Allahabad High Court
Ram Rakshapal Singh vs Superintendent Of Police, Railways And ... on 23 August, 2002
Equivalent citations: 2002(4)AWC3201
Author: Sunil Ambwani
Bench: Sunil Ambwani
JUDGMENT Sunil Ambwani, J.
1. Heard Shri Daya Shankar Misra, learned counsel for the petitioner, and learned standing counsel.
2. With the consent of both the parties, this writ petition is being decided at the admission stage. Petitioner was selected and appointed as Constable in Civil Police, Uttar Pradesh in January, 1985. In November, 1996, while he was still posted at G.R.P., Shahjahanpur, he was suspended from service on the charge of registration of a Criminal Case No. 659 of 1996 under Section 302, I.P.C., police station Majhaula, district Moradabad. In Sessions Trial No. 207 of 1997, State v. Sanjay and Ors., under Section 302/34, I.P.C. the Additional District Judge-7, Moradabad convicted petitioner Ram Rakshapal Singh having found him guilty for offences punishable under Section 302/34, I.P.C. and sentenced him to undergo imprisonment for life. The Superintendent of Police, Railways, Lucknow, by his order dated 22.6.2001 dismissed petitioner under Rule 8 (2) (A) of U. P. Subordinate Police Officers (Punishment and Appeal) Rules, 1991, with immediate effect on the ground of his conviction and sentence of life imprisonment. In the same order, it was stated that in view of the heinous crime of murder committed by the petitioner for which he had been sentenced for life imprisonment, it was not proper for him to continue on the post of Constable in the civil police, which is a disciplined force.
3. The petitioner along with others convicted and sentenced in the aforesaid sessions trial filed a Criminal Appeal No. 1199 of 2001, Sanjai and three Ors. v. State of Uttar Pradesh. This Court by its order dated 9.11.2001 suspended the order of conviction and sentence of appellant No. 2, Mahendra Pal Singh, and appellant No. 3, Ram Rakshapal Singh. The order passed by this Court is quoted below ;
"Heard appellants' counsel Sri D.S. Misra and learned A.G.A. It is submitted by the appellants' counsel that appellant No. 2, Mahendra Pal Singh is a teacher and appellant No. 3 Ram Rakshapal Singh is a police constable in G.R.P. and therefore, a prayer has been made to suspend the order of sentence during pendency of their appeal in this Court. Perused the order dated 31.8.2001 and it is directed that the following words be added to that order:
Pending appeal the order of conviction and sentence of appellant No. 2, Mahendra Pal Singh and appellant No. 3, Ram Rakshapal Singh shall remain suspended,"
4. After the aforesaid order, the petitioner filed a representation before the Superintendent of Police, Railways, Lucknow, to reinstate him in service on the ground that his conviction and sentence has been stayed by the High Court. It appears that the respondent refused to consider his reinstatement on which the petitioner has filed this writ petition for a writ of certiorari for quashing the impugned order of dismissal dated 22.6.2001 passed by the Superintendent of Police, Railways, Lucknow and to reinstate the petitioner and treat his services with effect from 22.6.2001 on which the order of termination has been passed.
5. It is submitted by Sri D.S. Misra on behalf of the petitioner that petitioner's services were terminated only on the ground of his conviction and sentence of life imprisonment awarded to him in Sessions Trial No. 207 of 1997. After the stay of his conviction and sentence, the entire basis of the order of dismissal has been taken away and; as such, the petitioner is entitled for reinstatement. He has relied upon a judgment of the Supreme Court in Smt. Akhtari Bi v. State of Madhya Pradesh, 2001 (2) JIC 163 and a judgment of this Court in Sada Nand Misra v. State of U. P., 2000 (1) AWC 180 (LB) : 2000 (1) LBESR 588.
6. In Smt. Akhtari Bi v. State of Madhya Pradesh (supra), the Supreme Court was considering the expeditious disposal of criminal appeals pending before the Madhya Pradesh High Court. In the context of expeditious trials, it was observed in para 5 as follows :
"This Court, has time and again, reminded the Executive of their obligation to appoint requisite number of Judges to cope with the ever increasing pressure on the existing judicial apparatus. Appeal being a statutory right, the trial court's verdict does not attain finality during pendency of the appeal and for that purpose his trial is deemed to be continuing despite conviction."
7. In Sada Nand Misra v. State of U. P. (supra), this Court while considering the effect of stay of the sentence by an appellate court observed in paras 22 and 23 as follows :
"22. In view of the above, in my opinion, it was necessary to write in the impugned order that due to the conduct of the petitioner which had led to his conviction, his further retention in the public service was undesirable. In the absence of such indication and due to merely mentioning the reason of his conviction, for passing the impugned order of removal, such an order of removal is bad in law.
23. Moreover, when the order of conviction and punishment appealed against was stayed by this Court in exercise of powers conferred under Section 389, Cr. P.C. as well as Section 482, Cr, P.C. the conviction order could not have been considered at all till the existence of the aforesaid stay order and hence the order passed in appeal is also illegal."
8. Learned standing counsel appearing for the respondents, on the other hand, submits that the petitioner was not dismissed only on account of his conviction and sentence of life imprisonment in Sessions Trial No. 207 of 1997. The matter was considered by the competent authority and it was found that it was not proper for the petitioner to continue in the disciplined force after being convicted and sentenced to life imprisonment for committing a heinous crime of murder. According to him, Section 389(1), Cr. P.C. provides for powers of the appellate court for stay of execution of the sentence and order. It does not provide for stay of conviction. According to him, the suspension of execution of sentence does not affect his conviction and that the conviction does not lose its efficacy and sting. In such cases, the sentence is not obliterated, but is kept in abeyance. The conviction, in the present case, continues and is not wiped out. The petitioner was not dismissed only on account of his conviction and sentence of life imprisonment in the sessions trial, but the competent authority considered its effect upon continuance of the petitioner's services in the police force and found that it was not proper for him to serve. According to the learned counsel for the respondents, to allow a police constable convicted under Section 302/34, I.P.C. and sentenced to life imprisonment in police service will seriously affect public faith in police and thus, as a matter of public policy, the petitioner should not be permitted to serve until he is acquitted for the offence in appeal.
9. Learned counsel for the respondents has relied upon a judgment in K.C. Sareen v. C. B. I., Chandigarh, 2001 (6) SCC 584 ; B.R. Kapoor v. State of Tamil Nadu, (2001) 7 SCC 231 ; Union of India v. Ramesh Kumar, AIR 1997 SC 3531 and S. Vasundara v. Canara Bank, 1997 (9) SCC 523.
10. In K.C. Sareen v. C.B.I., Chandigarh (supra), the Supreme Court relied upon Rama Narang v. Ramesh Narang, (1995) 2 SCC 513, in which it was held that the order of conviction by itself is not capable of execution under the Code. It is the order of sentence or an order awarding compensation or imposing fine or release on probation which are capable of execution and which. If not suspended, would be required to be executed by the authorities. Since, the order of conviction does not on the mere filing of an appeal disappear, it is difficult to accept the submission that Section 267 of the Companies Act must be read to apply only to a 'final' order of conviction. The Supreme Court further found in para 10 that in certain situations, the order of conviction can be executable, in the sense, it may incur, a disqualification as in the instant case. In such a case, the power under Section 389(1) of the Code could be invoked. In such situations, the attention of the appellate court must be specifically invited to the consequences which are likely to fall, to enable it to apply its mind to the issue ; since under Section 389(1), Cr. P.C., it is under an obligation to support its order 'for reasons to be recorded by it in writing'. If the attention of the Court is not invited to this specific consequence which is likely to fall upon conviction, how can it be expected to assign reasons relevant thereto? No one can be allowed to play hide and seek with the Court ; he cannot suppress the precise purpose for which he seeks suspension of the conviction and obtain a general order of stay and then contend that the disqualification has ceased to operate. Thereafter, the Court referred to public policy in which corruption by public servants was considered and it was held that if such a pubic servant convicted and sentenced under the Prevention of Corruption Act becomes entitled to hold public office and is permitted to do official acts until he is Judicially absolved, from such findings, by reason of suspension of the order of conviction, the public interest shall suffer irreparably. Para 13 of the judgment which provides that in such cases, the convicted public servant must be kept under the disability of the conviction in spite of keeping the sentence of imprisonment in abeyance. The Supreme Court finally held that in such cases, the power to order suspension of conviction either under Section 389(1) or under Section 482, Cr. P.C. should not have been exercised.
11. In B.R. Kapoor v. State of Tamil Nadu (supra), a constitution Bench of the Supreme Court held that High Court has power to suspend execution of sentence and not the sentence. The suspension of the execution of sentence does not affect the convictions and that the sentence imposed continues to incur disqualification from seeking legislative office.
12. In Union of India v. Ramesh Kumar (supra), it was held that the appellate court's suspending execution of sentence in appeal does not amount to the conviction losing its efficacy. The sentence is not obliterated. It is only postponed and kept in abeyance. In S. Vasundara v. Canara Bank (supra), the Supreme Court held that in case a finding of fact has been recorded by criminal court, though the sentence was suspended by the High Court in appeal, the authorities were still competent to take action under Regulation 11 of the Canara Bank Officials Employees (Discipline and Appeal) Regulations which provided that an office employee convicted and sentenced of charges or from the strength of facts or conclusions arrived at by judicial trial can be inflicted any of the penalties specified in Regulation 4.
13. Coming to the facts of the present case, the judgment in Sessions Trial No. 207 of 1997 convicting the petitioner and sentencing him to life imprisonment shows that a pre-meditated coldblooded murder of Neeraj Tyagi was committed by Sanjai, Mahendra Pal Singh, Tej Singh and Ram Rakshpal Singh. Petitioner Ram Rakshpal Singh, Constable, G.R.P., Shahjahanpur, is the real brother of accused Mahendra Pal Singh. The families of the deceased were on visiting terms and that it had come in evidence that Km. Babita, daughter of accused Mahendra Pal Singh had written some letters to the deceased. On 13.11.1996, when Smt. Ranjana Tyagi along with his mother and brother deceased Neeraj Tyagi were going to railway station at about 3.30 p.m., all the four accused met them in front of the shop of Chunnu. The deceased Neeraj Tyagi demanded Rs. 5,000 from Sanjai which he had taken on loan on which Sanjai said that he is insulting them and today he will pay off the money and that all the four accused started wielding knives on his brother who fell down sustaining the injuries. Neeraj was stabbed several times by the accused and died of stab injuries. Two knives involved in the crime were recovered embedded in the earth and the accused were charge-sheeted under Section 302, I.P.C.
14. The petitioner was placed under suspension and on account of conviction and sentence of life imprisonment, it was found proper not to continue him in service and was dismissed from service under Rule 6 (2) (A) of the U. P. Police Officers Subordinate Category (Punishment and Appeal) Rules, 1991. The order in Criminal Appeal dated 9.11.2001, shows that upon hearing the counsel for the petitioner and his submission that Mahendra Pal Singh is a teacher and Ram Rakshpal Singh is a police constable, a prayer was made to suspend the order of sentence. This prayer appears to have been made after the order dated 31.8.2001 was passed, by way of an application on which the conviction and sentence of Mahendra Pal Singh and petitioner Ram Rakshapal Singh was suspended. There is nothing on the record to show, as it does not transpire from the order, that the Court was informed with the fact that the petitioner was dismissed from service, and that the order staying conviction was passed by the Court after taking into consideration the fact that the petitioner was a police constable in G.R.P. and had suffered dismissal on account of his conviction and sentence of life imprisonment.
15. In Rama Narang v. Ramesh Narang (supra), the Supreme Court held that an order under Section 3(1) staying conviction must specifically consider the consequences which are likely to fall to enable it to apply its mind and that the Court is under obligation to support its order 'for reasons to be recorded by it in writing' and if attention of the Court is not invited to the conclusions which are likely to fall upon conviction, it was not expected to assign reasons. In the present case, a bare perusal of the order shows that the Court was not informed and did not have the occasion to consider that the petitioner had been dismissed from service on account of his conviction and sentence. In any case, as held in B.R. Kapoor v. State of Tamil Nadu (supra). Union of India v. Ramesh Kumar (supra) and S. Vasundara v. Canara Bank (supra), it was held that even if the High Court had suspended the operation of the judgment which includes conviction and sentence, a conviction recorded by the trial court is not obliterated. It is still a conviction with a presumption that the petitioner is not required to undergo sentence pending appeal in the High Court.
16. In Smt. Akhtari Bi v. State of Madhya Pradesh (supra), the Supreme Court was not deciding the effect of the orders passed under Section 389(1), Cr. P.C. and that in Sada Nand Misra v. State of U. P. (supra), the Court was considering the question whether conviction alone is a ground to punish a Government employee and held that conviction by itself cannot be the basis for punishment and that the appointing authority must consider the effect of conviction and the fact whether further retention in public service is desirable. In the present case, the competent authority after going into the facts and findings of the Court leading to the conviction has considered the effect of conviction and sentence upon continuing the petitioner- in service and held the dismissal cannot be held to be bad in law. The effect of the stay of the order of conviction and punishment was not considered which has been considered in detail thereafter by the Supreme Court in Rama Narang v. Ramesh Narang and Ors. cases, cited above.
17. The Court further finds that the petitioner was dismissed from service on account of his conviction and sentence on 22.6.2001, and that the order staying the conviction was passed on 9.11.2001. On the date, the dismissal order was passed, the conviction and sentence was operative and thus the dismissal order cannot be held to be bad in law. The dismissal order, therefore, cannot be quashed on the ground that after making the order, the conviction and sentence have been suspended.
18. Coming to the last prayer of the counsel for the petitioner to direct the Superintendent of Police Railways, Lucknow, to consider the petitioner's application, the Court finds that it would be against public policy, to direct the authority to consider reinstatement of a constable who has been convicted and sentenced to life imprisonment for having committed a pre-meditated cold-blooded murder. It would be a travesty of justice, and the general public will lose confidence and faith in police if such persons as petitioner who have been convicted and sentenced to life imprisonment, are allowed to serve on the ground that their conviction and sentence have been suspended. In case the appeal is dismissed and the conviction and sentence are upheld, a wholly undesirable person will continue to serve in police force. Public policy as such restrains the Court to give any such direction to the respondents. The Court further restrains itself from considering the effect of reinstatement of similarly situated employees by the Senior Superintendent of Police, Moradabad, by his order dated 11.4.1996. Perhaps the police authorities at that time did not have the advantage of legal opinion based on later decisions.
19. In the facts and circumstances of the case, the writ petition is misconceived and is dismissed.