Orissa High Court
Saroj Kumar Misra vs State Of Odisha .Vig. on 15 January, 2018
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
Misc. Case No. 151 of 2017
(Arising out of CRLA No.694 of 2016)
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Saroj Kumar Misra ........ Appellant/Petitioner
-Vrs.-
State of Odisha (Vig.) ........ Respodent/Opp. Party
For Petitioner: - Mr. Asok Mohanty
(Senior Advocate)
For Opp. Party: - Mr. Srimanta Das
Sr. Standing Counsel
(Vigilance)
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing and Order: 15.01.2018
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S. K. SAHOO, J.The appellant/petitioner Saroj Kumar Misra who was the Executive Engineer, NH Division, Berhampur during the year 2002 to 2004 and then posted as Superintending Engineer, Rural Works, Bhubaneswar at the time of filing of the appeal and has retired on suspension in the meantime, has filed this misc. case under section 389 of Cr.P.C. for suspension of his conviction passed by the learned Special Judge (Vigilance), Phulbani in G.R. 2 Case No. 08 of 2013 (v) (T.R. No.08 of 2013) vide impugned judgment and order dated 13.12.2016 in convicting him under section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988 (hereafter '1988 Act') and sentencing him to undergo rigorous imprisonment for two years and to pay a fine of Rs.2,000/- (rupees two thousand), in default, to undergo further R.I. for one month.
2. The petitioner Saroj Kumar Mishra along with co- accused Sudarsan Sahani, Prasanta Kumar Patra and Abakash Padhy were charged under section 13(2) read with section 13(1)(d) of the 1988 Act along with offences punishable under sections 420, 468, 201 and section 120-B of the Indian Penal Code on the accusation of misappropriating government money to the tune of Rs.1,50,000/- (one lakh fifty thousand) in connivance with each other.
The learned trial Court acquitted the co-accused Abakash Padhy of all the charges. The petitioner Saroj Kumar Mishra and the other two co-accused persons namely Sudarsan Sahani and Prasanta Kumar Patra were also acquitted of the charges under sections 420, 468, 201 and 120-B of the Indian Penal Code but they were found guilty under section 13(2) read with section 13(1)(d) of the 1988 Act.
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3. The prosecution case, in short, is that pursuant to an allegation of misappropriation of government money of Rs.1,50,000/- by showing false execution of pot-hole repair work in NH 217 from 147 K.M. to 171 K.M. in the year 2004, an enquiry was taken up, in course of which it was ascertained that during the period 2002 to 2004, Sudarsan Sahani was the S.D.O. of NH Sub-division, Balliguda, petitioner Saroj Kumar Mishra was the Executive Engineer, NH Division, Berhampur and co-accused Prasanta Kumar Patra was the Junior Engineer of NH Section, Balliguda. During the said period, an estimate was made relating to periodical renewal of NH 217 and the same was sanctioned and agreement was executed on 19.02.2004 with contractor Sri Arun Kumar Choudhury relating to P.R. Coat of NH 217 from 148 KM to 154 KM for an amount of Rs.36,98,199/- with date of commencement and completion from 19.02.2004 to 18.06.2004 and further time extension was given upto 30.01.2005. The enquiry further revealed that while the said agreement was subsisting, another agreement was executed for the same portion of work with co-accused Abakash Padhy overlapping the earlier agreement with an estimate of Rs.4,64,881/- with the date of commencement and completion from 10.09.2004 to 09.03.2005. After execution of agreement with co-accused 4 Abakash Padhy, co-accused Prasanta Kumar Patra made necessary entries relating to pot-hole repair work in the measurement book and an amount of Rs.1,50,000/- was paid to co-accused Abakash Padhy on 14.10.2004. It further came to light that pot-hole repair works from 147 KM to 171 KM was not actually executed and false bills were prepared and payment of Rs.1,50,000/- was shown. The Superintending Engineer, NH Circle (South), Bhubaneswar conducted an inspection and came to the conclusion that the agreement drawn by the Executive Engineer, NH, Division, Berhampur was unauthorized as another agreement over the same patch was already in force and it was further found that inflated rates were given to the Contractor in order to give undue financial benefit for executing pot-hole repair works and that the measurement books were not produced before him for his scrutiny.
4. The learned trial Court in his impugned judgment has been pleased to hold that the prosecution has failed to bring home the offences under sections 420 and 468 of the Indian Penal Code in as much as since final bill had not been prepared, payment of Rs.1,50,000/- to co-accused Abakash Padhi in an inflated rate cannot be accepted.
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The learned trial Court further held that on careful scrutiny of the material, there appears nothing to the fact that the petitioner conspired along with the other co-accused persons to grab the government funds allotted for construction of pot- holes and therefore, the prosecution has failed to bring home the charge under section 120-B of the Indian Penal Code against the accused persons.
The learned trial Court further held that the disappearance of MB No.1311 against the petitioner and co- accused persons Sudarsan Sahani and Prasant Kumar Patra was not founded and accordingly, the prosecution has failed to substantiate the charge under section 201 of the Indian Penal Code against the accused persons.
However, the learned trial Court held that the prosecution has successfully established the offence under section 13(2) read with section 13(1)(d) of the 1988 Act against the petitioner, co-accused Sudarsan Sahani and Prasanta Kumar Patra and accordingly found them guilty.
5. Mr. Asok Mohanty, learned Senior Advocate appearing for the petitioner strenuously contended that after acquitting the petitioner of the charges under sections 420, 468, 6 201 and section 120-B of the Indian Penal Code, the learned trial Court has illegally convicted the petitioner under section 13(2) read with section 13(1)(d) of the 1988 Act holding in paragraph- 17 of the impugned judgment that on 10.09.2004 the petitioner had entered into an agreement with co-accused Abakash Padhy vide Agreement No.1F2/04-05 for the self-same work with commencement and completion date as 10.09.2004 to 09.03.2005 and as such, the subsequent contract i.e. 1F2/04-05 entered into in between the petitioner and Abakash Padhy was illegal. It is contended that the first agreement was in respect of a work having a different patch of the road and for a larger amount whereas the second agreement was for the repair work of pot hole after the rainy season and flood for an amount below rupees five lakhs. It is further contended that as the first contractor did not execute the work which was necessary due to damage of the road on account of rainy season followed by heavy flood and abandoned the work, show cause notice was issued to him and keeping in view the urgency and requirement of repair for convenience of public, second agreement was executed by way of tender. It is further contended that time stipulated in the first contract had already elapsed and therefore, there was nothing wrong in executing the second agreement and 7 as such there was no culpability on the part of the petitioner under Penal provisions of 1988 Act. It is further contended that when co-accused Abakash Padhy has been acquitted of all the charges, the learned trial Court should not have jumped to the conclusion that the prosecution has successfully established the offence under section 13(2) read with 13(1)(d) of the 1988 Act against the petitioner. It is further contended that in absence of any reasoning/findings as to why the petitioner is found guilty under section 13(2) read with section 13(1)(d) of the 1988 Act after being acquitted of the offences under Indian Penal Code, the impugned judgment and order of conviction against the petitioner is perverse and suffers from non-application of mind and therefore, cannot be sustained in the eye of law. It is further contended that since on the face of the impugned judgment, the petitioner has a very good case for acquittal and the appeal being of the year 2016 is not likely to be taken up for hearing in the near future, unless the conviction is stayed/suspended, the petitioner would suffer irreparable loss and injury and his service will be at stake. It is further contended that co-accused Sudarsan Sahani who was the S.D.O of NH Sub-Division has filed a separate Criminal Appeal bearing CRLA No.695 of 2016 and he filed a Misc. Case bearing Misc. Case No.152 of 2017 for 8 suspension of his conviction which was allowed by this Court vide order dated 15.09.2017.
6. Mr. Srimanta Das, learned Senior Standing Counsel for the Vigilance Department appearing for the opposite party vehemently opposed the prayer for stay of conviction and also filed his objection to such petition. It is contended that the learned trial Court after going though the evidence on record has rightly found the petitioner guilty and since stay of conviction should be exercised only in exceptional circumstances and in rare cases where failure to stay conviction would lead to injustice and irreversible consequences, nothing having been pointed out by the learned counsel for the petitioner in that respect, no favourable order should be passed in his favour. It is further contended that delay in disposal of the appeal and the submission that there are good arguable points by itself are not sufficient to grant suspension of conviction. The learned counsel further contended that laxity in corruption cases would encourage corruption and therefore, the misc. case should be dismissed. Learned Senior Standing Counsel for the Vigilance Department placed the paragraph 16 and 17 of the impugned Judgement. He placed reliance in the case of K.C. Sareen -Vrs.- C.B.I., Chandigarh reported in A.I.R. 2001 Supreme Court 9 3320, State of Maharashtra -Vrs.- Gajanan reported in A.I.R. 2004 Supreme Court 1188, State of Punjab -Vrs.- Deepak Mattu reported in A.I.R. 2008 Supreme Court 35, State of Panjab -Vrs.- Navraj Singh reported in AIR 2008 Supreme Court 2962, C.B.I. -Vrs.- M.N. Sharma reported in A.I.R. 2009 Supreme Court 1185, State of Maharastra through CBI -Vrs.- Balakrishna reported in 2012 (12) SCC 384, Shyam Narain Pandey -Vrs.- State of U.P. reported in 2015 Criminal Law Journal 250, Purna Chandra Kisan - Vrs.- State of Orissa reported in 2017(II) ILR -CUT- 406 and Harihar Mishra -Vrs.- Republic of India reported in (2010) 47 Orissa Criminal Reports 236.
7. In the case of K.C. Sareen -Vrs.- C.B.I., Chandigarh reported in A.I.R. 2001 Supreme Court 3320, it is held as follows:-
"10. 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 a duty to look at all aspects including the ramifications of keeping such conviction in abeyance. It is in the 10 light of the above legal position that, we have to examine the question as to what should be the position when a 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 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 a sequel thereto, is different matter.
11. 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 functions 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 was 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 Court or revisional forum has decided to entertain his challenge and to go into the issues and findings made against such public 11 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 do 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 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. If honest public servants are 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 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 officer could continue to hold such public office even without the help of a Court order suspending the conviction.
12. 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 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 of suspended. It would be a 12 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."
In the case of State of Maharashtra -Vrs.-
Gajanan reported in A.I.R. 2004 Supreme Court 1188, it is held as follows:-
"5. In the said judgment of K.C. Sareen (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 slaying the conviction. It should also be noted that the view expressed by this Court in K.C. Sareen's case (supra) was subsequently approved followed by the judgment of this Court in Union of India v. Atar Singh and Anr. (2003) 12 SCC 434."
In the case of State of Punjab -Vrs.- Deepak Mattu reported in A.I.R. 2008 Supreme Court 35, it is held as follows:-
"6. An order of suspension of conviction admittedly is not to be readily granted. The High Court in its order dated 11.1.2005 passed a 13 judgment irrespective of conviction and sentence, only on two grounds;
(i) A long time may be taken to decide the appeal.
(ii) There are good points to argue.
7. While passing the said Order, the High Court did not assign any special reasons. Possible delay in disposal of the appeal and there are arguable points by itself may not be sufficient to grant suspension of a sentence. The High Court while passing the said Order merely noticed some points which could be raised in the appeal.
The grounds so taken do not suggest that the Respondent was proceeded against by the State, mala fide or any bad faith...."
In the case State of Punjab -Vrs.- Navraj Singh reported in AIR 2008 Supreme Court 2962, it is held as follows:-
"12. It is to be noted that learned Single Judge while directing suspension of conviction indicated no reasons.
13. Above being the position, the order of the learned Single Judge, directing the suspension/stay of the conviction as well as the order refusing to recall the said order cannot stand and are set aside."
In the case of C.B.I. -Vrs.- M.N. Sharma reported in A.I.R. 2009 Supreme Court 1185, it is held as follows:-
"10. It is to be noted that learned Single Judge while directing suspension of conviction indicated no reasons.14
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."
In the case of State of Maharastra through CBI - Vrs.- Balakrishna reported in 2012 (12) SCC 384, it is held as follows:-
"12. Thus, in view of the aforesaid discussion, a clear picture emerges to the effect that, the Appellate Court in an exceptional case, may put the conviction in abeyance along with the sentence, but such power must be exercised with great circumspection and caution, for the purpose of which, the applicant must satisfy the Court as regards the evil that is likely to befall him, if the said conviction is not suspended. The Court has to consider all the facts as are pleaded by the applicant, in a judicious manner and examined whether the facts and circumstances involved in the case are such, that they warrant such a course of action by it. The Court additionally, must record in writing, its reasons for granting such relief. Relief of staying the order of conviction cannot be granted only on the ground that an employee may lose his job, if the same is not done."
In the case of Shyam Narain Pandey -Vrs.- State of U.P. reported in 2015 Criminal Law Journal 250, the Hon'ble Supreme Court has held as follows:-
"7. 'Convict' means declared to be guilty of criminal offence by the verdict of Court of law. That declaration is made after the Court finds 15 him guilty of the charges which have been proved against him. Thus, in effect, if one prays for stay of conviction, he is asking for stay of operation of the effects of the declaration of being guilty.
8. It has been consistently held by this Court that unless there are exceptional circumstances, the appellate Court shall not stay the conviction, though the sentence may be suspended. There is no hard and fast rule or guidelines as to what are those exceptional circumstances. However, there are certain indications in the Code of Criminal Procedure, 1973 itself as to which are those situations and a few indications are available in the judgments of this Court as to what are those circumstances.
9. It may be noticed that even for the suspension of the sentence, the Court has to record the reasons in writing under Section 389(1) Code of Criminal Procedure. Couple of provisos were added under Section 389(1) Code of Criminal Procedure pursuant to the recommendations made by the Law Commission of India and observations of this Court in various judgments, as per Act 25 of 2005. It was regarding the release on bail of a convict where the sentence is of death or life imprisonment or of a period not less than ten years. If the appellate Court is inclined to consider release of a convict of such offences, the Public Prosecutor has to be given an opportunity for showing cause in writing against such release. This is also an indication as to the seriousness of such offences and circumspection which the Court should have while passing the order on stay of conviction. Similar is the case with offences involving moral turpitude. If the convict is 16 involved in crimes which are so outrageous and yet beyond suspension of sentence, if the conviction also is stayed, it would have serious impact on the public perception on the integrity institution. Such orders definitely will shake the public confidence in judiciary. That is why, it has been cautioned time and again that the Court should be very wary in staying the conviction especially in the types of cases referred to above and it shall be done only in very rare and exceptional cases of irreparable injury coupled with irreversible consequences resulting in injustice."
In the case of Purna Chandra Kisan -Vrs.- State of Orissa reported in 2017(II) ILR -CUT- 406, it is held as follows:-
"10. No doubt, for the aforesaid stigma of conviction is likely to lead removal from the service if the employer so desired and in that event, he as well as his family members shall suffer. The injury that the petitioner-appellant is likely to suffer i.e. removal from service cannot be said to be irreparable injury coupled with irreversible consequences resulting in injustice. In the case of Shyam Narain Pandey (supra), it has been held that loss of job is no ground to stay/suspend the conviction."
In the case of Harihar Mishra -Vrs.- Republic of India reported in (2010) 47 Orissa Criminal Reports 236, it is held as follows:-
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"10. From the discussion as aforesaid, five broad principles emerge, which, in my considered view, is a guide so far as exercise of discretion under Section 389(1), Code of Criminal Procedure in relation to stay/ suspension of conviction is concerned. They may be called the 'Panchasheel' for exercise of discretion under Section 389(1), Code of Criminal Procedure for suspension of an order of conviction. They are -
(i) The Appellant, who seeks interference of the Appellate Court under Section 389(1), Code of Criminal Procedure so far as the order of conviction is concerned, must come with clean hands, and with due frankness and fairness specifically draw attention of the Appellate Court to the specific consequences he is going to suffer, if discretion by the Court is not exercised in his favour.
(ii) Such discretion by the Appellate Court may be exercised in favour of the appellant only in rare and exceptional cases depending upon the special facts of the case and not as a matter of course.
(iii) Such discretion may be exercised only where failure to stay the conviction would lead to injustice and irreversible consequences. The Court has to examine carefully on the basis of materials supplied and materials available on record as to whether the consequences sought to visit the appellant at present or on a future date is/are real.
(iv) While exercising the discretion, the Appellate Court has a duty to look at all the aspects including ramification of keeping the conviction in abeyance, and it is under further 18 obligation to support its order for reasons to be recorded by it in writing.
(v) In case of public servants convicted of corruption charges, the discretion should not be exercised."
8. On the face of the impugned judgment of the learned trial Court, it is apparent that after acquitting the petitioner of the charges under sections 420, 468, 201 and 120-B of the Indian Penal Code, the learned trial Court has not assigned any specific reason for convicting the petitioner under section 13(2) read with section 13(1)(d) of the 1988 Act. The finding, if any, so far as that offence is concerned relating to execution of agreement on 10.09.2004 is against the petitioner and co- accused Abakash Padhy who has been acquitted of all the charges. The learned trial Court has not taken into consideration that the first agreement was in respect of a work having a different patch of the road whereas the second agreement was for the repair work of pot hole after the rainy season and flood. It has not taken into consideration that as the first contractor did not execute the work which was necessary due to damage of the road on account of rainy season followed by heavy flood and abandoned the work, show cause notice was issued to him and keeping in view the urgency and requirement of repair for 19 convenience of public, second agreement was executed by way of tender and that time stipulated in the first contract had already elapsed and therefore, there was nothing wrong in executing the second agreement. When the charge of criminal conspiracy has failed and it is observed that there appears nothing to the fact that the petitioner had conspired with other co-accused persons to grab the Govt. fund allotted for construction of pot-holes and the petitioner and all other co- accused persons have been acquitted of such charge, it was the duty on the part of the learned trial Court to discuss the ingredients of the offence under section 13(1)(d) which is punishable under section 13(2) of the 1988 Act and after discussing the evidence on record, to give a finding thereon as to how the ingredients of such offence so far as the petitioner is concerned, is attracted.
Section 354 of Cr.P.C. which deals with language and contents of judgment, inter alia, states that the judgment shall contain the point or points for determination, the decision thereon and the reasons for the decision.
In the present case even though the learned trial Court has formulated the point that "if the accused persons, during the year 2002 to 2004, being the public servants had 20 abused their position as such public servant and thereby obtained pecuniary advantage of Rs.1,50,000/- entrusted to them and committed criminal misconduct" which has got relevance to the charge under section 13(1)(d) read with section 13(2) of 1988 Act but while discussing such charge, the learned trial Court has given its finding in paragraph-7 that the petitioner and the co-accused persons Sudarsan Patra and Prasanta Kumar Patra were 'public servants' within the meaning of public servant as defined in section 2 of the 1988 Act. The learned trial Court further held in paragraph 12 that co-accused Abakash Padhy had executed the work. Thereafter, the learned trial Court discussed the core issue that when one agreement was subsisting then whether a second agreement for the same work has got legal sanctity or not. After discussing the evidence, the learned trial Court has arrived at a finding that on 22.09.2004, notice of show cause vide Ext.Q was issued to Arun Kumar Choudhury which means till 22.09.2004, the earlier contract with Arun Kumar Choudhury was not rescinded and was very much in force in view of clause 2(b)(1) of the conditions of contract but on 10.09.2004 the petitioner as Executive Engineer had entered into an agreement with co-accused Abakas Padhy vide Agreement no. 1F2/04-05 for the self same work with commencement and 21 completion date as 10.09.2004 and 09.03.2005 and as such, the subsequent contract i.e. 1F2/04-05 entered into in between petitioner and Abakas Padhy was illegal.
After giving such finding, the learned trial Court has discussed the charges under sections 420, 468, 120-B and 201 of the Indian Penal Code and disbelieved the prosecution case relating to such charges. Thereafter, the learned trial Court has suddenly jumped to the conclusion in paragraph 29 that the prosecution has successfully established the offence under section 13(2) read with section 13(1)(d) of 1989 Act against the petitioner and co-accused persons Sudarsan Sahani, Prasanta Kumar Patra. Therefore, it is apparent that there is no specific finding relating to the charges under section 13(2) read with section 13(1)(d) of 1988 Act. The learned trial Court has overlooked the material evidence and therefore, the conclusion arrived at for such charge against the petitioner is totally misconceived.
A duty is cast on the trial Court to arrive at the truth and to render justice. If the trial Court shrinks from its duty and responsibility then it would make a mockery of the criminal justice delivery system. If a reasoned judgment is not passed by the trial Court and a party is left in darkness in searching for the 22 reasons as to why he has been convicted or why an accused has been acquitted then not only the parties to the case but also the society at large who are expecting a sound and reasoned judgment would raise accusing finger against the Judge either for his incapability or otherwise which would tilt the basic structure of the foundation of administration of justice.
In case of Prasad @ Hariprasad Acharaya -Vrs.- State of Karnataka reported in A.I.R. 2009 Supreme Court 1911 where the High Court of Karnataka had upheld the conviction of the appellant passed by the learned trial Court without assigning any reasons, it is held as follows:-
"8. Reasons introduce clarity in an order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief, in its order indicative of an application of its mind. The absence of reasons has rendered the High Court's judgment not sustainable.
9. Even in respect of administrative orders Lord Denning, M.R. in Breen v. Amalgamated Engg. Union (1971) 1 All ER 1148, observed: "The giving of reasons is one of the fundamentals of good administration." In Alexander Machinery (Dudley) Ltd. v. Crabtree 1974 ICR 120 (NIRC) it was observed: "Failure to give reasons amounts to denial of justice." "Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at." Reasons substitute subjectivity by objectivity. The emphasis on 23 recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made; in other words, a speaking-out. The "inscrutable face of the sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance."
In case of Mukhtiar Singh and another -Vrs.-
State of Punjab reported in A.I.R. 1995 S.C. 686, it is held that a decision does not mean the 'conclusion', it embraces within its fold the reasons which form the basis for arriving at the 'conclusions'. In case of Prem Kaur -Vrs.- State of Punjab reported in A.I.R. 2013 S.C. 2083, it is held that the Court must give reasons for reaching its conclusion.
The recording of reasons in a judgment is an essential requirement because such reasons can alone show whether the Court has applied its mind to all the facts and circumstances relevant to the point in dispute. Reasons form the 24 substratum of the decision. If reasons are not given for arriving at a conclusion, the judgment is robbed of one of the most essential ingredients and forfeits its claim to be termed a judgment in the eye of law. Recording of reasons necessarily implies the appreciation and consideration of evidence. A judgment written in a proper manner containing reasons for finding by the trial Court is of considerable help to the Appellate Court. A judgment which does not fulfil the basic and essential requirement of section 354 of Cr.P.C. is not only a defective judgment but in fact it is no judgment in the eye of law. A judgment not in conformity with the provisions of section 354 of Cr.P.C. is a nullity. The absence of reasons goes to the root of the matter and it is not a mere irregularity but a patent illegality which cannot be cured under section 465 of Cr.P.C.
Though in case of Harihar Mishra (supra) while formulating panchasheel for exercise of discretion under section 389(1) Cr.P.C. for suspension of an order of conviction, a learned single Judge of this Court has held in case of public servant convicted of corruption charges, the discretion should not be exercised but the Hon'ble Supreme Court in case of K.C. Sareen (supra), has held that the power to suspend an order of conviction, apart from the order of sentence, is not alien to 25 section 389(1) of the Code, its exercise should be limited to very exceptional cases: Similarly the Hon'ble Supreme Court in case of Balakrishana Dattatraya Kumbhar (supra), while dealing with a case under 1988 Act, has held that the Appellate Court in an exceptional case, may put the conviction in abeyance along with the sentence but such power must be exercised with great circumspection and caution, for the purpose of which, the appellant must satisfy the Court as regard the evil that is likely to befall him, if the said conviction is not suspended. The Hon'ble Supreme Court in case of Shyam Narain Pandey (supra) has held that it has been cautioned time and again that the Court should be very wary in staying the conviction especially in the types of cases referred to above and it shall be done only in very rare and exceptional cases of irreparable injury coupled with irreversible consequences resulting in injustice.
9. Therefore, in the facts and circumstances of the case, when the impugned judgment of the learned trial Court exhibits a stony silence regarding the reasons for arriving at the conclusions against the petitioner and the conclusions against the petitioner suffers from total non-application of mind and material evidence on record has been overlooked, in view of the fallacy in the impugned judgment as discussed above, I am of 26 humble view that if the impugned judgment of conviction so far the petitioner is concerned is not stayed/suspended, by the time the appeal is taken up for hearing and decided finally, much water will be flown under the bridge and the evil that would likely to befall on the petitioner in the meantime would aggravate and it would be too late to set the clock back. I am of the further view that the petitioner has made out an exceptional case for stay/suspension of conviction. It is one of such exceptional cases where the order of conviction should be stayed/suspended otherwise it would cause irreparable loss and injury coupled with irreversible consequences resulting in serious miscarriage of justice to the petitioner.
10. Accordingly, the order of conviction passed against the appellant-petitioner by the learned Special Judge (Vigilance), Phulbani in G.R. Case No. 08 of 2013 (v) (T.R. No. 08 of 2013) is stayed/suspended pending disposal of the appeal.
The Misc. Case is accordingly allowed.
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S. K. Sahoo, J.
Orissa High Court, Cuttack The 15th January, 2018/Pravakar