Full Judgment Text
IN THE SUPREME COURT OF INDIA
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
Vs.
Roshan Lal Saini …Respondent
J U D G M E N T
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
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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
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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)
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“ 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
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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
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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
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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
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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)
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…………………………….J.
(H.S. BEDI)
New Delhi,
July 21, 2008
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