Bombay High Court
Pradeep S/O Trimbakrao Kale vs The State Of Maharashtra on 19 April, 2017
Bench: A.M. Badar
34-APPA-508-2016.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.508 OF 2016
IN
CRIMINAL APPEAL NO.232 OF 2016
PRADEEP S/o.TRIMBAKRAO KALE )...APPLICANT
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
Mr.Rajendra Deshmukh i/b. Mr.Ashish Satpute, Advocate for the
Applicant.
Ms.V.S.Mhaispurkar, APP for the Respondent - State.
CORAM : A. M. BADAR, J.
DATE : 19th APRIL 2017
P.C. :
1 This is an application by convict accused no.2 for
suspension of conviction recorded against him in Special Case
No.31 of 2015 vide judgment and order dated 14 th March 2016 by
the learned Special Judge, Pune. In the alternative, it is prayed
that the criminal appeal be listed for final hearing.
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2 Facts leading to the filing of the instant application are
thus :
On 17th September 2014, Vijay Chavan lodged a complaint
with the Anti Corruption Bureau (ACB), Pune, alleging that
parents of Manohar Yadav died and therefore he applied for
mutation of Shop Block No.80 owned by the Maharashtra Housing
and Area Development Authority (MHADA hereinafter) in his
favour, being legal heir of deceased owner. As his work of
mutation was not being done by the officials of the Housing
Board, as per the complaint of Vijay Chavan, Manohar Yadav had
authorized him to take up necessary action and proceedings for
mutation of the shop block. He alleged that when he approached
the Pune Housing Board, accused no.1 Jogindarsingh Rajput,
Estate Manager, and accused no.2 i.e. the present applicant
Pradeep Kale, Assistant Clerk, had demanded amount of
Rs.2,000/- and Rs.4500/- respectively from him for doing that
work of mutation. According to the prosecution case, verification
of this demand was conducted by availing services of PW2
Bhausaheb Detake - a shadow panch. After verification of
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demand, a trap was laid on 19 th September 2014 and during the
course of that trap, according to the prosecution case, accused
no.1 Jogindarsingh Rajput and accused no.2 Pradeep Kale i.e. the
present applicant, came to be apprehended on accepting illegal
gratification from complainant Vijay Chavan. This resulted in
lodging the FIR and subsequent prosecution and ultimately by the
judgment and order dated 14 th March 2016, the learned Special
Judge, Pune, was pleased to convict both accused persons for
offences punishable under Sections 7, 13(1)(d) and 13(2) of the
Prevention of Corruption Act, 1988. Accordingly, they were
sentenced to suffer rigorous imprisonment for 3 years and 4 years
respectively on each count apart from imposition of some fine.
3 Heard Shri Deshmukh, the learned advocate appearing
for the applicant / accused no.2. He vehemently argued that
there is no bar for suspending conviction and it can be done by
demonstrating exceptional circumstances. In his submission, non-
availability of legal evidence to convict an accused amounts to an
exceptional circumstance and for this purpose, he placed reliance
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on the judgment of the Hon'ble Apex Court in the matter of
K.C.Sareen vs. CBI, Chandigarh 1. In submission of the learned
advocate for the applicant / accused no.2, there is no evidence of
demand and verification of demand. As such, for want of
evidence, accused persons ought not to have been convicted and
this amounts to an exceptional circumstance warranting stay of
the conviction. It is further argued that heir of the deceased
owners of the shop block namely Manohar Yadav did not step into
the witness box to corroborate version of the complainant as well
as panch witness. Consent / authority letter allegedly issued by
Manohar Yadav in favour of complainant Vijay Chavan was not
finding its place with papers of investigation and the same was not
before the Sanctioning Authority while granting sanction. This
letter came to be produced on record while the complainant was
in the witness box and the same came to be exhibited. This goes
to show that the same was not a part of the record of the Housing
Board, causing loss of substratum of the case of prosecution
against accused persons.
1 (2001) 6 Supreme Court Cases 584
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4 It is further urged that it was on 5 th September 2014
that complainant Vijay Chavan lodged complaint with the ACB.
The authority letter is dated 16th September 2014. The
application by legal heir Manohar Yadav was dated 5 th September
2014. The complaint to the ACB was on 17 th September 2014.
When the application was already moved to the Housing Board by
legal heir of deceased lessee of the Housing Board, then there was
no occasion for the legal heir to authorize the complainant to
intervene in the matter for getting the work of mutation done.
With this submission, the learned advocate for the applicant /
accused no.2 drew my attention to the cross-examination of the
complainant to demonstrate that the complainant had an axe to
grind against the present applicant / accused no.2 as the
complainant had, on earlier occasion moved an application under
the Right to Information act and necessary information was not
provided to him. This, according to the learned advocate for the
applicant / accused no.2, was a cause for framing the accused
persons in the crime in question. It is further argued that voice
recorder was not produced before the court. It is also submitted
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that size of the cabin of the applicant / accused no.2 is differing in
version of every prosecution witnesses and there is serious doubt
as to whether the shadow panch has actually witnessed the
transaction and heard what transpired at the time of the trap.
With this, it is prayed that conviction imposed on the applicant /
accused no.2 be stayed as the applicant / accused no.2 had
rendered unblemished service with the Housing Board and is
likely to retire within a short period.
5 As against this, the learned APP drew my attention to
the impugned judgment and order of conviction and consequent
sentence and contended that all these aspects were duly
considered by the learned Special Judge while deciding the matter
and therefore, evidence of the prosecution cannot be weighed at
this stage to infer that the same is lacunic warranting suspension
of conviction.
6 I have carefully considered the rival submissions and
also perused copies of deposition of prosecution witnesses, the
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impugned judgment and order as well as relevant documents.
The only point which arises for consideration is whether lacunic or
discrepant evidence against accused person amounts to an
exceptional circumstance warranting stay of his conviction. In the
matter of K.C.Sareen (supra) in paragraph 11 the Hon'ble Apex
Court has categorically held that though suspension of sentence is
a routine matter, stay to the conviction or suspension of conviction
is a serious business and such power is to be exercised in very
exceptional case. What amounts to an exceptional case can be
seen from the judgment of the Hon'ble Apex Court in the matter of
Navjot Singh Sidhu vs. State of Punjab and Another 2. In
paragraph 6 of the said judgment it is held that, that consequences
which may follow on account of the conviction may amount to an
exceptional circumstance. Thus, consequence which entails on
conviction of the accused may amount to an exceptional
circumstance warranting suspension of conviction. In the case in
hand, what would follow upon conviction of the applicant /
accused no.2 is administrative action by his employer which may
result in his removal from service. Whether removal of a public
2 (2007) 2 SCC 574
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servant from service amounts to an exceptional circumstance or
not is a matter which was considered by the Hon'ble Apex Court in
the matter of Shyam Narain Pandey vs. State of Uttar Pradesh3.
After considering catena of judgments rendered by it, the Hon'ble
Apex Court has held thus, in paragraphs 9 to 13 of the said
judgment :
"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.
3 (2014) 8 SCC 909
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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
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
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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
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court has 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.
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Until he is otherwise declared innocent in appeal,
the stain stands........."
7 The Hon'ble Apex Court has held that loss of
employment or deprivation of source of livelihood by a public
servant because of refusal to stay his conviction does not amount
to an exceptional circumstance. Lacunic or discrepant evidence, if
any, in my considered view, does not amount to an exceptional
circumspect warranting stay to the conviction. Exercise of
appreciation of evidence can be undertaken at the time of final
hearing of the appeal and if the same is allowed, necessary
consequence shall always follow.
8 In this view of the matter, I see no reason constituting
exceptional circumstance warranting stay of conviction recorded
against the present applicant / accused no.2 by the learned trial
court.
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9 In this view of the matter, ruling in the matter of State
4 relied by the
of State of Punjab vs. Madan Mohan Lal Verma
learned advocate appearing for the applicant / accused no.2 is of
no assistance to the case of the applicant / accused no.2.
10 In the result, the following order :
i) The application is rejected.
ii) Hearing of the appeal is expedited.
iii)Liberty to mention after vacation.
(A. M. BADAR, J.)
4 2013 AIR (SC) 3368
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