Full Judgment Text
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CASE NO.:
Appeal (crl.) 1251 of 2007
PETITIONER:
STATE OF PUNJAB
RESPONDENT:
DEEPAK MATTU
DATE OF JUDGMENT: 18/09/2007
BENCH:
S.B. Sinha & Harjit Singh Bedi
JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO. 1251 OF 2007
[Arising out of SLP(Crl.) No. 5958 of 2006]
S.B. SINHA, J
1. Leave granted.
2. 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;
"I 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.
The 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.
It 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."
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3. An 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
Court in K.C. Sareen Vs. C.B.I., Chandigarh [(2001) 6 SCC 584]. By
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;
"The 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."
4. Ms. 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.
5. Section 389 of the Code of Criminal Procedure, 1973 reads as under:-
"389. Suspension of sentence pending the appeal;
release of appellant on bail -
(1) 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:
Provided 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.
Provided 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 bail.
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(2) 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 subordinate thereto.
(3) Where the convicted person satisfies
the Court by which he is convicted that he intends
to present an appeal, the Court shall -
(i) where such person, being on bail, is
sentenced to imprisonment for a term
not exceeding three years, or
(ii) 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.
(4) 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."
6. An 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;
(i) A long time may be taken to decide the appeal.
(ii) There are good points to argue.
7. 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;
"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 heard soon after the filing of the
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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 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."
8. In State of Maharashtra Vs. Gajanan and Another [(2003) 12 SCC
432], relying upon another decision of this Court in Union of India Vs. Atar
Singh [(2003) 12 SCC 434] and also K.C. Sareen (supra), it was held;
"5. 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
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judgment of this Court in Union of India v. Atar Singh"
9. 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.
10. 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.
11. 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.
No costs.