Bombay High Court
Mahijibhai Kabhai Vasav vs The State Of Maharashtra on 3 March, 2009
Author: A.S.Oka
Bench: A.S.Oka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.172 OF 2009
IN
CRIMINAL APPEAL NO.32 OF 2009
Mahijibhai Kabhai Vasav ...Applicant
vs.
1.The State of Maharashtra
2.The CBI, ACB, Mumbai ...Respondents
Mr.Girish Kulkarni with Mr.Vinit Jain for the applicant
Shri S.R.Shinde with Ms Heena Shah for C.B.I.
Mr.Y.S.Shinde A.P.P. for State
CORAM: A.S.OKA,J.
DATE : MARCH 3,2009
JUDGMENT:
1. Heard the learned counsel for the applicant and the learned counsel for the respondent. The applicant has been convicted for offence under section 7 as well as under section 13(2) r/w section 139(1)(d) of the Prevention of Corruption Act,1988. The Appeal has been admitted and the applicant has been enlarged on bail.
2. The prayer in this application is for suspension/stay of the order of conviction dated 11th December 2008. The learned counsel for the applicant has taken me through the notes of evidence and the impugned Judgment and order. He submitted that the complainant in the present case was blind and in any case he is declared hostile as he stated that he was not knowing the applicant-accused. He pointed out that P.W. 3 has also not supported the applicant. He pointed out that except the order of sanction, there is no other material on ::: Downloaded on - 09/06/2013 14:23:00 :::
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record against the applicant. It is submitted that this was a case of no evidence and therefore, the impugned order is perverse. He pointed out that even according to the prosecution case, the bribe amount was recovered from the cabin of the co-accused Mr.Rana and the said co-accused has been discharged.
3. It is submitted that on the basis of the impugned Judgment and Order which is perverse, the applicant will continue to remain out of service and reach the age of superannuation as his present age is 57 years. It is submitted that the appeal is not likely to be heard in near future and therefore, this is a fit case for suspension of order of conviction.
4. The learned counsel for the applicant relied upon the decision of this court in case S.Manik Reddy S/O S.Sanganna Reddy Vs. State of Maharashtra [2009 All M.R.(Cri) 164]. He submitted that this court has exercised power under section 389 (1) of the said Code for suspending the conviction for the offence punishable under section 13(1) (d) r/w 13(2) of the said Act of 1988. He submitted that the Apex Court has repeatedly held that there is a power vesting in the Appellate Court to suspend conviction but the said power has to be exercised in rare and exceptional cases. He submitted this is one of the rare and exceptional case where there is complete absence of evidence against the applicant.
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5. It will be necessary to refer to the law laid down by the Apex Court on this aspect. The first relevant decision on this aspect is the case of K.C.Sareen Vs. CBI Chandigarh [(2001) 6 SCC 584]. This was a case where a public servant was convicted and sentenced for corruption charges. High Court admitted the Appeal and suspended the sentence during the pendency of the Appeal. The application for suspension of conviction was moved by the accused which came to be rejected.
An Appeal was preferred to the Apex Court which has been dismissed by the Apex Court.
6. In paragraph 11 of the decision, Apex Court has observed that power to suspend the order of conviction apart from the order of sentence, is not alien to the section 389(1) of the said Code but its exercise should be limited to very exceptional cases. After interpreting section 389 (1), in the same paragraph, the Apex Court observed that when the Appellate Court admits appeal filed for challenging the order of conviction or sentence for offence under the said Act of 1988, the superior court should normally suspend the sentence of imprisonment until disposal of the appeal. The Apex Court observed that the suspension of conviction of offence under the said Act of 1988 is a different matter. After considering the scope of power under section 389 of the said Code, in paragraphs 12 and 13 of the Judgment, the Apex Court proceeded ::: Downloaded on - 09/06/2013 14:23:00 :::
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to consider the specific case of the conviction under the said Act of 1988. Paragraphs 12 and 13 of the said decision are very relevant which read thus :
"12. Corruption by public servants has now reached a 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 policy. 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 a public servant is found guilty of corruption after a judicial adjudicatory process conducted by a court of law, judiciousness demands that he should be treated as corrupt until he is exonerated by a superior court. The mere fact that an appellate or revisional forum has decided to entertain his challenge and to go into the issues and findings made against such public servants once again should not even temporarily absolve him from such findings. If such a public servant becomes entitled to hold public office and to continue to ::: Downloaded on - 09/06/2013 14:23:00 :::
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do official acts until he is judicially absolved from such findings by reason of suspension of the order of conviction, it is public which suffers and sometimes, even irreparably. When a 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 colleagues or subordinates of the convicted person. I honest public servants are ig compelled to take orders from proclaimed corrupt officers on account of the suspension of the conviction, the fall-out would be one of shaking the system itself. Hence it is necessary that the court should not aid the public servant who stands convicted for corruption charges to hold only (sic) public office until he is exonerated after conducting a judicial adjudication at the appellate or revisional level. It is a different matter if a corrupt public office could continue to hold such public office even without the help of a court order suspending the conviction.
13. The above policy can be acknowledged as necessary for the efficacy and proper functioning of public offices. If so, the legal position can be laid down that when ::: Downloaded on - 09/06/2013 14:23:00 :::
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conviction is on a corruption charge against a public servant the appellate court or the revisional court should not suspend the order of conviction during the pendency of the appeal even if the sentence of imprisonment is suspended. It would be a sublime public policy that the convicted public servant is kept under disability of the conviction in spite of keeping the sentence of imprisonment in abeyance till the disposal of the appeal or revision."
revision.
(emphasis added)
7. Thus, what is held by the Apex Court in paragraphs 12 and 13 is applicable to the cases where the conviction is under the said Act of 1988. In fact, the Apex Court has observed that it would be a sublime public policy that the convicted public servant is kept under the disability of the conviction in spite of keeping the sentence of imprisonment in abeyance till the disposal of the appeal or revision.
8. It will be also necessary to refer to a recent decision of the Apex Court of larger Bench in case of Ravikant Patil Vs. S.S.Bagali [(2007) 1 SCC 673]. In this case the offence complained of was not under the said Act of 1988 but it was under the Indian Penal Code. The appellant before the Apex Court had challenged the order of conviction by preferring an Appeal. The order of suspension of sentence was passed by High court. The appellant moved an application in appeal for ::: Downloaded on - 09/06/2013 14:23:00 :::
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stay of order of conviction which was granted. On the basis of the stay of the order of conviction, the appellant filed nomination for contesting the election of Karnataka legislative Assembly. The appellant was elected. The election of the appellant was challenged by the respondent by filing an Election Petition. High Court came to the conclusion that the appellant was disqualified to contest the election in view of the fact that as on the date of filing of the nomination, the conviction against the appellant was not set aside. Therefore, the matter was carried to the Apex Court. The larger bench referred to the decision in earlier case in case of K.C.Sareen Vs. C.B.I.(supra). In paragraph 16.3 the Apex Court held thus :
"16.3. In K.C.Sareen V. CBI it was held that 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. It was further held that merely because the convicted person files an appeal to challenge his conviction, the court should not suspend the operation of the conviction and the court has a duty to look at all aspects including the ramifications of keeping such conviction in abeyance. The Bench also noted that the evil of corruption has reached a monstrous dimension. While declining the prayer of the appellant for grant of an order of stay of ::: Downloaded on - 09/06/2013 14:23:00 :::
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conviction, the Bench observed that when conviction is on a corruption charge against a public servant, the appellate court should not suspend the order of conviction during the pendency of the appeal, even if the sentence of imprisonment is suspended. The Bench further observed that it would be a sublime public policy that the convicted public servant is kept under disability of the conviction in spite of keeping the sentence of imprisonment in abeyance till the disposal of the appeal or revision. These observations would equally apply when a prayer for stay of order of conviction is made so as to remove the disability to contest an election except, as already noted, in a very exceptional and rare case."
(Emphasis added)
9. Thus the larger Bench of the Apex Court reiterated what has been laid down in paragraph 12 and 13 of the decision in case of K.C.Sareen (supra). The learned counsel for the applicant tried to submit that paragraph 16.5 in the case of Ravikant Patil (supra) holds that power of suspending the conviction can be exercised even in a case where conviction is under the said Act of 1988. The said submission cannot be acceded to as the larger bench of the Apex Court has specifically upheld what is held by the said court in case of K.C.Sareen (supra) and in particular paragraph 12 and 13 thereof. The view taken by the Apex Court is that ::: Downloaded on - 09/06/2013 14:23:00 :::
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notwithstanding the suspension of sentence, the accused who has been convicted under the said Act of 1988 has to be kept under the disability of conviction. Therefore, power to suspend conviction cannot be exercised in case of a conviction under the said Act of 1988.
10. In the present case, we are not dealing with any disqualification which may result from the order of conviction. If the applicant succeeds in the the appeal by getting the order of acquittal, it will be open for him to challenge his removal from employment and if he succeeds in the challenge he will get all the monetary benefits.
Therefore, it cannot be said that by the order of conviction any irreversible situation will be created. Reliance is placed on the decision of this court in the cases of S.Manik Reddy (supra) will not help the applicant because the attention of this court was not invited to the binding precedents in the sense that the decisions of the Apex court in the cases of K.C.Sareen (supra) and Ravikant (supra) were not brought to the notice of this court. Therefore, the decision of this court in case of S. Manik Reddy (supra) cannot be held as a binding precedent laying down a ratio that power to suspend the conviction can be exercised by the Appellate Court in case of an order of conviction under the said Act of 1989. The legal position as reflected from the aforesaid decisions of the Apex Court is to the contrary.
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Hence, relief of suspension of conviction cannot be granted.
11. In view of this legal position, I have not dealt with the submissions made by the learned counsel for the applicant on merits of the case.
12. Application is accordingly rejected.
JUDGE ::: Downloaded on - 09/06/2013 14:23:00 :::