REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.                OF 2008 (Arising out of S.L.P. (Crl.) No. 6143 of 2006)

State of Punjab … Appellant

Vs.

Navraj Singh … Respondent

J U D G M E N T

DR. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge  in  this  appeal  is  to  the  order  passed  by  a

learned Single Judge of the Punjab and Haryana High Court

directing that the conviction of the respondent shall remained

stayed during the pendency of Criminal Appeal No. 1498- SB

of 2002.

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3. Background facts in a nutshell are as follows:

4. Respondent who was working as Patwari Halqa and was

convicted by learned Special Judge, Nawanshahr, Punjab

for  offences  punishable  under  Sections  7  and  13(1)(d)

read with Section 13(2) of the Prevention of Corruption

Act, 1988 (in short ‘P.C. Act’) and sentenced to undergo

rigorous imprisonment for a period of three years and to

pay a fine of Rs.2000/- with default stipulation. Against

the judgment in question respondent filed the aforesaid

Criminal appeal which was admitted.  After admission of

the appeal,  respondent filed an application in terms of

Section 389(1) of the Code of Criminal Procedure, 1973

(in short the ‘Code’) read with Section 482 of the Code for

suspension of the judgment of  learned Special Judge.

5. The  High  Court  by  order  dated  27.1.2005  stayed  the

conviction.   According  to  the  appellant,  the  view

expressed  by  this  Court  in  K.C.  Sareen v.  CBI,

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Chandigarh [2001(6) SCC 584] was not kept in view.  The

High  Court  dismissed  that  application  only  on  the

ground that the review of the order was not permissible.   

6. It is submitted by learned counsel for the appellant-State

that  the  suspension  of  the  conviction  is  clearly

unsustainable.   It  is  pointed  out  that  the  High  Court

noted that the Collector, Nawanshaher had given a notice

for dispensing his services as Patwari Halqa, Musapur.

7.  Learned counsel for the respondent submitted that the

High  Court  took  note  of  the  fact  that this  was a  case

where the prayer for suspension of the conviction was to

be  granted.  Unless  the  order  of  conviction  was

suspended, the respondent would have lost his job.

8. In  State of Maharashtra v.  Gajanan and Another [2003

(12)SCC 432], it was noted as follows:

Having perused the impugned order as also the judgment of this Court in K.C. Sareen’s case

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[2001(6) SCC 584]   we find the High Court had no room for distinguishing the law laid down by this Court  in  K.C.  Sareen  case supra even on facts. This Court in the said case held: (SCC p.  

589, para 11) “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, dehors the sentence of imprisonment  as  a  sequel  thereto,  is  a different matter.”

(emphasis supplied)

In  the  said  judgment  of  K.C.  Sareen’s  case (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 staying the conviction. It should also be noted that the view expressed by this Court in  K.C.

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Sareen case (supra) was subsequently approved followed by the judgment of this Court in Union of India v. Atar Singh [2003(12) SCC 434].

9. In  Union of India v.  Avtar Singh & Anr. (2003(12) SCC

434) it was held as follows:

“This appeal is directed against the impugned order  of  the  High  Court.   The  respondent- accused,  who  has  been  convicted  under Section  409  IPC  and  Section  13  of  the Prevention  of  Corruption  Act,  preferred  an appeal  to  the  High  Court,  which  has  been entertained.   On  an  application  being  filed under  Section  389  of  the  Code  of  Criminal Procedure, the High Court has suspended the conviction solely on the ground that the non- suspension of conviction may entail removal of the  delinquent  government  servant  from service.”  

10. In K.C. Sareen’s case (supra) it was noted as follows:

“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

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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 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

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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.

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.”

11.     In   State of Haryana v. Hasmat [2004(6) SCC 175] it

was noted as follows:

“6. Section  389  of  the  Code  deals  with suspension of  execution of  sentence  pending the appeal and release of the appellant on bail. There  is  a  distinction  between  bail  and suspension of  sentence.  One of  the essential ingredients of Section 389 is the requirement for  the  appellate  court  to  record  reasons  in writing for ordering suspension of execution of

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the  sentence  or  order  appealed.  If  he  is  in confinement, the said court can direct that he be released on bail  or on his own bond. The requirement  of  recording  reasons  in  writing clearly  indicates that there has to be careful consideration of the relevant aspects and the order  directing  suspension  of  sentence  and grant of bail should not be passed as a matter of routine.”

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.

14. Appeal is allowed.

…………………………….J. (Dr. ARIJIT PASAYAT)

           …………………………….J. (H.S. BEDI)

New Delhi,

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July 14, 2008    

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