Allahabad High Court
Ishwar Saran Trigunayak vs The State Of U.P. Thru. ... on 14 November, 2013
Bench: Zaki Ullah Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 8 A.F.R.
Case :- CRIMINAL APPEAL No. - 920 of 2013
Appellant :- Ishwar Saran Trigunayak
Respondent :- The State Of U.P. Thru. Superintendent Of Police Central
Counsel for Appellant :- Rajiv Srivastava "Raja",Arvind Kumar,Chandra Bhusan Pandey,Rohit Tripathi
Counsel for Respondent :- Bireshwar Nath
Hon'ble Zaki Ullah Khan,J.
(Crl. Misc. application No.102916 of 2013)
1. The instant application has been moved on behalf of the applicant/appellant under Section 398(1) of Cr.P.C. for suspending/stay against the operation of the impugned judgment and order dated 07.06.2013.
2. Learned counsel for the appellant argued at length and put up his case vehemently. Learned counsel tried to extract the pathetic aspect of the case that the appellant has put in thirty three years of service and only seven and half months left for completion of service and he is going to retire in the month of July, 2014. Therefore, under these circumstances the conviction order may be stayed.
3. In this regard, learned counsel for the appellant placed reliance of the Apex Court in Navjot Singh Sidhu vs. State of Pujab & another, reported in [AIR (2007) SC 1003]. Learned counsel for the appellant reiterated that the Apex Court has suspended the order of conviction in distinction to other cases in which corruption was involved. Learned counsel vehemently stressed on the facts that this is not a case which is covered by Anti Corruption Act because the appellant is a Cashier and he has been implicated under Anti Corruption Act only because he had released a sum of rupees for which he has been convicted. At the most, this case is covered under Section 409 of I.P.C. and in no way this is concerned with illegal gratification because appellant disbursed the amount on the recommendation of the other departments. At the most, he can be guilty of acting negligently or at the most, he sidetracked the procedure and disbursed the amount without observing rules. There was nothing like corruption and he is not covered by the provision of Anti Corruption Act, therefore, conviction order may be stayed. Mere suspending the sentence would not serve the purpose because he will not be reinstated and will not be able to receive pensionary benefits because of suspension and this will be irreparable loss to him throughout the life.
4. Learned counsel for the Bureau, Sri Bireshwar Nath, replied and submitted that in the recent judgment in Criminal Appeal No.1648 of 2012, State of Maharashtra through C.B.I., Anti Corruption Branch, Mumbai vs. Balakrishna Dattatrya Kumbhar, Hon'ble the Apex Court has set aside the order passed by Bombay High Court and held that if the proceedings are terminated in his favour and he ultimately succeeds, he can claim all the benefits and consequential benefits available to him as he was in service earlier, therefore, the plea that there is irreparable damage to him is not attracting the facts of the case. Learned counsel pointed out that this Court in a similar matter in Criminal Misc. Application No.80390 of 2013 in Criminal Appeal No.1281 of 2013 passed the orders and denied such type of relief and this Court has followed the order passed by the Apex Court in Navjot Singh Sidhu (supra) case, therefore, the court's order is very clear in this regard and such type of relief cannot be granted to the person.
5.(a) Heard learned counsel for the appellant as well as learned counsel for Bureau and perused the record. The settled principle has been pronounced by the Apex Court. First of all, in K.C. Sareen vs. C.B.I., Chandigarh, reported in [(2001) 6 SCC page 584] held as under:-
"The above policy can be acknowledged as necessary for the efficacy and proper functioning of public offices. If so, the legal position can 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 suspended. It would be a sublime public policy that the convicted public servant is kept under disability of the conviction inspite keeping the sentence of imprisonment in abeyance till the disposal of the appeal or revision."
(b.) The Apex Court has also maintained this ratio in Union of India vs. Atar Singh and another, reported in [(2003) 12 SCC 434] and thereafter in State of Punjab vs. Deepak Mattu, reported in [AIR (2009) SC 1185. In the recent case, State of Maharashtra through C.B.I., Anti-Corruption Branch, Mumbai (supra), Hon'ble the Apex Court has clearly laid down that corruption is not only a punishable offence but also undermines human rights, indirectly violating them, and systematic corruption, is a human rights violation in itself, as it leads to systematic economic crimes. The Apex Court criticized the order passed by Bombay High Court and set aside the stay order passed for staying the conviction pending the appeal.
6. Learned counsel for the appellant during the arguments insisted that this is not a case in which anti corruption proceedings are attracted. This is a distinct case and distinguishable from the other ratio given by Hon'ble the Apex Court because the appellant is a Cashier and merely involving him under Anti Corruption Act will deprive him of his fundamental rights. At this juncture, I am not convinced with the arguments raised by learned counsel for the appellant. The arguments though are penetrating but still there is a judgment against the appellant holding him guilty under the Anti Corruption Act and the trial court clearly laid down that he is guilty of the charges under the prevention of Anti Corruption Act. As per the judgment and order, the charges stand proved and these charges can be annulled, verified or modified only after hearing of the appeal and nobody can take it for granted. There is distinction in the provisions of the Anti Corruption and provisions of general law, therefore, this is a matter of appeal and pending appeal, it would not be proper to pass any order which will affect the merits and demerits of the appeal. At the moment, there is one order and that is covered under the provision of Anti Corruption Act and the Apex Court's views is very clear in this regard and in compliance with the Hon'ble Apex Court's view in Criminal Appeal No.1648 of 2012, I think it proper that in case the appellant ultimately succeeds, he could claim all the consequential benefits available to him during employment including the pensionary benefits. Therefore, at the most, only relief which can be granted to the appellant is that the appeal be listed at early hearing so that it may be concluded before the retirement of the appellant.
As far as stay of the conviction is concerned, there are no grounds to stay the conviction. Under these circumstances, since the appellant is eligible to claim all the pensionary benefits and all the consequential benefits after termination of the proceedings, the appeal be listed for hearing in the third week of February, 2014.
List the appeal in the 3rd week of February, 2014.
With the aforesaid observations/directions, the instant application is rejected.
Order Date :- 14.11.2013
akhilesh/-
