State of Maharashtra Vs. Gajanan and Anr.
EmailAppeal: Criminal Appeal Nos. 1506-1507 of 2003
(Arising out of SLP (Crl.) Nos. 2336-2337 of 2003)
(From the Judgment and Order dated 30.11.2002 of the Bombay High Court at Nagpur in Crl. A. Nos. 2603/2002, 38/2001, 2644/2002 in Crl. A.No. 46 of 2001)
(Arising out of SLP (Crl.) Nos. 2336-2337 of 2003)
(From the Judgment and Order dated 30.11.2002 of the Bombay High Court at Nagpur in Crl. A. Nos. 2603/2002, 38/2001, 2644/2002 in Crl. A.No. 46 of 2001)
Petitioner: State of Maharashtra
Respondent: Gajanan and Anr.
Apeal: Criminal Appeal Nos. 1506-1507 of 2003
(Arising out of SLP (Crl.) Nos. 2336-2337 of 2003)
(From the Judgment and Order dated 30.11.2002 of the Bombay High Court at Nagpur in Crl. A. Nos. 2603/2002, 38/2001, 2644/2002 in Crl. A.No. 46 of 2001)
(Arising out of SLP (Crl.) Nos. 2336-2337 of 2003)
(From the Judgment and Order dated 30.11.2002 of the Bombay High Court at Nagpur in Crl. A. Nos. 2603/2002, 38/2001, 2644/2002 in Crl. A.No. 46 of 2001)
Judges: N. Santosh Hegde & B.P. Singh, JJ.
Date of Judgment: Dec 18, 2003
Appearances:
Mr. Ravindra Keshavrao Adsure, Advocate for the Appellant.
Mr. R.S. Lambat, Advocate for the Respondents.
Mr. R.S. Lambat, Advocate for the Respondents.
Head Note:
CRIMINAL LAWS
Criminal Procedure Code, 1973
Section 389 – Prevention of Corruption Act, 1988 – Sections 7, 13(1) (d) – Suspension of sentence as well as conviction – No exceptional circumstance mentioned. Held that suspension of conviction was improper. K.C. Sareen’s case (JT 2001 (6) SC 59) relied upon. JT 2001 (10) SC 212 referred. (Paras 4,5)
Cases Reffered:
1. K.C. Sareen v. CBI, Chandigarh (JT 2001 (6) SC 59) (Para 3)
2. Union of India v. Atar Singh & Anr. (JT 2001 (10) SC 212) (Para 5)
2. Union of India v. Atar Singh & Anr. (JT 2001 (10) SC 212) (Para 5)
JUDGEMENT:
Santosh Hegde, J.
1. Heard learned counsel for the parties.
2. Leave granted.
3. By the impugned judgment the High Court while entertaining a criminal appeal against an order of conviction recorded by the special court against the respondents herein for an offence under section 7 of the Prevention of Corruption Act, (the Act) not only stayed the sentence imposed by the trial court but also proceeded to stay the conviction which could facilitate the respondent public servant to continue to hold the civil post in spite of the conviction recorded against him. While doing so the High Court rejected the objection of the State as also distinguished the judgment of this Court in K.C. Sareen v. CBI, Chandigarh1 on facts.
4. Having perused the impugned order as also the judgment of this Court in K.C. Sareen (supra), we find the High Court had no room for distinguishing the law laid down by this Court in K.C. Sareen’s case (supra) even on facts. This Court in the said case held:
“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)
5. In the said judgment of K.C. Sareen (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’s case (supra) was subsequently approved and followed by the judgment of this Court in Union of India v. Atar Singh & Anr.2.
6. For the reasons stated above, these appeals succeed. The impugned orders are set aside and the appeals are allowed.
1. Heard learned counsel for the parties.
2. Leave granted.
3. By the impugned judgment the High Court while entertaining a criminal appeal against an order of conviction recorded by the special court against the respondents herein for an offence under section 7 of the Prevention of Corruption Act, (the Act) not only stayed the sentence imposed by the trial court but also proceeded to stay the conviction which could facilitate the respondent public servant to continue to hold the civil post in spite of the conviction recorded against him. While doing so the High Court rejected the objection of the State as also distinguished the judgment of this Court in K.C. Sareen v. CBI, Chandigarh1 on facts.
4. Having perused the impugned order as also the judgment of this Court in K.C. Sareen (supra), we find the High Court had no room for distinguishing the law laid down by this Court in K.C. Sareen’s case (supra) even on facts. This Court in the said case held:
“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)
5. In the said judgment of K.C. Sareen (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’s case (supra) was subsequently approved and followed by the judgment of this Court in Union of India v. Atar Singh & Anr.2.
6. For the reasons stated above, these appeals succeed. The impugned orders are set aside and the appeals are allowed.
