (12) SCC 432], it was noted
as follows:
"Having perused
the impugned order as also the judgment of this Court in K.C. Sareen's case
[2001(6) SCC 584] we find the High Court had no room for distinguishing the law
laid down by this Court in K.C. Sareen case supra even on facts. This Court in
the said case held: (SCC p. 589, para 11) 3 "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. 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, dehors the sentence of imprisonment as a sequel
thereto, is a different matter."
(emphasis supplied)
In the said judgment of K.C. Sareen's case (supra) 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 (supra) was subsequently approved 4 followed by the
judgment of this Court in Union of India v. Atar Singh [2003(12) SCC 434].
7.
In
Union of India v. Avtar Singh & Anr. (2003(12) SCC 434) it was held as
follows:
"This appeal is
directed against the impugned order of the High Court. The respondent- accused,
who has been convicted under Section 409 IPC and Section 13 OF THE Prevention
of Corruption Act, preferred an appeal to the High Court, which has been
entertained. On an application being filed under Section 389 of the Code of
Criminal Procedure, the High Court has suspended the conviction solely on the
ground that the non- suspension of conviction may entail removal of the
delinquent government servant from service."
8.
In
K.C. Sareen's case (supra) it was noted as follows:
"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.
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, 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. 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 6 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.
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. 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."
9.
In
State of Haryana v. Hasmat [2004(6) SCC 175] it was noted as follows:
"6. Section 389
of the Code deals with suspension of execution of sentence pending the appeal
and release of the appellant on bail.
There is a
distinction between bail and suspension of sentence. One of the essential
ingredients of Section 389 is the requirement for the appellate court to record
reasons in writing for ordering suspension of execution of the sentence or
order appealed. If he is in confinement, the said court can direct that he be
released on bail or on his own bond. The requirement of recording reasons in
writing clearly indicates that there has to be careful consideration of the
relevant aspects and the 7 order directing suspension of sentence and grant of
bail should not be passed as a matter of routine."
10.
It
is to be noted that learned Single Judge while directing suspension of
conviction indicated no reasons.
11.
Above
being the position the order of the learned Single Judge directing the
suspension/stay of the conviction cannot stand and is set aside.
12.
It
is submitted by learned counsel for the appellant that hearing of the cases was
posted to 22.5.2008. Since the cases of both M.N. Sharma and Roshan Lal Saini
were not posted, the matter has been adjourned to 22.9.2008. We request the
High Court to take up the matter and dispose of the appeal as early as
practicable, preferably by end of 2008.
13.
Appeal
is allowed.
..................................J.
(Dr.
ARIJIT PASAYAT) 8 ..................................J.
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