Bombay High Court
Sunil Hirasing Rathod vs The State Of Maharashtra on 22 October, 2018
Author: A.M.Badar
Bench: A.M.Badar
(33)APPANo.16112018(J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.1611 OF 2018
IN
CRIMINAL APPEAL NO.1137 OF 2018
Mr.Sunil Hirasing Rathod,
Age- 48 yrs., Occu. Service,
Executive Engineer, BMC,
Residing at - S/4, Plot - 124,
Sector - 2, Charkop,
Kandivali - West, Mumbai. ... Applicant
V/s.
The State of Maharashtra
Through ACB, Mumbai,
vide C.R. No.74/2004. ... Respondent
.....
Mr.Amit Desai Senior Counsel with Mr.Subodh Desai, Mr.Ashwin
C. Thool i/b. Mr.Nikhil Gawai, Advocate for the Applicant.
Mr.P.H.Gaikwad-Patil, APP for the Respondent/State.
....
CORAM : A.M.BADAR J.
DATED : 22nd OCTOBER 2018.
P.C. :
1 This is an application for suspension of conviction of
the offence punishable under Section 12 of the Prevention of
Corruption Act, 1988 (hereinafter referred to as 'PC Act' for the
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sake of brevity) recorded against the applicant/accused No.3 by
the learned Special Judge (Under the PC Act), Greater Mumbai
vide Judgment and Order dated 18/08/2018 passed in Special
Case No.60 of 2015. The applicant/accused No.3 is sentenced to
suffer rigorous imprisonment for three years for the offence
punishable under Section 12 of the PC Act apart from directing
him to pay fine of Rs.10,000/- and in default to undergo simple
imprisonment for three months. (It appears that inadvertently in
the operative portion of the Order, the conviction is stated to be
for the offence punishable under Section 7 of the PC Act).
2 Heard the learned Senior Counsel appearing for the
the applicant/accused No.3. He drew my attention to the fact that
even according to the prosecution case, the alleged demand of
illegal gratification was emanated from the accused Nos.1 and 2
viz. Vilas Khilari and Balaji Birajdar on 10/10/2014. Therefore, in
submission of the learned Senior Counsel, there cannot be any
abetment by the applicant/accused No.3 on 20/10/2014. It is
further argued that charge-sheet in the instant case was filed on
18/09/2015. However, prior to that, the applicant/accused No.3
came to be exonerated of the charges levelled against him in the
departmental enquiry on 23/03/2015. It is argued that standard
of proof in the departmental enquiry is much lessor than the
standard of proof in the criminal trial. Therefore, the learned trial
Court erred in convicting the applicant/accused No.3. The learned
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Senior Counsel further argued that the act alleged against the
applicant/accused No.3 is post the crime and therefore, there
cannot be any abetment to commit the offence punishable under
Section 7 or 13 of the PC Act by the applicant/accused No.3.
Reliance is placed on Judgment of this Court in the matter of
Pravinkumar Deore v. The State of Maharashtra1, Kishan Patil
v. State of Maharashtra2, Ashok Malhari Sonawane v. The State
of Maharashtra3 and Prasanta Kumar Patra v. State of Odisha
(Vig.)4. With the aid of these Judgments, it is argued that the
impugned Judgment and Order of conviction and resultant
sentence is bereft of any discussion on facts and evidence in order
to infer complicity of the applicant/accused No.3 in the crime in
question. In the entire Judgment, there is no discussion and
finding after considering all evidence on record to conclude that
the applicant/accused No.3 had abetted commission of the crime
in question.
3 The learned Senior Counsel placed reliance on
Judgment of the Honourable Apex Court in the matter of Shri
Ram v. The State of U.P. 5 as well as in the matter of Raj Kumar
v. State of Punjab & Haryana6 to substantiate his contention that
there must be some sort of action on the part of the accused with
1 2017 SCC OnLine Bom. 9585.
2 2017 (3) ABR (Cri.) 629.
3 MANU/MH/0452/2015.
4 2018 Cri.L.J. 2300.
5 AIR 1975 Supreme Court 175.
6 1983 Cr.L.J. 706 (P & H).
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an intention to facilitate the commission of the offence, in order to
establish the charge of abetment. With this, it is argued that
considering the irreversible consequences of conviction which the
applicant/accused No.3 would suffer if the conviction is not
stayed, the application needs to be allowed.
4 The learned Additional Public Prosecutor placed on
record the written submission and argued that evidence of
P.W.No.1 Dilip Kudalkar and P.W.No.2 Jagdish Raje is consistent.
He placed reliance on Judgment of the Honourable Apex Court in
the matter of Shyam Narain Pandey v. State of Uttar Pradesh1
and argued that there cannot be stay to the conviction recorded by
the trial Court after due trial.
5 I have considered the submissions so advanced and
also perused material made available including the impugned
Judgment and Order of conviction and resultant sentence as well
as the copies of depositions of prosecution witnesses.
6 According to the prosecution case, P.W.No.1 Dilip
Kudalkar and P.W.No.2 Jagdish Raje are partners of Tirupati
Developers, who had undertaken work of redevelopment of Date
Bhavan situated at Dadar, Mumbai. Accused No.1 Vilas Khilari is
working as Assistant Engineer, accused No.2 Balaji Birajdar is
working as the Deputy Engineer, whereas applicant/accused No.3
1 (2014) 8 Supreme Court Cases 909.
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Sunil Rathod is working as the Executive Engineer with the
Mumbai Municipal Corporation. Accused No.4 Satish Palav is an
Architect, whereas accused No.5 Narayan Patil was working as
Helper. According to the prosecution case, Tirupati Builders had
submitted proposal for sanction of Building Plan and issuance of
Intimation of Disapproval (IOD) to the Municipal Corporation in
order to enable them to carry out the work of redevelopment. It is
averred by the prosecution that accused No.1 Vilas Khilari,
Assistant Engineer and accused No.2 Balaji Birajdar, Deputy
Engineer had demanded illegal gratification amounting to
Rs.15,00,000/- and Rs.10,00,000/- from Tirupati Builders for
issuance of Intimation of Disapproval to P.W.No.1 Dilip Kudalkar
and P.W.No.2 Jagdish Raje. According to the prosecution case,
despite payment of Rs.25,00,000/- towards illegal gratification to
him, the applicant/accused No.3 Sunil Rathod, Executive
Engineer, who happens to be the official superior to accused No.1
Vilas Khilari and accused No.2 Balaji Birajdar had abetted them in
demand of an amount of Rs.15,00,000/- and Rs.10,00,000/-
towards illegal gratification for issuance of the Intimation of
Disapproval, so also for acceptance of illegal gratification.
Therefore, it was decided to lodge complaint to the Anti-
Corruption Bureau. Accordingly, the same was lodged on
10/10/2014.
7 P.W.No.1 Dilip Kudalkar and P.W.No.2 Jagdish Raje
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were examined by the prosecution during the course of the trial
and they had deposed about demand made by accused No.1 Vilas
Khilari and accused No.2 Balaji Birajdar. This verification of
demand took place on 10/10/2014 as well as 16/10/2014. It was
done by taking aid of a shadow panch and recording of the
conversation. Ultimately, it was decided to trap accused No.1
Vilas Khilari and accused No.2 Balaji Birajdar on 20/10/2014.
P.W.No.1 Dilip Kudalkar and P.W.No.2 Jagdish Raje produced an
amount of Rs.15,00,000/- in currency notes in order to make part
payment of illegal gratification demanded by accused Nos.1 and 2.
Those currency notes were smeared with anthracene powder.
Digital Voice Recorder was handed over to the complainant and
panch witness Pawar was kept in company of the prosecution
witnesses. According to the prosecution case, the incidence of
abetment took place on 20/10/2014 and the applicant/accused
No.3 had abetted commission of the offence punishable under
Section 12 of the PC Act.
8 In the matter of Raj Kumar (supra), following are the
observations of the Honourable Punjab and Haryana High Court so
far as the term 'abetment' is concerned :
"12. Expression 'instigate' in the Concise Oxford
Dictionary is defined as 'urge on, incite, bring about by
persuasion and in Webster, it has been defined as 'urge
forward, provoke with synonyms of stimulate, urge, spur,
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provide tempt, incite, impel, encourage, animate. The
word 'instigate' in common parlance would mean to go, to
urge forward or to provoke, incite or encourage to do an
act."
9 Similarly, in the matter of Shri Ram (supra), the
Honourable Supreme Court has held thus in paragraph Nos.6 and
7 of the said Judgment :
"6. The question which then arises for consideration,
a question to which the Sessions Court and the High
Court have not paid enough attention, is whether the only
inference which arises from the fact that violet gave the
particular shout is that by so doing, she intended to
facilitate the murder of Kunwar Singh, Section 107 of the
Penal Code which defines abetment provides to the extent
material that a person abets the doing of a thing who
"Intentionally aides, by any act or illegal omission, the
doing of that thing." Explanation 2 to the section says
that
"Whoever, either prior to or at the time of the
commission of an act, does anything in order to
facilitate the commission of that act, and thereby
facilitates the commission thereof, is said to aid and
the doing of that act."
7. Thus, in order to constitute abetment, the abettor
must be shown to have "intentionally" aided the
commission of the crime. Mere proof that the crime
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charged could not have been committed without the
interposition of the alleged abettor is not enough
compliance with the requirements of section 107. A
person may, for example, invite another casually or for a
friendly purpose and that may facilitate the murder of the
invitee. But unless the invitation was extended with intent
to facilitate the commission of the murder, the person
inviting cannot be said to have abetted the murder. It is
not enough that an act on the part of the alleged abettor
happens to facilitate the commission of the crime.
Intentional aiding and therefore active complicity is the
gist of the offence of abetment under the, third paragraph
of section 107."
10 Section 107 of the Indian Penal Code defines the term
'abetment' and it reads thus :
"107. Abetment of a thing.--A person abets the doing of
a thing, who--
(First) -- Instigates any person to do that thing; or
(Secondly) --Engages with one or more other person or
persons in any conspiracy for the doing of that thing, if an
act or illegal omission takes place in pursuance of that
conspiracy, and in order to the doing of that thing; or
(Thirdly) -- Intentionally aids, by any act or illegal
omission, the doing of that thing.
Explanation 1.--A person who, by wilful misrepresentation,
or by wilful concealment of a material fact which he is
bound to disclose, voluntarily causes or procures, or
attempts to cause or procure, a thing to be done, is said to
instigate the doing of that thing.
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Illustration
A, a public officer, is authorized by a warrant from a
Court of Justice to apprehend Z. B, knowing that fact and
also that C is not Z, wilfully represents to A that C is Z, and
thereby intentionally causes A to apprehend C. Here
abets by instigation the apprehension of C.
Explanation 2.--Whoever, either prior to or at the time of
the commission of an act, does anything in order to
facilitate the commission of that act, and thereby facilitate
the commission thereof, is said to aid the doing of that act."
Bare perusal of definition of term 'abetment' goes to
show that aiding an offence can be done by doing anything in
order to facilitate the commission of an offence either prior to or
at the time of commission of an offence. By now, it is well settled
that abetment does not involve the actual commission of crime but
it is a crime apart. Abetment involves actual, active complicity on
the part of the abettor prior to or at the time of commission of
offence. Abetment is completed when the other is facilitated to
commit an act of offence. The prosecution is required to establish
that there was instigation, provocation, incitement or an
encouragement by an accused to the others to commit the act of
an offence.
11 In the case in hand, evidence of P.W.No.1 Dilip
Kudalkar and P.W.No.2 Jagdish Raje is elaborating what took
place on 20/10/2014 when they along with shadow panch Pawar
had been to the office of the Municipal Corporation to comply the
directions of accused No.1 Vilas Khilari and accused No.2 Balaji
Birajdar. Congruous evidence of both these witnesses shows that
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they initially went to cabin of the applicant/accused No.3 Sunil
Rathod. It was informed to him that despite payment of
Rs.25,00,000/- to him, there is demand of Rs.15,00,000/- by
accused No.1 Vilas Khilari and demand of Rs.10,00,000/- by
accused No.2 Balaji Birajdar. It was informed to the
applicant/accused No.3 by P.W.No.1 Dilip Kudalkar and P.W.No.2
Jagdish Raje that they are having less amount with them and they
have brought Rs.15,00,000/-. It is in evidence of both these
witness that applicant/accused No.3 Sunil Rathod called Accused
No.1 Vilas Khilari to his chamber and then accused No.2 Balaji
Birajdar had also came in chamber of applicant/accused No.3
Sunil Rathod, who happens to be their official superior being the
Executive Engineer of the Mumbai Municipal Corporation.
Thereafter, as stated by the witnesses, applicant/accused No.3
Sunil Rathod had directed accused Nos.1 and 2 to accept the
amount brought by the prosecution witnesses and to issue
Intimation of Disapproval on that day itself. P.W.No.2 Jagdish
Raje had stated that applicant/accused No.3 Sunil Rathod had
informed him and his partner i.e. P.W.No.1 Dilip Kudalkar that in
addition they will also have to pay some amount to one
Gajargavkar. P.W.No.1 Dilip Kudalkar and P.W.No.2 Jagdish Raje
further deposed that applicant/accused No.3 Sunil Rathod told
them to pay remaining amount to accused No.1 Vilas Khilari and
accused No.2 Balaji Birajdar within 8 or 12 days or else he himself
will have to pay that amount from his own pocket.
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12 Evidence of prosecution goes to show that
subsequently, on that day i.e. on 20/10/2014, the amount of
illegal gratification amounting to Rs.15,00,000/- was paid to
accused No.1 Vilas Khilari and accused No.2 Balaji Birajdar. This
was done by taking aid of accused No.4 Palav.
13 Though it is not the stage of appreciation of evidence
meticulously, it is writ large on the face of record that Accused
No.1 Vilas Khilari and accused No.2 Balaji Birajdar were
subordinate officer and applicant/accused No.3 Sunil Rathod was
their superior officer working as the Executive Engineer. He
himself on the date of offence had directed both of them to accept
the amount of illegal gratification brought by P.W.No.1 Dilip
Kudalkar and P.W.No.2 Jagdish Raje. Accordingly, the amount of
illegal gratification was paid to both of them. There is evidence of
recovery of tainted currency notes from accused No.1 Vilas Khilari
and accused No.2 Balaji Birajdar. In this view of the matter, it
cannot be said that whatever was done by applicant/accused No.3
Sunil Rathod was after commission of crime of demand of illegal
gratification and, therefore, he is not liable for the consequences
thereof. Prima facie, it is seen that applicant/accused No.3 Sunil
Rathod intentionally facilitated his subordinate officers in
commission of offence of demand and acceptance of illegal
gratification.
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14 In this view of the matter, rulings cited by the learned
Senior Counsel has no application to the case in hand. In the
matter of Pravinkumar Deore (supra), sanction to prosecute him
for the offence punishable under Section 7 and 13(1)(d) read with
Section 13(2) of the PC Act was rejected twice by the State
Government. Thereafter, though the charge-sheet was to the
effect that he had committed the offence of demand of illegal
gratification and acceptance thereof through the mediator, he was
sought to be charged under Section 12 of the PC Act because of
non-accord of sanction by the State Government to prosecute him.
Such are not the facts of the case in hand.
15 In the matter of Kishan Patil (supra), the learned
Single Judge of this Court considered that the applicant therein
was on anticipatory bail throughout. There were two different
political parties in the village and the complainant had contested
village panchayat election from the rival party and lost that
election. By proceeding on these aspects of the matter, conviction
was stayed by the Aurangabad Bench of this Court.
16 In the matter of Ashok Sonawane (supra), the learned
Single Judge of this Court relied on some material which was not
even the part of the record of the trial Court for staying the
conviction.
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17 In the matter of Prasanta Patra (supra), the learned
Single Judge of Orissa High Court considered the fact that the
Judgment impugned in that matter was not containing the
reasoning in order to conclude that the applicant therein was
guilty of the alleged offences and that is how conviction was
stayed. It was held that the Judgment therein passed by the
learned trial Court is not in conformity with the provisions of
Section 354 of Code of Criminal Procedure.
18 In the case in hand, in paragraph 22 of its Judgment,
following are the observations of the learned trial Court, relevant
portion of which reads thus :
"22....... Therefore, in the light of the evidence of PW-1,
PW-2 along with other prosecution witnesses and so also
by taking into consideration the electronic evidence placed
on record it becomes clear that the accused nos.1, 2 had
demanded the bribe amount on 10/10/2014 to the
complainant and also the accused No.3 had abetted to such
offence. I answer point nos.1, 2 arise for my determination
in affirmative"
19 I have already stated the material on which reliance
was placed by the learned trial Court to conclude that the
applicant had committed offence of abetment made punishable
under Section 12 of the PC Act.
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20 By now, the Honourable Apex Court has by catena of
its Judgments crystallized the law in the matter of stay to the
conviction recorded by the learned trial Court after following
adjudicatory process. In the matter of K.C.Sareen v. CBI,
Chandigarh1, the following are the relevant observations of the
Honourable Apex Court found in paragraph 11 to 13 :
"11. 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 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, de hors the sentence of
imprisonment as a sequel thereto, is a different matter.
1 (2001) 6 Supreme Court Cases 584.
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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 polity. 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 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 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
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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.
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 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."
21 Similarly, in the matter of Shyam Narain Pandey
(supra), following are the observations found in paragraph Nos.9
to 13.
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"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) Cr.PC. Couple of provisos were added
under Section 389(1) Cr.PC 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 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.
10 In Ravikant S. Patil v. Sarvabhabhouma S.
Bagali [(2007) 1 SCC 673], a three-Judge Bench of this
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Court has held that the power to stay the conviction ...
"should be exercised only in exceptional circumstances
where failure to stay the conviction would lead to injustice
and irreversible consequences". In Navjot Singh Sidhu v.
State of Punjab and another [(2007) 2 SCC 574],
following Ravikant S. Patil case (supra), at paragraph-6,
this Court held as follows:
"6. The legal position is, therefore, clear that an
appellate court can suspend or grant stay of order of
conviction. But the person seeking stay of conviction
should specifically draw the attention of the appellate
court to the consequences that may arise if the
conviction is not stayed. Unless the attention of the
court is drawn to the specific consequences that would
follow on account of the conviction, the person
convicted cannot obtain an order of stay of conviction.
Further, grant of stay of conviction can be resorted to in
rare cases depending upon the special facts of the
case."
11 In State of Maharashtra through CBI, Anti
Corruption Branch, Mumbai v. Balakrishna Dattatrya
Kumbhar [2012 (12) SCC 384], referring also to the two
decisions cited above, it has been held at paragraph-15 that:
"15. ...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
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to consider all the facts as are pleaded by the applicant,
in a judicious manner and examine 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."
12 In State of Maharashtra v. Gajanan and another
[(2003) 12 SCC 432], and Union of India v. Atar Singh
and another [(2003 12 SCC 434], cases under the
Prevention of Corruption Act, 1988, this court had to deal
with specific situation of loss of job and it has been held that
it is not one of exceptional cases for staying the conviction.
13 In the light of the principles stated above, the
contention that the appellant will be deprived of his source of
livelihood if the conviction is not stayed cannot be
appreciated. For the appellant, it is a matter of deprivation of
livelihood but he is convicted for deprivation of life of another
person. Until he is otherwise declared innocent in appeal, the
stain stands........."
22 Suffice to state that there is nothing on record to come
to the conclusion that failure to stay the conviction would lead to
injustice and irreversible consequences so far as the applicant is
concerned. Depriving of sources of livelihood or termination from
services does not amount to grounds for stay to the conviction.
Gaikwad RD 19/20
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(33)APPANo.16112018(J)
23 In the result, I proceed to pass the following Order :
ORDER
(i) The application is rejected.
(ii) The hearing of the appeal is expedited in its category.
(iii) Needless to mention that observations in this Order
are prima facie view of the matter and they shall have no bearing on disposal of the appeal on merits.
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