Madhya Pradesh High Court
Jagdish Arora vs The State Of Madhya Pradesh on 3 March, 2020
Equivalent citations: AIRONLINE 2020 MP 1286
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
Cr.R. No.208/2020
(1)
HIGH COURT OF MADHYA PRADESH,
BENCH AT GWALIOR
JUSTICE S.A.DHARMADHIKARI
Cr. R. No.208/2020
Jagdish Arora
Vs.
State of M.P.
Whether approved for reporting:
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Shri Amit Agrawal, Senior Advocate, Shri
V.K.Bhardwaj, Senior Advocate with Shri Pawan Dwivedi
Advocate for the petitioner.
Shri Sanjeev Mishra, Public Prosecutor for the
respondent-State.
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ORDER
03/03/2020 Heard on the question of admission.
2. Revision seems to be arguable, hence admitted for final hearing.
3. Shri Sanjeev Mishra, learned Public Prosecutor takes notice of this revision on behalf of the State.
4. Also heard on I.A. No. 1592/2020, an application under Section 397 (1) r/w section 401 r/w section 389 (1) of Code of Criminal Procedure, 1973 for staying the effect, operation and conviction recorded in criminal case No. 1079/2006 vide Cr.R. No.208/2020 (2) Judgment dated 27/09/2019 as affirmed in Criminal Appeal No. 154/2019 vide judgment dated 23/12/2019. By the said judgment, the petitioner stands convicted and sentenced as under:-
S.N. Convicted under Sentenced to:
section
1. Section 34 (A) / 42 of Imprisonment till the court M.P. Excise Act, 1915 rises with fine of Rs.
2,000/- with default stipulation.
2. Section 36/42 of M.P. Imprisonment till the court Excise Act, 1915 rises with fine of Rs. 500/-
with default stipulation.
3. Section 37/ 42 of M.P. Imprisonment till the court Excise Act, 1915 rises with fine of Rs. 500/-
with default stipulation.
4. Section 39 (B) (C )/ 42 Fine of Rs. 2,000/- with of M.P. Excise Act, default stipulation. 1915
5. It is alleged that a truck bearing registration number DNC/1332 was illegally transporting 616 cartoons of whiskey (Sunny Malt whiskey) as Form FL 21 was suspended and the new Form FL 22 was brought into force and the said permit was valid from 12/08/1996 till 14/08/1996 and as such Rule 12(1), 12(6), 12(7) & 19 (a) of Foreign Liquor Rules, 1996 (hereinafter referred to as Rules of 1996) have been violated.
6. Learned Senior Counsel Shri Amit Agrawal contended Cr.R. No.208/2020 (3) that prima facie findings of the learned Courts below are perverse inasmuch as the transport of the foreign liquor in the truck was covered by the export permit issued under Rule 12 (5) of Rules of 1996. Thus the courts below have committed palpable error in recording the conviction under Section 34 (a) of M.P. Excise Act, 1915 (hereinafter referred to as an 'Act'), only on the ground that export permits were issued on Form FL
-21 which was repealed w.e.f. 01/04/1996 by Form FL - 22, although the trial court has recorded that export permits were not forged, but for alleged violation of Rule 12 (6) & (7) of Rules of 1996 concluded that in view of breach, the petitioner is being convicted. It is further submitted that import permit is required only for issuance of export permit and the export permit was valid on the date of seizure. The appellate court has affirmed the order passed by the trial court without appreciating the evidence on record. The trial court has convicted the petitioner on the basis of the findings that every offence committed by the "company", the "Managing Director"
is responsible. According to Section 44 of the Act and the general principle of law that unless complexity and mens-rea qua an offence of the Managing Director is established, no vicarious liability can be fastened in absence of a statutory Cr.R. No.208/2020 (4) provisions fastening such liability.
7. Learned senior counsel has further contended that based on the aforesaid conviction, the Excise Commissioner has issued notices vide dated 16/10/2019 (Annexure A/1), dated 04/12/2019 (Annexure A/2) & dated 04/01/2020 (Annexure A/3). Although aforesaid notices have been replied by the petitioner, but the aforesaid conviction may eventually entail in suspension of and/or cancellations of license of M/s. Som Distilleries Private Limited, wherein the petitioner was Director till 27/09/2019. He further submits that if the license is cancelled the ensuing damage done by cancellation cannot be undone in case conviction is eventually set aside. In view of the above, if the conviction is not stayed, the petitioner being the erstwhile Chairman and Managing Director of M/s. Som Distilleries Private Limited, in the event, the license is cancelled, the company may suffer irreparable injury and loss, which cannot be compensated, if the impugned conviction is not stayed.
8. On the other hand, learned Public Prosecutor for the State vehemently opposed the application and submitted that scope and power of the High Court under Section 397 r/w section 401 of Cr.P.C. is very limited and this Court cannot exercise the Cr.R. No.208/2020 (5) appellate power as the powers have been conferred on the revisional court for limited purpose. The provision contained in section 395 to section 401 of Cr.P.C. read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate court. In support of his contentions, learned Public Prosecutor for the State has placed reliance on the judgment of the Apex Court delivered in the case of Ravikant S. Patil vs. Sarvabhouma S. Bagali reported in (2007) 1 SCC 673, which reads thus :-
"It deserves to be clarified that an order granting stay of conviction is not the rule but is an exception to be resorted to in rare cases depending upon the facts of a Cr.A. No.7113/2018 (5) case. Where the execution of the sentence is stayed, the conviction continues to operate. But where conviction itself is stayed, the effect is that the conviction will not be operative from the date of stay. An order of stay, of course, does not render the conviction non-existent, but only nonoperative.......All these decisions, while recognizing the power to stay conviction, have cautioned and clarified that such power should be exercised only in exceptional circumstances where failure to stay the conviction, would lead to injustice and irreversible consequences."
(emphasis added)
9. In Navjot Singh Sidhu v. State of Punjab & Anr., AIR 2007 SC 1003, this Court held that the Appellate Court can suspend "an order appealed against", i.e. an order of conviction, only if the convict specifically establishes the consequences that may follow if the operation of the said order Cr.R. No.208/2020 (6) is not stayed. Stay of conviction must be granted only in a rare case and that too, only under special circumstances. (See also:
State of Punjab v. Navraj Singh AIR 2008 SC 2962; and CBI, New Delhi v. Roshan Lal Saini, AIR 2009 SC 755).
10. Heard learned counsel for the parties and perused the record of the court below.
11. It is a trite law that this Court can exercise the power of revision by invoking the power of appellate court as has been held by the Apex Court in the case of State of Maharashtra vs. Jagmohan Singh Kuldip Singh Anand reported in (2004) 7 SCC 659, which reads thus :-
"The Revisional Court is empowered to exercise all the powers conferred on the Appellate Court by virtue of the provisions contained in Section 410 CrPC. Section 401 CrPC is a provision enabling the High Court to exercise all powers of Appellate Court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or the Sessions Court. Section 397 CrPC confers power on the High Court or Sessions Court, as the case may be, "for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceeding of such inferior court." It is for the above purpose, if necessary, the High Court or Sessions Court can exercise all appellate powers. Section 401 CrPC Cr.R. No.208/2020 (7) conferring powers of Appellate Court on the Revisional Court is with the above limited purpose. The provisions contained in Section 395 to Section 401 CrPC, read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power."
12. This Court has power to stay the conviction, if it results in some disqualifications relatable to the business affairs of the company as held by the Apex Court in the case of Rama Narang vs. Ramesh Narang reported in (1995) 2 SCC 513, which reads thus :-
"19. That takes us to the question whether the scope of Section 389(1) of the Code extends to conferring power on the Appellate Court to stay the operation of the order of conviction. As stated earlier, if the order of conviction is to result in some-disqualification of the type mentioned in Section 267 of the Companies Act we see no reason why we should give a narrow meaning to Section 389(1) of the Code to debar the court from granting an order to that effect in a fit case. The appeal under Section 374 is essentially against the order of conviction because the order of sentence is merely consequential thereto; albeit even the order of sentence can be independently challenged if it is harsh and disproportionate to the established guilt. Therefore, when an appeal is preferred under Section 374 of the ode the appeal is against both the conviction and sentence and therefore, we see no reason to place a narrow interpretation on Section 389(1) of the Code not to extend it to an order of conviction. Although that issue in the instant case recedes in the background because Cr.R. No.208/2020 (8) High Courts can exercise inherent jurisdiction under Section 482 of the Code if the power was not to be found in Section 389(1) of the Code. We are, therefore, of the opinion that the Division Bench of the High Court of Bombay was not right in holding that the Delhi High Court could not have exercised jurisdiction under Section 482 of the Code if it was confronted with a situation of there being no other provision in the (lode for staying the operation of the order of conviction. 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 persons 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 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 so doing 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."
13. So far as the tests for staying the conviction is concerned, the Apex Court in the case of Ravikant S. Patil vs. Sarvabhouma S. Bagali reported in (2007) 1 SCC 673 has held as under :-
"In State of Tamil Nadu v. A.Jaganathan, [1996] 5 SCC 329, the State challenged the order of the Cr.R. No.208/2020 (9) High Court which had granted suspension of the conviction as also the sentence, relying on Rama Narang (supra). This Court held that the principle laid down in Ram Narang (supra) was that conviction and sentence can both be suspended only if non-grant of suspension of conviction would result in damage which could not be undone if ultimately the appeal/revision was allowed. On facts, it was found that even if stay of conviction was not granted, no prejudice would be caused to the convicted person, having regard to the fact that when the revisions against the conviction and sentences were ultimately allowed, the damage, if any, caused to the respondents therein with regard to payment of stipends etc. could well be revived and made good to the them. This Court noted that if such trifling matters involving slight disadvantage to the convicted person were to be taken into consideration, every conviction would have to be suspended pending appeal or revision. It was further noted that the High Court did not consider at all the moral conduct of the respondents inasmuch as the respondent Jaganathan who was a Police Inspector had been convicted under Sections 392, 218 and 466 IPC, while the other respondents who were also public servants had been convicted under the provision of Prevention of Corruption Act. Under those circumstances, the discretion exercised by the High Court in suspending the conviction was reversed.
All these decisions, while recognising the power to stay conviction, have cautioned and clarified that such power should be exercised only in exceptional circumstances where failure to stay the conviction, would lead to injustice and irreversible consequences."Cr.R. No.208/2020 (10)
14. Admittedly, the trial court has convicted and sentenced the petitioner treating him to be the Managing Director of M/s. Som Distilleries Private Limited. It is apparent from the record that export permit was issued by the Excise Department on Form FL -21 after fulfilling all formalities of new Form FL -22. There is no finding to the effect that export permit was forged one. Earlier for the same type of permit seven trucks had already reached their destination and no such objection was ever raised.
15. The courts below failed to consider the fact that authorities had issued the export permit on Form FL -21 as the Form FL -22 were not printed and, therefore, for the last five months the permit was being issued on form FL -21. Prima facie, no loss whatsoever has been caused to the exchequer. The respondents authorities have issued show cause notice to the company which has been duly replied. Since there is every possibility of cancellation of license based on the conviction of the petitioner, this Court is of the considered opinion that if conviction is not stayed in the peculiar facts and circumstances of the case, the company may suffer irreparable injuries and would not be compensated in the event, this revision is allowed. Moreover, the petitioner has already undergone the Cr.R. No.208/2020 (11) sentence of "imprisonment till the court rises" and deposited the fine amount within stipulated period as directed by the court below.
16. In view of above, I.A. No. 1592/2020 stands allowed. The effect, operation and conviction recorded in criminal case No. 1079/2006 vide Judgment dated 27/09/2019 as affirmed in Criminal Appeal No. 154/2019 vide judgment dated 23/12/2019 shall remain stayed during pendency of this revision.
17. Office is directed to list this matter for final hearing as per listing policy.
(S.A.Dharmadhikari) Judge (03/03/2020) Durgekar* SANJAY N DURGEKAR 2020.03.03 14:39:57 +05'30'