Full Judgment Text
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CASE NO.:
Appeal (crl.) 770 of 2001
PETITIONER:
K.C. SAREEN
Vs.
RESPONDENT:
C.B.I., CHANDIGARH
DATE OF JUDGMENT: 02/08/2001
BENCH:
K.T. Thomas & S.N. Variava
JUDGMENT:
THOMAS, J.
Leave granted.
The appeal of a public servant convicted and sentenced
for corruption charges is pending in the High Court. The
sentence has been suspended by the High Court during the
pendency of the appeal. The public servant wants his
conviction also to be suspended in order to avert the other
fall out of the conviction. But the High Court declined to
oblige him though he moved the High Court twice for the
said purpose. This appeal by special leave is in challenge
of the order dated 7.2.2001 passed by the single Judge, by
which the second petition to suspend the conviction was
dismissed.
Appellant was an officer of the Punjab National Bank.
When he was posted at the Mewa Mandi (Amritsar) branch of
the bank he was put in charge of the current account.
During the said period he got himself involved in a
prosecution along with some of his co-employees of the same
bank for defrauding the bank to the tune of about
Rs.2 lakhs. The Central Bureau of Investigation inquired
into the matter. After completing the investigation a
charge-sheet was laid against the appellant and his other
co-employees, for offences under Section 13(2) of the
Prevention of Corruption Act, 1988 (for short PC Act) and
Section 120, 201 and 420 of IPC. A Special Judge at
Patiala conducted the trial for such offences and at the
end found the appellant and some of the co-accused guilty
for different counts of offences. For the purpose of this
appeal we need mention about the sentence of only one
count. He was sentenced to R.I. for one year and to pay a
fine of Rs.500/- for the offence under Section 13(2) of the
PC Act. It is against the said conviction and sentence
that he preferred the appeal before the High Court of
Punjab and Haryana. The High Court admitted the appeal and
as mentioned earlier suspended the sentence passed on him.
After the judgment was pronounced by the trial court
disciplinary proceedings were initiated against the
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appellant and on the strength of the conviction mentioned
above the authorities of the bank dismissed him from
service. Appellant then moved the High Court to have the
conviction also suspended. That motion was dismissed by a
single Judge of the High Court on 1.8.2000, stating thus:
After giving due consideration to the rival
submissions of the learned counsel for the
parties, I am of the view that the relief
prayed for cannot be allowed in this case.
No doubt, the court has powers to stay the
operation of conviction under Section 389(1)
Cr.P.C. in view of the facts and the
circumstances of the case. But in the
instant case, it has come on record that the
applicant-appellants are already out of
service. In case, they are ultimately
acquitted, the damage, if any, caused to
them with regard to their service or other
retiral benefits can well be revived and
made good to them. Keeping in view all the
facts and the circumstances of the case, I
do not consider it a fit case so as to
invoke the powers under Section 389(1)
Cr.P.C. to stay the operation of the
impugned order of conviction during the
pendency of this appeal. Consequently, this
Crl. Misc. is dismissed.
Undeterred by the said order the appellant once again
moved the High Court for the same purpose, at a later
stage, by supplying certain additional facts to the High
Court for fresh consideration of his plea for suspending
the conviction. One of the causes spearheaded by him
before the High Court was the order of dismissal passed by
the bank authorities against him on the premise of the
conviction. Another ground highlighted by him was that his
appeal in the High Court was not likely to be boarded for
hearing without the lapse of 10 years and that itself would
defeat the ends of justice. Alternatively he made a bid to
show that the conviction was based on very slender
reasoning and hence he has a fair chance of getting
acquitted in appeal.
Learned single Judge of the High Court who dealt with
the aforesaid second petition dismissed the same by
observing that after perusing the record no ground is seen
made out for suspending the order of conviction passed
against the appellant.
Shri Vikram Chaudhary, learned counsel for the
appellant repeated before us those grounds and further
submitted that as a trial can logically reach its final end
only when the appellate court decides the matter the
conviction passed by the trial court cannot be treated as
having become absolute. He made an endeavour to draw
support for the said proposition from the following
observations made by this Court in Smt. Akhtari Bi vs.
State of M.P. {2001 (4) SCC 355}:
Appeal being a statutory right, the trial
courts verdict does not attain finality
during pendency of the appeal and for that
purpose his trial is deemed to be continuing
despite conviction.
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By the said observation this Court did not mean that
the conviction and sentence passed by the trial court would
remain in limbo automatically when they are challenged in
appeal. The said observation was made in a different
context altogether when notice of the executive government
was drawn to the need to appoint requisite number of judges
to cope up with the increased pressure on the existing
judicial apparatus, and for highlighting the consequences
of non-filling existing vacancies of judges in the High
Courts. We are unable to appreciate how the said
observation can be culled out of the said context for the
purpose of using it in a different context altogether such
as this where the convicted accused is seeking to have an
order of conviction suspended during the pendency of the
appeal.
Section 389(1) of the Code of Criminal Procedure (for
short the Code) deals with the powers of the appellate
court regarding suspension of execution of the sentence or
order appealed against during the pendency of the appeal.
It must be remembered that the same powers are invokable by
the revisional court also during the pendency of the
revision,(vide Section 401 of the Code). That is obviously
not a reason for holding that the trial of the case could
reach its culmination only when the revisional proceedings
end.
A three Judge Bench of this Court have elaborately
considered the scope and ambit of the powers of the
appellate court envisaged in Section 389 of the Code. Vide
Rama Narang vs. Ramesh Naraang & ors. {1995 (2) SCC 513}.
Ahmadi, CJ, who authored the judgment for the Bench said
that what can be suspended under Section 389(1) of the Code
is the execution of the sentence or execution of the order
and obviously the order referred to in the sub-section
must be an order which is capable of execution. Learned
Chief Justice then observed thus:
An order of conviction by itself is not
capable of execution under the Code. It is
the order of sentence or an order awarding
compensation or imposing fine or release on
probation which are capable of execution and
which, if not suspended, would be required
to be executed by the authorities. Since
the order of conviction does not on the mere
filing of an appeal disappear it is
difficult to accept the submission that
Section 267 of the Companies Act must be
read to apply only to a final order of
conviction. Such an interpretation may
defeat the very object and purpose for which
it came to be enacted.
Nevertheless, the three Judge bench further stated that in
certain situation the order of conviction can be executable
and in such a case the power under Section 389(1) of the
Code could be invoked. The ratio of the judgment can be
traced out in the said paragraph which is extracted below:
In certain situations the order of
conviction can be executable, in the sense
it may incur a disqualification as in the
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instant case. In such a case the power
under Section 389(1) of the Code could be
invoked. In such situations the attention
of the appellate court must be specifically
invited to the consequences which are likely
to fall to enable it to apply its mind to
the issue since under Section 389(1) it is
under an obligation to support its order
for reasons to be recorded by it in
writing. If the attention of the Court is
not invited to this specific consequence
which is likely to fall upon conviction how
can it be expected to assign reasons
relevant thereto? No one can be allowed to
play hide and seek with the Court; he cannot
suppress the precise purpose for which he
seeks suspension of the conviction and
obtain a general order of stay and then
contend that the disqualification has ceased
to operate.
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, de hors the sentence of
imprisonment as a sequel thereto, is a different matter.
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 was 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
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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 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. 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.
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.
We are fortified in holding so by two other decisions
of this Court. One is Deputy Director of Collegiate
Education vs. S. Nagoor Meera {1995 (3) SCC 377}. The
following observations of this Court are apposite now:
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 servantaccused 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.
The other decision is State of Tamil Nadu vs. A
Jaganathan {1996 (5) SCC 329} which deals with the case of
some public servants who were convicted, inter alia, of
corruption charges. When the appeal, filed by such public
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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 que from the ratio laid
down in Rama Narang vs. Ramesh Narang (supra). 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.
We therefore dismiss this appeal. However, we wish to
state that it is open to the appellant to move the High
Court for early hearing. If the High Court is satisfied
that the appellant has a reasonably good prospect of being
exonerated or that there is any other special reason we
hope that the High Court would board the appeal for hearing
on an early date.
J
[ K.T. Thomas ]
J
[ S.N. Variava ]
August 2, 2001.