CENTRAL BUREAU OF INVESTIGATION, NEW DELHI versus M.N. SHARMA

[2008] 11 S.C.R. 18

CENTRAL BUREAU OF INVESTIGATION, NEW DELHI v. M.N. SHARMA (Criminal Appeal No.· 1127 of 2008) JULY 21, 2008

[DR. ARIJIT PASAYAT AND HARJIT SINGH BEDI, JJ.]

Code of Criminal Procedure, 1973; Ss.389 and 482.'

Suspension of conviction - Special Judge convicting accused employ~e for committing offences. punishable un-ders.13(1)(d) r/ws.3(2) of 1988A9'~and s.1208 IPC~Accused filing application in terms of s. 389( 1) rlw s.482 Cr. PC. - Con-viction· stayed .by High Court - Correctnes{3 of - Held: High Court while directing suspension of conviction indicated no reasons - Hence order of the High. Coµrt not sustainable and set aside -Prevention of Corruption_ Act, 1988-s 13(1)(-d) rlw s.13(2) ~Penal.Code, 1860 - s.120-B ..

Responderlt, an employee, was convicted by the [Special ][Judge ][for ][com'mitung offences punishabfe ][under ]Ss. 7 and 13(1)(d) read with s.13(2) ofthe Prevention of Corruption Act, 1988 ands. 120-B IPC and sentenced him to undergo rigorous imprisonment accordingly. Respon-dent filed an appeal which was admitted. During pendency [of ][the appeal, ][respondent ][filed an application in ][terms ][of ]s. 389(1) Cr.P.C; r~ad with s.482 of the Code for suspen-sion of the judgment. The High Court stayed the c.onvic-tion. Hence the present appeal.

Appellant contended that the suspension of the con-G viction is clearly unsustainable. . . . . '

Respondent submitted that the High Court took note of the fact that this was case where the prayer for sus-pension of the conviction was to be granted and unless the order of conviction was suspended, the respondent

v. M.N. SHARMA [DR. ARIJIT PASAYAT, J.

would have lo_st his job.

Allowing the appeal, the Court

HELD: 1. Single Judge of the High Court while di-recting suspension of conviction indicated no reasons. Hence, the order of the Single Judge of the High Court directing the suspension/stay of the conviction cannot stand and is set aside. (Paras 10 & 11) [25-A & B]

K. C. Sareen vs. CBI, Chandigarh (2001) 6 SCC 584; State of Maharashtra vs. Gajanan and Another (2003) 12 SCC 432; Union of India vs. Atar Singh (2003) 12 SCC 434 and State of Haryana vs. Hasmat (2004) 6 SCC 175 - referred to.

2. The High qourt to take up the matter and dispose

of the appeal as early as practicable. (Para 12) [25 D]

(2001) 6 SCC 584; Referred to 6, 7 ,8 & 9

(2003) 12 sec 432;

(2003) 12 sec 434;

(2004) s sec 175

CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 1127 of 2008

From the final Judgment and Order dated 3.2.2006 of the High Court of Delhi at New Delhi in Crl. Appeal No. 813/2005

A. Sharan, A.S.G., Vikas Sharma, AmitAnand Tiwari, B.K. Prasad and P. Parmeswaran for the Appellant.

Uday U. Lalit, Ashutosh Lohia, Gaurav Agrawal and Jyoti Mendiratta for the Respondent.

The Judgment of the Court were delivered

DR. ARIJIT PASAYAT, J. 1. Leave granted.

2. Challenge in this appeal is to the order passed by learned Single Judge of the Delhi High Court directing that the

conviction of the respondent shall remain stayed during the pen-dency of Criminal Appeal No.813 of 2005

3. Background facts in nutshell are as follows:

Respondent who. was working as Sub-Registrar, Tehasildar and was convicted by learn~d Special Judge, Tis Hazari Courts, Delhi, for offences punishable under Sections} and 13(1 )(d) read with Section 13(2) of the Prevention of Cor-ruption Act, 1988 (in short 'P.C. Act') and Section 120-B of the Indian Penal Code, 1860 (in short 'IPC') and sentenced to un-C dergo rigorous imprisonment for period of one year, 2 years and one year respectively and to pay fine of Rs.2000/- with default stipulation. Against the judgment in question respondent filed the aforesaid Criminal appeal which was admitted. After admission of the appeal, respondent filed an· application in o terms of Section 389(1) of the Code of Criminal Procedure, 1973 (in short the 'Code') read with Sectiun 482 of the Code for suspension of the judgment of learned Special Judge.

The High Court by order dated 3.2.2006 stayed the con-viction. According to the appellant, the view expressed by this Court in KC. Sareen v. CBI, Chandigarh [2001(6) SCC 584] was not kept in view. The High Court dismissed that applica-tion.

4. It is submitted by learned counsel for the appellant that

the suspension of the conviction is clearly unsustainable. It is pointed out that the High Court noted that employer had given notice for dispensing his services as Sub-Registrar.

5. Learned counsel for the respondent submitted that the

High Court took note of the fact that this was case where the--G prayer for suspension of the conviction was to be granted. Un-less the order of conviction was suspended, the respondent would have lost his job.

6. In State of Maharashtra v. Gajanan and Another [2003

(12) sec 432], it was noted as follows:

Having perused the impugned order as also the judgment [A ]of this Court in K.C. Sareen's case [2001 (6) SCC 584] we find the High Court had no room for distinguishing the law laid down by this Court in K. C. Sareen case supra even on facts. This Court in the said case held: (SCC p. 589,· para 11)

"11. The legal position, therefore, is this: though the power [B· ]

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 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 o. question as to what should be the position when 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 [E ]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 sequel thereto, is different matter."

(emphasis supplied)

In the said judgment of K. C. Sareen's case (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 s.hould also be noted that the view expressed by this Court in K. C. Sareen case (supra) was subsequently approved followed by the judgment of this Court in Union of India v. Atar Singh r2003r12; sec 434].

7. In Union of India v. Avtar Singh & Anr. (2003(12) SCC 434) it was held as follows:

"This appeal is directed against the ·impugned order of the High Court. The responden_t-_accused, who has been convicted under Section 409 IPC and Section 13 OF THE Prevention of Corruption Act, prefe.rred an appeal to the High Court, which has been entertained. On an application being filed under Section 389 of the Code of Criminal Procedure, the High Court has suspended the conviction solely on the ground that the non-suspensio·n of conviction may entail removal of the delinquent government servant from service."

8. In K. C. Sareen's case (supra) it was noted as follows:

"11. 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 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 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

r )....

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 sequel thereto, is different matter.

12. Corruption by public servants has now reached 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 public servant is found guilty of corruption after judicial adjudicatory process conducted by court of law, judiciousness demands that he should be treated as corrupt until he is exonerated by superior court. The mere fact that an appellate or revisional forum has decided to entertain his challenge and to go into the issues ;;ind findings made against such public servants once again should not even temporarily absolve him from such findings. If such public servant becomes entitled to hold public office and to continue to db 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 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 coH~?gues or subordinates o( the convicted person. If . ho.nest public servants are compelled to take orders from proclaimed corrupt officers on ·account of the suspension of the conviction, the fallout would be orie of shaking the system itself. j-IEmce it is riecessal-y that the court should not aid the public servant who sfands convicted for -corruption charges to hold only (sic) public office until he is exonerated after conducting judicial adjudication at the appellate orrevisional leveL It is different matter if corrupt public officer could continu~ to,hol9 such public . offi.ce even without the· help-of court order· suspending . the conviction.

13. The abov~ poli~y can be acknowl~dged as :necessary

. for the efficacy anti proper functioning of public offfces. If ' .sq, tbe legal position can b~ laid down that ikhen conviction · is· .. on a. corruption charg.e against a· ·public servant the . appellate court or the revisional court should not suspend the order of convicti<;>n during the pe'ndency of the appeal even if .the sentence of imprisonment is suspended. It wouldbe ~sublime public policy tha(the.convicted public ser\iant" is kept under disability of the convictiqn in :spite of keeping the sentence of.imprisonment in abeyLlnce·til! the disposal of the appeaf ·or revision_;, · · · ·

. 9. In ;State of Haryana v. Hasmat [2004(6.) ,,sec 175] it

· was noted as follows: . ·

· · "6.' Sect:ion 389 of the Code deals with suspension of .executiohof ~~htence pending)he:~ppeal.and ·re1ease of ,th.e appellant ·an .bail. There is distinction between bail and· suspension of sentence. One of the ·essential . ingredients of Section 389 is the requirement fot the appeilate court to record reasons· in writing for ordering suspension of execution of the sentence or order appealed. If he is in confinem~nt, the said court can dlre~t that he be released on bail or on his own bond. The requirement ofG-

CENTRAL BUREAU OF INVESTIGATION, NEW DELHI v. M.N. SHARMA [DR. ARIJIT PASAYAT, J.

recording reasons in writing clearly indicates that there has to be careful co.nsideration of the relevant aspects and the order directing ·suspension of sentence and grant of bail should not be passed as matter of routine."

10. It is to be noted that learned Single Judge while direct-ing suspension of conviction indicated no reasons.

11. Above being the position the order of the learned Single Judge, directing the suspension/stay of the conviction cannot stand and is set aside.

12. It is submitted by learned counsel for the appellant that

hearing of the cases was posted to 22.5.2008. Since the cases of both M.N. Sharma and Roshan Lal Saini were not posted, the matter has been adjourned to 22.9.2008. We requestthe High Court to take up the matter and dispose of the appeal"as early as practicable, preferably by end of 2008·. ·

13. Appeal is allowed.

Appeal allowed.