Andhra HC (Pre-Telangana)
V. Sundararami Reddi vs State on 8 August, 1989
Equivalent citations: 1990CRILJ167
Author: K. Jayachandra Reddy
Bench: K. Jayachandra Reddy
JUDGMENT Jayachandra Reddy, J.
1. Whether the Appellate Court, while exercising its powers under S. 389(1) of the Cr.P.C., can suspend the execution of sentence as well as the conviction, pending an appeal preferred by a convicted person, is precisely the question that arises for our consideration in this batch of petitions.
2. The Special Court under A.C.B. and S.P.E. cases at Nellore convicted several public servants belonging to the Irrigation Department and also some contractors, for various offences of misconduct. The accused preferred appeals and also sought for suspension of the operation of the Judgment, which includes the conviction as well as the sentence imposed on them by the trial Court. It may be mentioned here that the public servants involved in those cases were suspended from service, and as per the interim directions of this Court in the writ petitions filed by them, they were reinstated into service and as such they have been continued in service.
3. The learned single Judge, who admitted the Criminal Appeals filed by them, gave a direction in the Crl.M.Ps. filed by them, suspending the operation of the Judgment and also the sentence pending disposal of the Criminal Appeals. Thereafter, the learned Standing Counsel for A.C.B. filed a letter, requesting the matters to be posted for 'being mentioned'. Accordingly, they came up before our learned brother Bhaskar Rao, J. The learned Standing Counsel for the A.C.B. and S.P.E. cases contended before the learned single Judge that under S. 389(1), Cr.P.C., the High Court, as an Appellate Court, has power only to suspend execution of the sentence, and not the conviction, much less the 'judgment' as a whole. On the other hand, on behalf of the accused-appellants it was contended before the learned single Judge that under S. 389(1), Cr.P.C. this Court, as an Appellate Court, has got ample power to suspend the operation of the judgment and that even otherwise also, this Court can invoke power under S. 482, Cr.P.C. and suspend the operations of the judgment.
4. Our learned brother Jagannadha Raju, J. in Crl.M.P. No. 1257 of 1989 in Cr. Appeal No. 450 of 1989, held that under S. 389(1). Cr.P.C. the Appellate Court can suspend only the sentence but not the judgment under which the accused are convicted. He held that where a Government servant is convicted by a Court, the normal course that should follow is that he should be removed from service and that only when he is exonerated and acquitted in the appeal, he would be entitled to be reinstated with retrospective effect and that, therefore, there was no justification for suspending the judgment. This judgment was brought to the notice of our learned brother Bhaskar Rao, J. and the learned Judge could not agree with the view taken by Jagannadha Raju, J. and accordingly having explained the scope and ambit of S. 389, Cr.P.C. has referred this matter to a Division Bench. That is how these matters are before us.
5. Section 389 of the Code of Criminal Procedure, 1973 (for short the 'Code') contained in Chapter XXIX, dealing with Appeals, is in the following terms :
"Section 389, Suspension of sentence pending the appeal, release of appellant on bail :
(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and also, if he is in confinement, that he be released on bail, or on his own bond. (2) to (4)
6. The learned Counsel for the petitioner-accused submits that pending an appeal by a convicted person, the Appellate Court has power to order suspension of the 'execution of the sentence or order appealed against. The only requirement is, that it has to record its reasons for doing so. He submits that S. 374 of the code provides for appeals from convictions and that when such an appeal is preferred by a convicted person, he can ask for the suspension of the sentence as well as the conviction, inasmuch as, the appeal is preferred against the judgment as a whole, which consists of both the reasoning for declaring the offences for which the accused person is convicted as well as the award of sentence. Therefore, according to the learned Counsel, in a given case the convicted person in his appeal can ask the Court to exercise its powers under S. 389(1) of the Code, not only to Suspend the execution of the sentence but also his conviction.
7. Sri E. V. Bhagiratha Rao, learned Standing Counsel for A.C.B. and S.P.E. cases on the other hand, submits that the words 'order appealed against' occurring in S. 389(1) of the Code would cover only some incidental or consequential orders or the orders passed by the Criminal Courts convicting a person without passing sentence, against which an appeal is filed, and do not cover the cases where the Criminal Court convicts a person and pursuant to that passes some sentence of imprisonment or fine. In other words, his submission is that a limited meaning should be assigned to the word 'order' occurring in S. 389(1) of the Code, and it cannot be understood as including the 'conviction' as well.
8. These rival submissions take us to the question whether the words 'order', 'conviction' and 'judgment' have been used in the Cede in different contexts and, whether on a combined reading of some of the relevant provisions in the Code, the Court can discern and say that the 'order' passed by a Criminal Court does not include a 'conviction' by the Criminal Court ?
9. At this juncture, it becomes necessary to consider the scope and ambit of the expression 'judgment' as provided for in Chapter XXVII of the Code. Section 353 of the Code provides that the judgment in every, trial in any Criminal Court of original jurisdiction shall be pronounced in open Court by the Presiding Officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders. Section 354(1) of the Code provides that every judgment of the Criminal Court shall be in the language of the Court and shall contain the point or points for determination, the decision thereon and the reasons for the said decision. Section 354(c) specifically provides that the judgment should specify the offences of which and the section of the Indian Penal Code or other law under which the accused is convicted and the punishment to which he is sentenced. Section 354(1) lays down that if the judgment is a judgment of acquittal, it shall state the offences of which the accused is acquitted and direct that the accused be set at liberty. As against a judgment of conviction an appeal is provided for under S. 374 of the Code. If it is a judgment of acquittal, an appeal is provided under S. 378 of the Code by the State. Section 378 of the Code lays down that the State may direct the Public Prosecutor to present an appeal to the High Court 'from an original or appellate order of acquittal', passed by any Court other than High Court (or an order of acquittal passed by the Court of Session in revision). Therefore, it can be seen from the above that, in S. 374 of the Code which provides for an appeal against conviction, the words 'judgment' or 'order' are not at all used. Section 374 (2) of the Code simply provides that any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by and other court in which a sentence of imprisonment for more than seven years has been passed against him or any other person convicted at the same trial may appeal to the High Court. The judgment in a criminal case may be pronounced either convicting the accused or acquitting him, depending upon the facts and circumstances of that particular case. But, still in Section 378 of the Code, only the word 'order' has been employed. Therefore, it is very difficult to comprehend that the Code makes a distinction between the expressions 'judgment' and 'order in a strict sense.
10. Section 380 of the Code, which deals with, special right of appeal in certain cases reads thus :
"380. Special right of appeal in certain cases : Notwithstanding anything contained in this Chapter, when more persons than one are convicted in one trial, and an appellable Judgment or Order has been passed in respect of any such persons, all or any of the persons convicted at such trial shall have a right of appeal."
In the above section, the expression judgment or order' is used. It is, therefore, contended by the learned Standing Counsel for A.C.B. cases that they must be understood as dealing with two different types of pronouncements. As we have already pointed out the word 'order has to be understood in the context in which it is used in a particular section of the Code. For instance in S. 386 of the Code which deals with the powers of the Appellate Court, the expression 'order' has been employed, particularly in clause (a) thereof, S. 386(a) reads thus :
"386(a). In an appeal from an order of acqaittal reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be."
The above expression 'order' employed does not mean that the pronouncement by the Court acquitting an accused is not 'judgment'. When we come to the powers of the Appellate Court in an appeal from a conviction clause (b)(i), of S. 386 postulates that the Appellate Court may reverse the finding and sentence and acquit or discharge the accused. or order him to be re-tried by a Court of competent jurisdiction, subordinate to such Appellate Court or committed for trial. Here, the expression 'judgment' or 'order' is not employed. But the language of clause (b)(i) of S. 386 which employs the expression 'or order him to be retried does not mean what the Appellate Court pronounces is not a 'judgment. We are referring here only to some of the provisions in the Code where the expressions 'judgment' or 'order' were employed. There are "many such provisions in the Code, and it is not necessary to refer to those provisions for the purpose of this case.
11. In our view, these two expressions viz., 'judgment' and 'order' have to be understood, whenever they occur in any particular Section of the Code, in the context in which they are employed. An order of conviction, as we have already noted, is a part of the 'judgment' and the same is followed by a sentence, if awarding of sentence is necessary. But even if the Court finds a person guilty of an offence and releases him either under the provisions of S. 360 of the Code or under the provisions of the Borstals Schools Act or the Children Act. nevertheless, it amounts to an order of conviction, forming part of the judgment as a whole. We must also bear in mind that the Code has nowhere defined the expressions 'judgment'' or 'order'. When once it is accepted that a convicted person in his appeal challenges the judgment as such, pronounced against him by a Criminal Court, it is axiomatic that he can ask for suspension of execution of the sentence, if there is a sentence. He can as well ask for suspension of the operation of the conviction which is a part of the judgment, if that becomes necessary in a given case.
12. It may be argued that 'conviction' is only a declaration, declaring that the accused person is convicted of the offence or offences proved against him and that, therefore the same can be set aside only by the Appellate Court, But, the Code provides for suspension of the rigour of the judgment passed by the trial Court, pending disposal of the appeal. In some cases the conviction may not be of any effect till the appeal is finally disposed of and it may suffice for the convicted person to seek only the syspension of the execution of the sentence. But, there may be cases where the convicted person may seek relief by way of suspension of the conviction as such, till the appeal is disposed of Such cases may arise particularly in election matters etc. For instance, the decision in Vidya Charan Sukla v. Purshottam Lal Kaushik. , is a case where a candidate for an election was sought to be disqualified during course of scrutiny of the nomination papers. The objection raised was that the candidate was sentenced by a Criminal Court to undergo rigorous imprisonment for a period of two years and that, therefore, he is disqualified from contesting the election as per the provisions of the Representation of the People Act. But, the Returning Officer accepted the nomination papers overruling the objection and the candidate succeeded in the election. Thereupon, the unsuccessful candidate filed an election petition. By the time the election petition came up before the High Court for hearing, the conviction and sentence passed against the candidate were set aside by the Appellate Court while allowing the Criminal Appeal preferred by the candidates. Yet, the High Court took the view that the crucial date is the date of filing of the nomination papers and the scrutiny thereof, and on that date the conviction and sentence were subsisting and only the sentence was suspended but the conviction was there, and that, therefore, he stood disqualified on that date, and consequently his election was null and void. The matter was carried in appeal to the Supreme Court and the Supreme Court reversed the judgment of the High Court. Holding that when once the conviction and sentence are set aside in an appeal, the acquittal dates back to the date of conviction and it is wiped off from that date, and consequently it must be legally presumed that the conviction was not subsisting on the date the nomination paper was filed. In that view of the matter, the Supreme Court allowed the appeal.
13. Now at the stage of filing of nomination papers if the accused person approaches a Criminal Appellate Court by way of an appeal and seeks suspension of the conviction and the execution of sentence so that he can file his nomination papers, can it be said that even if the Appellate Court is very much satisfied that prima facie there is a case for suspension of the conviction so that the accused person can participate in the election, still it has no power to suspend such a conviction ? For instance, in the case mentioned supra, if the nomination papers have been rejected on that ground, then the. candidate could not have participated in the election and even if his conviction and sentence were set aside later in appeal, that would have been of no avail. But, somehow in that case, the nomination papers were accepted. But, before, such scrutiny took place, the convicted person could ask for suspension of the conviction, so that it should not be a legal bar for his participating in the election or other affairs. There may be quite a few such cases, which may include the discharge from service of a public servant or where applications have to be filed for passports etc. No doubt, the suspension of conviction as such cannot ordinarily be ordered in a routine manner. A greater scrutiny has to be applied by the Appellate. Court, and in exceptional cases or appropriate cases only where the Court is satisfied prima facie that the facts and circumstances warrant granting of such a relief pending the appeal, it should be granted in the interests of justice. There are cases where even the entire findings in the judgment of a Criminal Court are to be accepted, particularly in a case of circumstantial evidence, a prima facie case may not be made out at all. In such cases, there can be no harm if the Court exercises its discretion. At any rate, what we are concerned with in this batch of petitions is whether an appellate Court has power under S. 389 of the Code to suspend the operation of the judgment, which includes the 'conviction'. As we have already noted, under S. 389 of the Code, the Court can order suspension of the execution of sentence as well as the 'order appealed against. The words 'order appealed against' must be given a wider meaning as to include 'conviction' also, so that the Court in appropriate or exceptional cases can suspend an order of 'conviction'. We have taken this view having regard to the basic fact that the judgment of the trial Court as a whole, convicting the appellant is before the Appellate Court and the judgment declares conviction as well as the sentence, and also that the Appellate Court has got wide powers to alter a finding or reverse a finding, or sentence and even to acquit an accused. That being so. we find it difficult to hold that under S. 389(1) of the Code the Appellate Court has no power to suspend 'conviction'.
14. Even otherwise, there is S. 482 of the Code under which the High Court has got inherent powers. It is sought to be argued by the learned Standing Counsel for A.C.B. cases that when once there is a specific provision, viz. Section 389 in the Code, which deals with suspension of execution of sentence or order, then S. 482 of the Code cannot be resorted to. But, if the argument of the learned Counsel is to be accepted that the Appellate Court has no power under S. 389(1) of the Code to suspend the 'conviction' pending the appeal, then in some appropriate or exceptional cases only some of which we have already referred to, the convicted person may be compelled under the circumstances to invoke the inherent jurisdiction under S. 482 of the Code. It is well settled that S. 482 of the Code cannot be invoked in a matter where there is a specific provision in the Code regarding such matter. There cannot be any dispute about this proposition. But, what we are holding is that even if it is to be held that under S. 389(1) of the Code a conviction cannot be suspended, the convicted person may invoke S. 482 of the Code, and it is for the Court to consider whether any relief can be granted or not.
15. Therefore. we agree with the view taken by our learned brother Bhaskar Rao, J. Since the petitioners were in service on the date of conviction, they can be continued in service. Therefore, the order of suspension of the operation of the judgment, that is to say. the conviction passed in the above Crl.M.Ps. need not be disturbed.
16. The reference is answered accordngly.
17. Order accordingly.