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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

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`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  

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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  

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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  

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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  

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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  

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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.

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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).

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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   

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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.  

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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   

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