STATE OF MAHARASHTRA TR.C.B.I. Vs BALAKRISHNA DATTATRYA KUMBHAR
Bench: B.S. CHAUHAN,FAKKIR MOHAMED IBRAHIM KALIFULLA
Case number: Crl.A. No.-001648-001648 / 2012
Diary number: 12576 / 2009
Advocates: B. KRISHNA PRASAD Vs
K. N. RAI
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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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