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CASE NO.: Appeal (crl.)  1251 of 2007

PETITIONER: STATE OF PUNJAB

RESPONDENT: DEEPAK MATTU

DATE OF JUDGMENT: 18/09/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.    1251           OF 2007 [Arising out of SLP(Crl.) No. 5958 of 2006]

S.B. SINHA, J

1.      Leave granted.

2.      Respondent is a public servant.  He was proceeded against in a case  under Prevention of Corruption Act.  He was sentenced to one and a half  years (18 months) rigorous imprisonment.   A fine of Rs. 1,000/- (Rupees  One Thousand Only) was also imposed upon him by Special Judge,  Fatehgarh Sahib, Punjab.   He preferred an appeal thereagainst marked as  Criminal Appeal No. 1022-SB/04.   In the said appeal, an application was  filed by the respondent for suspending of conviction purported to be under  Section 389 of the Code of Criminal Procedure, 1973.  By reason of the  Order dated 11.1.2005, learned Judge of the Special Court allowed the said  application holding;

"I have heard Ld. Counsel for the applicant-appellant  Deepak Mattu and Deputy Advocate General, Punjab  appearing for the respondent on an application moved  under Section 389 Cr.P.C. for suspension of conviction  recorded under Sections 7 and 13(2) of the Prevention of  Corruption Act.

The sentence of the appellant has already been  suspended.  He is working as Junior Engineer in Punjab  State Electricity Board.  It is argued that if his conviction  is not suspended, he may have to face dismissal from  service.  Three flaws in the impugned judgment have  been pointed out.  Firstly, that shadow witness has not  been examined; secondly, that the alleged demand was of  Rs. 2000/- and this bribe money was allegedly paid but at  the time of recovery, only an amount of Rs. 1900/- was  recovered; and thirdly, there is no corroboration to the  demand in as much as the complaint alone proved the  same and the shadow witness in whose presence it was  made has not been examined.

It will take a long time to decide the appeal.  There are  fairly good points to argue.  This application is allowed  and the conviction of the appellant is suspended during  the pendency of the appeal."

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3.      An application was filed by the appellant herein for vacation of stay of  conviction granted to him by reason of the said order with a prayer to recall  the same, whereby the Court’s attention was drawn to a judgment of this  Court in K.C. Sareen Vs. C.B.I., Chandigarh [(2001) 6 SCC 584].  By  reason of the impugned judgment while the Court accepted that an order  suspending the conviction could be allowed only in a very exceptional case,  dismissed the application of stay holding;

"The present petition is not maintainable.  Order dated  11.1.2005 can neither be reviewed nor recalled.  It was  passed in the presence of the Deputy Advocate General,  Punjab, who represented the respondent-State. The merits  of the case were considered.  It was considered that it  will take a long time to decide the appeal and there are  fairly good points to be argued.  Hence, application under  Section 389 Cr.P.C. was allowed and the conviction of  the appellant recorded under Sections 7 and 13(2) of the  Prevention of Corruption Act was suspended during  pendency of appeal.  There is no blanket bar imposed on  the Appellate Court to grant stay of conviction in  corruption cases.  After going through the ’grounds of  appeal’ and the contents of the application moved under  Section 389 Cr.P.C., it was considered that it was an  exceptional case.  Hence, the conviction was stayed  during pendency of the appeal.   Sentenced imposed on  the appellant had already been stayed.  Now, there exists  no reason, either for vacation of the order dated  11.1.2005 or to review/recall the same."

4.      Ms. Ruchira Gupta, learned counsel appearing on behalf of the  appellant would submit that the High Court being aware of the decisions of  this Court holding that ordinarily the suspension of conviction should not be  granted, must be held to have committed a manifest error in passing the  impugned judgment.  Mr. Neeraj Kumar Jain, learned counsel appearing on  behalf of the respondent on the other hand would submit that the respondent  being a government servant and he having been convicted only for a period  of one and a half years, the High Court cannot be said to have committed  any error in suspending the judgment of conviction.  In any event, the  learned counsel submitted that the Court for all intent and purport having  arrived at a decision that an exceptional case have been made out, no  interference therewith by this Court is warranted.

5.      Section 389 of the Code of Criminal Procedure, 1973 reads as under:- "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:

Provided that the Appellate Court shall, before  releasing on bail or on his own bond a convicted  person who is convicted of an offence punishable  with death or imprisonment for life or  imprisonment for a term of not less than ten years,  shall give opportunity to the Public Prosecutor for  showing cause in writing against such release.

Provided further that in cases where a convicted  person is released on bail it shall be open to the  Public Prosecutor to file an application for the  cancellation of the bail.

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                    (2)  The power conferred by this section on  an Appellate Court may be exercised also by the  High Court in the case of an appeal by a convicted  person to a Court subordinate thereto.

                     (3)  Where the convicted person satisfies  the Court by which he is convicted that he intends  to present an appeal, the Court shall -  

(i)     where such person, being on bail, is  sentenced to imprisonment for a term  not exceeding three years, or (ii)    where the offence of which such person  has been convicted is a bailable one,  and he is on bail,

order that the convicted person be released on bail,  unless there are special reasons for refusing bail,  for such period as will afford sufficient time to  present the appeal and obtain the orders of the  Appellate Court under sub-section (1), and the  sentence of imprisonment shall, so long as he is so  released on bail, be deemed to be suspended.

                   (4) When the appellant is ultimately  sentenced to imprisonment for a term or to  imprisonment for life, the time during which he is  so released shall be excluded in computing the  term for which he is so sentenced."

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 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, malafide or  any bad faith.  In K.C. Sareen (supra), this Court opined;

"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 heard soon after the filing of the

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appeal.  But suspension of conviction of the offence  under the PC Act, dehors the sentence of imprisonment  as a sequel thereto, is a different matter.

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 is  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 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 fallout 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 (sic) 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."

8.      In State of Maharashtra Vs. Gajanan and Another [(2003) 12 SCC  432], relying upon another decision of this Court in Union of India Vs. Atar  Singh [(2003) 12 SCC 434] and  also K.C. Sareen (supra), it was held; "5.   In the said judgment of K.C. Sareen 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 staying the conviction.  It should also  be noted that the view expressed by this Court in K.C.  Sareen case was subsequently approved followed by the

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judgment of this Court in Union of India v. Atar Singh"  

9.      Relying on the aforementioned two decisions, an order is passed in a  wrong, illegal premise.   There is no impediment which comes on its way  not to correct an apparent error. Article 362 of the Code of Criminal  Procedure is only operative in a situation where a final order has been  passed.  The Code of Criminal Procedure confers inherent power in the High  Court unlike the lower court’s.   

10.     We, therefore, see no reason as to why High Court cannot modify its  own interlocutory order when the matter is yet to be finally disposed of.  

11.     We, therefore, are of the opinion that the High Court was not correct  in its view.  We, therefore, allow this appeal by setting aside both the orders.  No costs.