Md Dilawar Mir vs Central Bureau Of Investigation on 19 November, 2014

[Cites 16, Cited by 2]

Delhi High Court

Md Dilawar Mir vs Central Bureau Of Investigation on 19 November, 2014

CRL.M.(B) 10918-10919/2014 These applications seek stay of the impugned judgment on conviction dated 27.09.2014; as well as the impugned order on sentence dated 01.11.2014 qua the appellant-Md Dilawar Mir, passed by the Special Judge, CBI, in CC No. 71/11, by which the appellant has been convicted under Section 120B IPC and with Section 13(1)(d)(ii) read with Section 13(2) of the Prevention of Corruption Act, 1988; and sentenced to three years rigorous imprisonment with a fine of Rs. 2 Lakhs and Rs.3.19 crores towards compensation; all of which is to be deposited within six weeks.

Admittedly, the appellant has been on bail throughout and has spent no time in judicial custody either during the period of investigation or Crl.Appeal No.1535/2014 Page 1 of 10 during trial. Further, pursuant to his application under Section 389(3) CrPC, the trial court suspended his sentence of imprisonment and admitted him to bail till 02.01.2015, to enable him to prefer an appeal. Also, no part of the aforesaid amount of Rs.3.21 crores has been deposited by the appellant till now.

In addition to suspension of execution of his sentence, the appellant also seeks suspension of his conviction, primarily on the ground that he wants to contest the recently announced elections to Jammu and Kashmir Legislature. He claims to have been elected six times in the past to that Assembly, the last time being in the year 2008. However, at present, he is not a sitting member of the Jammu & Kashmir Legislature; nor did he hold such office at the time when the contract in question was awarded to him to oversee and forward fertilizers on behalf of National Fertilizers Ltd. (NFL), and the offence was committed.

In support of his case, counsel for the appellant contends that the appellant also has a Fundamental Right under the Constitution of India to vote and to seek election. In this context, he has also referred Lily Thomas v. Union of India, (2013) 7 SCC 653, whereby Section 8(4) of the Representation of People Act, 1951, which granted a sitting Legislator a stay of conviction for three months to enable him to approach the appellate court for appropriate orders, has been declared ultra vires and struck down. He submits that after the decision in the case of Lily Thomas (supra), both sitting Legislators and others intending to stand for election, face the same disqualification in terms of Section 8(1) (m) read with Section 8 (1) (2) of the Representation of the People Act, 1951. He has then sought to link this proposition with the decision of the Supreme Court in Rama Narang v. Ramesh Narang, (1995) 2 SCC 513, which has held that when a legislation Crl.Appeal No.1535/2014 Page 2 of 10 creates a disqualification because of a conviction; then it is open to the Court to stay that conviction. He relies on paragraph 19 thereof which states as follows;

19. ... In a fit case if the High Court feels satisfied that the order of conviction needs to be suspended or stayed so that the convicted person does not suffer from a certain disqualification provided for in any other statute, it may exercise the power because otherwise the damage done cannot be undone; the disqualification incurred by Section 267 of the Companies Act and given effect to cannot be undone at a subsequent date if the conviction is set aside by the Appellate Court. But while granting a stay of (sic or) suspension of the order of conviction the Court must examine the pros and cons and if it feels satisfied that a case is made out for grant of such an order, it may do so and in doing so it may, if it considers it appropriate, impose such conditions as are considered appropriate to protect the interest of the shareholders and the business of the company."

Of course, the aforesaid proposition is unexceptionable. However, it must be read as a whole. In substance, what it means is that any such disqualification based on a conviction has to be treated with caution, and if the appellate court admits an appeal impugning that conviction, it must examine all relevant circumstances carefully to decide whether the conviction deserves to be stayed, mindful of the fact that it may be impossible to undo the consequences visited on the convict even if he were to eventually succeed in his appeal. This, however, does not mean that the test before the appellate court is restricted merely to that outcome alone. In other words, it cannot be presumed that in every case where it is demonstrated that the damage due to the disqualification cannot be undone if the appellant were to succeed some months or even years later, such disqualification should not be allowed to operate at all during the pendency of the appeal. There has to be something more. If the test was that simple, Crl.Appeal No.1535/2014 Page 3 of 10 then the aforesaid paragraph 19 of Rama Narang's case (ibid), reproduced above, would have been couched in very different language and in absolute terms, which it is not. Also, it would not have been necessary for the Supreme Court to state that the appellate court should examine the pros and cons and arrive at an appropriate conclusion in each individual matter.

Further, to my mind, if the argument that the appellate court is consequently bound to suspend the conviction in all such cases, is accepted, it would result in the automatic suspension of conviction in the case of every convict, who expresses the intention to contest elections, for the mere asking; more so, when elections in India are common, in the sense that each State, apart from Assembly elections, holds elections for Municipal Corporations, Panchayats, etc., in addition to the general elections and by- elections etc., so as to create a virtual blanket concession to that extent to convicted felons who express the intention of seeking public office.

Counsel for the appellant has tried to draw a distinction between the decision in K.C. Sareen v. CBI, Chandigarh [(2001) 6 SCC 584] which has, inter alia, held that where a public servant was convicted of corruption and misuse of the very office he held, he should not be permitted to continue to discharge the duties to that office by suspending his conviction, since it would be deleterious and result in serious loss of public confidence; by pointing out that in the instant case, the appellant held no public office, nor has he been held guilty of misusing any office held by him, and therefore, the reasons given by the Supreme Court against the suspension of conviction in such cases are not applicable to the instant case.

At the same time, counsel for the appellant has also tried to rely on the decision of the Supreme Court in Navjot Singh Sidhu v. State of Punjab (2007) 2 SCC 574 to draw some sort of parity between Sidhu's Crl.Appeal No.1535/2014 Page 4 of 10 case (supra) and the case at hand since, according to him, the appellant in Sidhu's case, as well as the appellant before this Court, were not holding any public office at the time of the incident in question. He submits that, therefore, since the appellant, Sidhu, was granted stay of his conviction. Therefore, it must follow that the appellant in this case should also be granted similar relief.

In substance, counsel for the appellant states that while on the one hand, the interdict is that a person should not be enabled to function in public office by virtue of a stay, whereas in this case, if a stay were to be given, it would merely be enabling the convict/appellant to seek election to or to hold a public office and then discharge public functions thereafter. He further submits that the distinction is that in the earlier cases, a public servant is already convicted of misusing the public office, which he is sought to be prevented from holding by the refusal of the court to stay the conviction; whereas in the instant case, admittedly, the appellant/convict was not holding any public office when he was convicted.

I do not agree, in the instant case also, whilst it is correct that the appellant himself did not hold any public office, one thing is clear, the appellant has been convicted of having closely conspired in the misuse of a public office by a co-accused to the common benefit of all the accused persons; and he now seeks a suspension of that conviction so that he may become entitled to seek public office in his own right as a Legislator, through election. Undeniably the holders of Public Office; whether under the Government of India or as Members of a Legislature; must be men of unimpeachable integrity. What is important and material here is not so much the nature of the public office in question but rather the demonstrated Crl.Appeal No.1535/2014 Page 5 of 10 propensity of the appellant to misuse public office. Such misuse may be direct, in that the convict was occupying the very office itself at the relevant time, or it may be indirect, in the sense that, the convict has connived at and influenced the misuse of such an office. Further, if the propensity is there it matters not whether the office he may become entitled to hold as a result of interim orders by the Court, is the same office that was misused or an entirely different one. What is relevant is that it is indeed a public office. In case, a convicted felon is facilitated in any way by the courts to attain that office; albeit by staying his conviction; it could seriously erode public confidence, not only in the office concerned, but also in the judicial system. In the case at hand there is no gain saying the fact that suspending the appellant's conviction would have the effect of enabling him to take steps to hold public office.

To my mind, there is no parity at all between the instant case and that of Navjot Singh Sidhu's case. In Sidhu's case, no public office was involved even indirectly. Further, Sidhu happened to be a sitting legislator, who resigned upon conviction with the intention of seeking a fresh mandate in the by-election. At the same time, and for all the reasons given in the preceding paragraphs, the ratio of K.C. Sareen's case, which is simply this, that the courts ought not to stay an order of conviction that may facilitate the appellant to hold public office after he has been convicted of abusing a public office; is clearly attracted to the circumstances of this also.

Here, the facts show that the distance of the appellant from public office is not far. He was dealing with holders of public office with a view to earning profit, and he has been held guilty of abetting and conspiring with the common intention to misuse that public office. He is a co-accused to that misuse. From being an abettor and co-conspirator in the past to the misuse Crl.Appeal No.1535/2014 Page 6 of 10 of a public office, by virtue of a stay of conviction, this court may, in effect, enable him to occupy a public office on his own. This is something this Court cannot countenance and, to my mind, there is no precedent in law that sanctions such a state of affairs.

Counsel for the appellant has also tried to distinguish the case of Sanjay Dutt v. State of Maharashtra [(2009) 5 SCC 787] by submitting that the offence in Sanjay Dutt's case was under Arms Act; and the petitioner therein had sought to contest elections for the first time, which is not the case here. He further submitted that the credentials and antecedents of the appellant have been clean, and he has been elected and re-elected as many as six times. This Court is not impressed by this submission. Admittedly, the appellant last held public office in 2008 and not thereafter. And fact remains that after being convicted under the Prevention of Corruption Act involving the misuse of a public office, the appellant is seeking the stay of conviction only to facilitate him to hold a public office.

In response, counsel for the respondent has also submitted that the appellant has admittedly, been in public life since 1977. He is obviously well connected and resourceful and there is cogent evidence to show that he has been influencing governmental decisions including the award of contracts, as in the instant case. On facts, he has pointed out from the record that the appellant's request for the contract in question was forwarded through the Union Minister of State for Chemicals and Fertilizers during the relevant time without following the usual tendering process. Further, contrary to the letter awarding the contract, in fact, no other bids or tenders were considered/called for.

Counsel for the respondent has also drawn the attention of this Court to the schedule of Sub-delegation of Powers to General Manager Crl.Appeal No.1535/2014 Page 7 of 10 (Marketing), Corporate Office of the National Fertilizers Ltd.; and in particular to serial no. 2.2 dealing with the power to enter into contracts and work orders for, inter alia, material handling, transport clearance and Freight, i.e., the matters in question in this case. He contends that despite a specific condition of taking prior approval of the appropriate authorities before the General Manager (Marketing) enters into a contract of the nature of the contract in question, no such approval was taken. He further submits that clear evidence is available on record which shows that the co-accused General Manager (Marketing) had no authority to enter into the contract in question, yet appellant was a beneficiary of Rs.30 lacs through the contract in question. Counsel for the respondent-CBI has submitted that the trial court judgement convicting the appellant cannot be termed perverse or without evidence, and there is sufficient material to show that the appellant was able to influence the discharge of public functions and has conspired with the co-accused in misusing public office to his benefit.

Counsel for the respondent-CBI has also relied on Jalal Ahmed Mazumdar v. State of Assam [(2008) 2 Gau 509] to support the proposition that the conviction of an appellant cannot be suspended merely to enable him to contest an election. Such suspension is warranted only in exceptional cases. He submits that the conviction of an appellant can be suspended only if the facts of his case so merit. He further submits that the present case is not one where the appellant stands convicted without any evidence; and for that reason also, his conviction must not be stayed merely because he seeks to contest elections.

Crl.Appeal No.1535/2014 Page 8 of 10

To my mind, therefore, keeping in mind all the relevant facts and circumstances of the case, this is not a fit case for suspension of conviction of the appellant.

However, the execution of sentence of imprisonment shall remain suspended pending disposal of the appeal, provided that out of Rs.3 crores and 19 lacs compensation directed to be deposited, the petitioner shall deposit Rs.25 lacs within one week and Rs.75 lacs within eight weeks from today, with the Registry of this Court. The said amount shall be placed in an appropriate fixed deposit by the Registrar to be renewed from time to time and shall be subject to further orders of this Court. In addition, he shall also deposit the fine of Rs.2 lacs within two weeks from today. As regards the remaining amount of Rs. 2.19 crores, the same shall be paid by the appellant along with appropriate interest in case the appeal is finally decided against him subject to the appellant filing a full disclosure on affidavit of his current immovable assets along with an undertaking not to either directly or indirectly diminish their marketable and realizable value below Rs. 2.25 Crores at least, without prior permission of this Court. The said affidavit to be filed within one week from today.

Needless to say the orders dated 01.11.2014 passed by the court below in the matter and pertaining to the appellant suspending the sentence of imprisonment, and also granting him time to pay the fine and compensation, stand modified to that extent. At the same time, the bail bond furnished by the appellant in the court below that was accepted by that court on 01.11.2014 till 02.01.2015 shall now be extended for the duration of the appeal on the same terms.

The surety, Shri Naveen Prothi, who had stood surety for the appellant, is present in person in Court today. He has also handed over his Crl.Appeal No.1535/2014 Page 9 of 10 Identity Card bearing No. UBV1184126 issued by the Election Commission of India in Court today. He states that he has no objection to the extension of the bail bonds and also, the period for which he is standing surety and that he shall remain bound by the same.

It is made clear that the appellant shall remain present in person at the time of hearing of the appeal.

The applications stand disposed off in the above terms. A copy of this order be given dasti under the signatures of Court Master.

SUDERSHAN KUMAR MISRA (Judge) NOVEMBER 19, 2014 Crl.Appeal No.1535/2014 Page 10 of 10

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