? REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1648 of 2012
State of Maharashtra Through CBI, …..Appellant
Anti Corruption Branch, Mumbai
Versus
Balakrishna Dattatrya Kumbhar …..
Respondent
JUDGMENT
Dr. B.S. CHAUHAN, J.
l. This Criminal Appeal has been preferred against the impugned
judgment and order dated 8.4.2008 in Criminal Application No. 157 of
2008 in Criminal Appeal No. 1243 of 2007 passed by the High Court of
Bombay, by way of which, the High Court passed an order of suspension
of the conviction of the respondent under Section 13(2) r/w Section
13(1)(e) of the Prevention of Corruption Act, 1988 (hereinafter
referred to as the `Act 1988’), passed by the Special Judge, vide
order dated 15.10.2007 in Special Case No. 93 of 2000.
2. The facts and circumstances giving rise to this appeal are as
follows:
A) On 8.1.1999, Special Case No. 93 of 2000 in R.C. No. 39-A of
1999 was registered against the respondent, the then Superintendent of
Central Excise, Mumbai, for the offences punishable under Section
13(2) r/w 13(1)(e) of the Act 1988, alleging that he possessed assets
disproportionate to his disclosed source of income which was to the
extent of Rs. 7,64,368/-
B) After completing the investigation of the case, the
investigating agency filed a charge-sheet dated 27.12.2000, under the
said provisions of the Act, 1988. The trial court concluded the trial
and convicted the respondent under the said provisions and awarded him
a sentence of two years, along with a fine of Rs.1 lakh and, in
default, to undergo imprisonment for a further period of three months,
vide judgment and order dated 15.10.2007.
C) Subsequent to his conviction, the respondent was put under
suspension by the competent authority vide order dated 1.11.2007 and
was served a show-cause notice dated 25.1.2008, to explain that in
view of his conviction for the offence punishable under the Act 1988,
why he should not be dismissed from service, in view of the provisions
of Rule 11 of CCS (CCA) Rules, 1965. The respondent was given 15 days
time to make his representation against the said show cause notice.
D) The respondent approached the High Court by filing an
application under Section 389(1) of the Code of Criminal Procedure
1973, (hereinafter referred to as the ‘Cr.P.C.’) requesting that
during the pendency of his appeal against the said impugned judgment,
the order of conviction against him be suspended. The said
application of suspension of conviction has been allowed vide impugned
order dated 8.4.2008.
Hence, this appeal.
3. Shri P.P. Malhotra, learned ASG, appearing on behalf of the
appellant, submitted that the High Court could exercise its power
under Section 389(1) Cr.P.C., for suspension of such conviction only
in the rarest of rare case. In the instant case, as the respondent
was a public servant and had been convicted on charges of corruption,
the High Court was not justified in passing the said order of
suspension of conviction. The High Court should have considered the
ramifications of such suspension, as such an order would, no doubt
demoralise the employers and also other public servants. Under no
circumstance, does the case of the respondent fall under the
exceptional circumstances under which, such an order would be
warranted. Thus, it is nothing but an abuse of the adjudicatory
process of law and justice demands that he should be treated as a
corrupt and guilty person, unless he is proved to be innocent. The
appeal deserves to be allowed and the impugned judgment and order is
liable to be set aside.
4. On the contrary, Shri Sushil Karanjkar, learned counsel
appearing on behalf of the respondent, has vehemently opposed the
appeal contending that the respondent did not have disproportionate
assets as alleged. There has been a serious error on the part of the
trial court in making such assessment and convicting the respondent on
the basis of the same. In fact, it is the income of his wife which
was duly proved before the statutory authorities, under the Income Tax
Act 1961. Subsequent to the conviction of the respondent, the appeal
was allowed by the Income Tax Appellate Tribunal, Mumbai, vide order
dated 17.3.2009 wherein, it was accepted that the said amount,
belonged to respondent’s wife. The High Court hence, committed no
error in passing the impugned order. The special leave petition also,
was filed at a belated stage and the said impugned order was passed
over 4-1/2 years ago. The appeal of the respondent is in the list of
matters listed for final hearing before the Bombay High Court, and
thus, no interference is required. The appeal is liable to be
dismissed.
5. We have considered the rival submissions made by learned counsel
for the parties and perused the records.
6. In Rama Narang v. Ramesh Narang & Ors., (1995) 2 SCC 513, this
Court dealt with the said issue elaborately and held that if, in a
befitting case, the High Court feels satisfied that the order of
conviction needs to be suspended, or stayed, so that the convicted
person does not have to suffer from a certain disqualification,
provided for by some other statute, it may exercise its power in this
regard because otherwise, the damage done cannot be undone. However,
while granting such stay of conviction, the court must examine all the
pros and cons and then, only if it feels satisfied that a case has
infact been made out for grant of such an order, it may proceed to do
so and even while doing so, it may, if it so considers it appropriate,
impose such conditions as are deemed appropriate, to protect the
interests of the other parties. Further, it is the duty of the
applicant to specifically invite the attention of the appellate court
as regards the consequences, which are likely to follow, upon grant of
such stay, so as to enable it to apply its mind fully to the issue,
since under Section 389(1) Cr.P.C., the court is under an obligation
to support its order in a manner provided therein, the same being,
“for the reasons to be recorded by it in writing”.
7. In State of Tamil Nadu v. A. Jaganathan, AIR 1996 SC 2449, this
Court dealt with a case wherein the High Court stayed the order of
conviction for the sole reason that, in absence of such a stay, the
accused was likely to lose his job. This Court reversed the impugned
order therein observing:
“…… the High Court, though made an observation but did not
consider at all the moral conduct of the respondent.…. who
was the Police Inspector….had been convicted under Sections
392, 218 and 466 I.P.C. while the other respondents, who are
also public servants, have been convicted under the
provisions of the Prevention of Corruption Act. In such a
case, the discretionary power to suspend the conviction
either under Section 389 or under Section 482 Cr.P.C. should
not have been exercised. The order impugned, thus, cannot be
sustained.”
8. In K.C. Sareen v. Central Bureau of Investigation, Chandigarh,
AIR 2001 SC 3320, this Court examined a case wherein a government
servant who had been convicted under the provisions of the Prevention
of Corruption Act would lose his job in the event that the conviction
was not stayed. The Court held that when a public servant is found
guilty of corruption by a Court, he has to be treated as corrupt until
he is exonerated by a superior Court in appeal/revision. Mere stay of
the conviction during the pendency of the appeal should not confer any
benefit upon such an employee, for the reason that if such a public
servant is permitted to hold office and to perform official acts
(unless he is absolved from such findings by a superior Court), public
interest may suffer tremendously. It may also impair the moral of
other persons manning such office and may further, erode the
confidence of the people in public institutions, besides of course,
demoralising all other honest public servants.
9. In State of Maharashtra v. Gajanan & Anr., AIR 2004 SC 1188,
this Court reiterated a similar view, placing reliance upon the
judgment in K.C. Sarin (supra) and Union of India v. Atar Singh &
Anr., (2003) 12 SCC 434. In the latter case, this Court held that an
order of conviction should not be suspended merely on the ground that
non-suspension of such conviction may entail the removal of the
government servant from service.
10. In Ravikant S. Patil v. Savabhouma S. Bagali, (2007) 1 SCC 673,
this Court held as under:-
“It deserves to be clarified that an order granting stay
of conviction is not the rule but is an exception to be
resorted to in rare cases depending upon the facts of a case.
Where the execution of the sentence is stayed, the
conviction continues to operate. But where conviction itself
is stayed, the effect is that the conviction will not be
operative from the date of stay. An order of stay, of
course, does not render the conviction non-existent, but only
non-operative…….All these decisions, while recognizing the
power to stay conviction, have cautioned and clarified that
such power should be exercised only in exceptional
circumstances where failure to stay the conviction, would
lead to injustice and irreversible consequences.”
(emphasis added)
11. In Navjot Singh Sidhu v. State of Punjab & Anr., AIR 2007 SC
1003, this Court held that the Appellate Court can suspend “an order
appealed against”, i.e. an order of conviction, only if the convict
specifically establishes the consequences that may follow if the
operation of the said order is not stayed. Stay of conviction must be
granted only in a rare case and that too, only under special
circumstances.
(See also: State of Punjab v. Navraj Singh AIR 2008 SC 2962; and CBI,
New Delhi v. Roshan Lal Saini, AIR 2009 SC 755).
12. Thus, in view of the aforesaid discussion, a clear picture
emerges to the effect that, the Appellate Court in an exceptional
case, may put the conviction in abeyance along with the sentence, but
such power must be exercised with great circumspection and caution,
for the purpose of which, the applicant must satisfy the Court as
regards the evil that is likely to befall him, if the said conviction
is not suspended. The Court has to consider all the facts as are
pleaded by the applicant, in a judicious manner and examined whether
the facts and circumstances involved in the case are such, that they
warrant such a course of action by it. The court additionally, must
record in writing, its reasons for granting such relief. Relief of
staying the order of conviction cannot be granted only on the ground
that an employee may lose his job, if the same is not done.
13. The instant case is required to be examined in light of the
aforesaid settled legal propositions. The relevant part of the
impugned order reads as under:
“As the applicant would suffer serious prejudice on account of
order of dismissal, in my opinion, the applicant is justified
in applying to this Court for suspending the order of
conviction so that the Department shall not precipitate the
matter further. The applicant through counsel fairly submits
that relying on this order, the applicant will not claim
further relief of setting aside the order of suspension which
is already operating against the applicant passed by the
Department on 1st November, 2007.”
14. The aforesaid order is therefore, certainly not sustainable in
law if examined in light of the aforementioned judgments of this
Court. Corruption is not only a punishable offence but also
undermines human rights, indirectly violating them, and systematic
corruption, is a human rights’ violation in itself, as it leads to
systematic economic crimes. Thus, in the aforesaid backdrop, the High
Court should not have passed the said order of suspension of sentence
in a case involving corruption. It was certainly not the case where
damage if done, could not be undone as the employee/respondent if
ultimately succeeds, could claim all consequential benefits. The
submission made on behalf of the respondent, that this Court should
not interfere with the impugned order at such a belated stage, has no
merit for the reason that this Court, vide order dated 9.7.2009 has
already stayed the operation of the said impugned order.
15. Thus, in view of the above, the appeal is allowed and the
impugned order dated 8.4.2008 is hereby, set aside.
Before parting with the case, we clarify that the observations
made in this judgment will not adversely affect the case of the
respondent at the time of final disposal of his appeal.
……………………………………….……………..J.
(Dr. B.S. CHAUHAN)
……………………………….……………………..J.
(FAKKIR MOHAMED IBRAHIM KALIFULLA)
New Delhi,
October 15, 2012
