Bombay High Court
Shri Kailash S/O Shankar Gade vs State Of Mah., Thr. Deputy ... on 8 November, 2019
Author: S. M. Modak
Bench: S. M. Modak
1 appln 812.19
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Misc. Application (APPA) No.812/2019
In
Criminal Appeal No.564/2019
Kailash Gade V State of Maharashtra, thr Deputy Superintendent of Police, Anti Corruption
Bureau, Bhandara
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Shri K.P. Sadavarte, Adv for applicant/appellant
Shri S. Ashirgade, APP for State.
CORAM : S.M. MODAK, J.
DATE : 07-11-2019.
Heard.
2. Due to conviction by the Special Judge, the employer-
Inspector General of Stamps has sought an explanation of this appellant
why he should not be dismissed. This gave a cause of action for the
appellant to approach this Court with a prayer for suspension of order
of conviction.
3. The suspension of conviction is being asked for the reasons
that if the conviction is not suspended he would be deprived of
pension. If the applicant is dismissed his financial condition would be
deteriorated and certain other grounds are agitated about the merits of
the matter. He further prayed that as per Section 389(1) of the Code of
Criminal Procedure, 1973, by giving reasons the order passed by the
Special Judge can be suspended.
4. The prayer is opposed for the reason that there is no
provision and it is not meritorious.
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2 appln 812.19
5. Earlier and today, I have heard both the sides. It is true
that the judgment in case of Navjot Singh Sidhu vs State of Punjab
and another, reported in 2007 ALL SCR 617 is not given on the
background of conviction under the Prevention of Corruption Act, 1988.
However, the Hon'ble Supreme Court gave certain observations which
are material even while dealing with the present application. The
Court has to see the consequences of the conviction and the stay has to
be resorted only in rare cases depending on the special facts of the case.
It is also true that this Court in case of S Manik Reddy s/o S. Sanganna
Reddy vs State of Maharashtra, reported in 2009 All MR (Cri) 164 has
dealt with a similar issue. If a triable case on merits is made out then
the prayer for suspension can be allowed.
6. In order to ascertain whether the case for suspension of the
conviction is made out, with the assistance of learned Advocates
appearing for both the sides I have perused the judgment and the
evidence of material witnesses. I feel that the order of conviction can
be suspended.
7. The age of the appellant as on today is of 47 years and yet
he has got 11 years to do the job. It is admitted fact that the appellant
(who is accused no.1) has not accepted the bribe amount. It was
accepted by accused no.2 and there is a evidence that due to the
instructions given by this appellant, the amount was accepted. Accused
no.2 is not a public servant.
8. The first demand was on 16-12-2014 and the present
appellant instructed the complainant to go and meet accused no.2. At
that juncture, this appellant has not demanded the amount. The amount
was demanded by accused no.2 and accordingly the services of Anti
Corruption Bureau were availed by the complainant.
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3 appln 812.19
9. On the date of trap i.e. on 17-12-2014, the appellant being
Sub-Registrar has completed registration of the document of the niece
of the complainant whereas, registration of document of the complainant
was in the process. It is true that on the date of trap i.e on 17-12-2014,
though the demand was not reiterated traditionally i.e. orally but, it was
confirmed from the side of the appellant by doing some calculations on
the calculator used by the appellant. So the evidence suggests that the
device of calculator was used by the appellant. There are few more
grounds raised.
10. The hash value of recorded conversation was ascertained
not by an expert but by a Police Constable only who is not competent
to do it. Certain variance about putting voice recorder was also pointed
out. The complainant says one thing whereas shadow witness says
another thing.
11. Amongst these grounds, which ground will appeal to the
conscious of the Court at the time of final hearing, cannot be decided
now. But looking to the fact that the appellant has not accepted the
amount and hash value has not been ascertained by an expert, I think
the prayer can be allowed.
12. The effect of suspension of conviction is that the appellant
will continue to remain in service in spite of conviction. Ultimately, it is
for his employer to decide at which place the appellant is to be posted
and which type of work/job he has to be entrusted. While accepting
this request, this Court also considered one fact. That the appeals since
2002 are pending for their turn to come. So, it is not certain when this
appeal will be taken up for hearing. Hence, the following order is
passed :-
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4 appln 812.19
ORDER
a] The order of conviction passed by the Special Judge on 30-07-2019 in Special Criminal (ACB) Case No.11/2015, thereby convicting this appellant is stayed during the pendency of the appeal.
b] Application is disposed of.
JUDGE
Deshmukh
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