Dr. R. Pal vs Cbi
2013 Latest Caselaw 4359 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       Crl.M.B.1584/2013 in CRL.A. 986/2013

                                                    Date of Decision: 24th September, 2013

     SMT. P.M SINGH                                                          ..... Appellant
                                  Through:            Mr. Uday U. Lalit, Sr. Adv. with Mr.
                                                      Pramod Kr. Dubey,Ms. Smriti Sinha, Mr.
                                                      Shri Singh, Mr. Suksham Chauhan, Ms.
                                                      Akansha Singh, Mr. Nitin Saluja & Ms.
                                                      Vasundhara Nagrath, Advs.

                                            versus

     CBI                                                                ..... Respondent
                                  Through:            Mr. R.V.Sinha, Standing Counsel with
                                                      Mr. A.S.Singh, Adv.

+                       Crl.M.B. 1651/2013 in CRL.A. 1031/2013

     DR. G.S.THIND                                                          ..... Appellant
                                            Through:            Dr. Harish Uppal with Mr. Alok
                                                                Bachawat & Mr. Tileshwar Prasad,
                                                                Advs.

                                            versus

     CBI                                                                    ..... Respondent
                                            Through:            Mr. R.V.Sinha, Standing Counsel
                                                                with Mr. A.S.Singh, Adv.

+                       Crl.M.B. 1649/2013 in CRL.A. 1029/2013

     DR. R. PAL                                                       ..... Appellant
                                  Through:            Mr. Ramesh Gupta, Sr. Adv. with
                                                      Mr. Alok Bachawat & Mr. Uday Singh,
                                                      Advs.
                                  versus

     CBI                                                                ..... Respondent
                                  Through:            Mr. R.V.Sinha, Standing Counsel with

     Crl.M.B.1584/2013 in Crl.A.986/2013, Crl. M.B.1651/2013 in Crl.A.1031/2013,
     Crl.M.B.1649/2013 in Crl.A.No.1029/2013 and Crl.M.B.1650/2013 in Crl.A.1030/2013   Page 1 of 13
                                                      Mr. A.S.Singh, Adv.

+                      Crl.M.B.1650/2013 in CRL.A. 1030/2013

    SH.RAJ KUMAR GUPTA                                                      ..... Appellant
                 Through:                            Mr. Alok Bachawat with Mr. Uday
                                                     Singh, Advs.
                                 versus

    CBI                                                                ..... Respondent
                                 Through:            Mr. R.V.Sinha, Standing Counsel with
                                                     Mr. A.S.Singh, Adv.

    CORAM:
    HON'BLE MS. JUSTICE SUNITA GUPTA

                                           JUDGMENT

:SUNITA GUPTA, J.

1. Vide this common order, I shall dispose of Crl.M.B.1584/2013 in

Crl.A.986/2013, Crl.M.B.1650/2013 in Crl.A.1030/2013, Crl.M.B.

1651/2013 in Crl.A.No.1031/2013 and Crl.M.B.1649/2013 in Crl.A.

1029/2013 as the applications have been filed in respective appeals

against a common judgment dated 23.07.2013 and order on sentence

dated 31.07.2013 wherein the appellants were convicted for offences

punishable u/s 120-B IPC read with Section 420 IPC and under Section

13(2) read with Section 13(i)(d) of Prevention of Corruption Act, 1988

and under Section 13(1)(d) punishable under Section 13(2) of the

Prevention of Corruption Act, 1988. The appellants were sentenced as

under:-

Crl.M.B.1584/2013 in Crl.A.986/2013, Crl. M.B.1651/2013 in Crl.A.1031/2013,

 Three years rigorous imprisonment and a fine of Rs.10,000/-each, in default two months simple imprisonment, each, for offence u/s 120-B IPC read with Section 420 IPC and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988;

 Four years rigorous imprisonment and a fine of Rs.25,000/-

, in default six months simple imprisonment for offence u/s 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988.

 All the sentences were to run concurrently.

2. The charge against the appellants are that they entered into a

conspiracy with co-accused Kasturi Lal Bhatia, proprietor of M/s Centre

Point, 13 K.G Marg, New Delhi and issued health licence to K.L.Bhatia

by abusing their official position.

3. It is submitted by learned senior counsel for the appellant

P.M.Singh that the appellant was not the competent authority to grant

the health licence hence there was no question of any misconduct or

abuse of official authority. Admittedly, the competent authority was the

Medical Officer of Health (MOH), who in fact granted the said

permission vide his note dated 15.01.2003. When the appellant

P.M.Singh did not even have the power to issue the health licence, the

question of abuse of power did not arise, and hence the charges framed

in this regard have not been proved against her. In any event,

P.M.Singh received a detailed technical note dated 15.01.2003 written

Crl.M.B.1584/2013 in Crl.A.986/2013, Crl. M.B.1651/2013 in Crl.A.1031/2013,

by the then Chief Medical Officer (CMO), Dr. Pal which was endorsed

by the MOH, Dr. G.S.Thind. This note relied on the modified Master

Plan of Delhi which clearly stated that the request of the applicant

therein was justified and could be considered under the provisions of the

modified Master Plan. Further the note of Dr. Thind very clearly records

that the license has been renewed and the note was put up only for the

information of the Chairperson. The note sheet received by the appellant

dated 15.01.2003 was tampered with subsequently and the endorsement

of the MOH contained significant interpolations hence there is no

question of the appellant P.M.Singh having entered into any conspiracy

with any other accused persons. The acts of the appellant on the basis of

which charges have been framed were official acts and she should have

been granted the benefit of Section 384 of NDMC Act, 1994.

4. She has a good prima facie case to succeed in the appeal; she is a

senior citizen, aged about 64 years; she had contested the case for about

10 years and has been on bail throughout the case. She never misused

the privilege of bail and never violated any of the conditions of bail

throughout the trial; she had an unblemished record of public service;

she also worked as Member Secretary for Delhi Commission for

Women after her retirement in 2009; she has an aged and ailing mother,

besides her husband; there is no apprehension that she will flee or

abscond, as such, the sentence be suspended pending disposal of the

Crl.M.B.1584/2013 in Crl.A.986/2013, Crl. M.B.1651/2013 in Crl.A.1031/2013,

appeal.

5. Seeking suspension of sentence, it was submitted by counsel for

the appellant, Dr. G.S.Thind that there is actually no criminal case. The

question of re-entry and issue of licence from hygiene point of view are

matters of civil nature which can be corrected by deposit of the required

amount with L&DO. There is no complainant and CBI claims source

information. The learned Trial Court mislead about re-entry and vesting

of property in the President of India of Centre Point allegedly in 1999

and cancellation of health licence in 2000 on the basis of re-entry,

intimation in 1999. The cancellation of licence was not correct on the

said basis as this property had been re-entered way back on 03.02.1986

and the NDMC and its Administrator was fully aware of it. Despite the

said re-entry in 1986 and not withdrawn till date (not at least till 2005),

the Centre Point was running continuously from 1982 to 2004 and even

now. The resolution of NDMC of 1978 is on record that re-entry is

matter between lessor and lessee. The sanction was also bad for this

reason. The note sheets clearly show that all the facts were mentioned.

The health officers were cheated by K.L.Bhatia and shown only the

notification of 1999 without its guidelines and not being legal persons

accepted the notification for mixed use which does not make them

criminal. Everything was done with the approval of CMO, MOH and

the Chairman. There is not a whisper that any of the accused took any

Crl.M.B.1584/2013 in Crl.A.986/2013, Crl. M.B.1651/2013 in Crl.A.1031/2013,

benefit from K.L.Bhatia or his wife Prem Lata Bhatia. The main

beneficiary have been acquitted. Moreover the sanction order by Ms.

Khullar is bad for want of authority in Chairperson NDMC for issue of

sanction for prosecution of the appellant. The same is bad for non-

application of mind. The sine qua non for prosecution u/s 13(1)(d) of

Prevention of Corruption Act is demand and acceptance. There is not

even a whisper that any demand was made by the appellant or any of the

accused or any pecuniary or any other gain was obtained by any of the

accused. Raid was conducted on the residence of the appellant and

nothing was recovered. Cheating, if any, was done by K.L.Bhatia in not

submitting the guidelines. The appellant is 66 years of age; he is

suffering from number of ailments; he was not arrested and has been on

bail for the past eight years and he never misused the bail.

6. On behalf of Dr. R. Pal and Sh. Raj Kumar Gupta, it is submitted

by learned counsel for the appellants that one hotel in the name and

style of M/s Centre Point Hotel with 10 rooms and 20 beds came into

existence at 13, K.G. Marg, New Delhi in the year 1979.

Registration/licence to run the guest house was granted on 27.08.1980.

The first NDMC Health Licence was approved by the then

Administrator, NDMC Shri P.S. Bhatnagar on 10.05.1984 for 16 rooms

and 32 beds after receipt of NOC from DDA. The licence for the year

1999 to 2000 was approved. In the meanwhile, Dy. L & D.O., Ministry

Crl.M.B.1584/2013 in Crl.A.986/2013, Crl. M.B.1651/2013 in Crl.A.1031/2013,

of Urban Development, Government of India, New Delhi had informed

NDMC that premises situated at 13, Curzon Road had been re-entered

and vested with the President of India. Col. A.S.Gurung had ordered for

cancellation of health licence to M/s Centre Point on 27.12.1999 which

decision was duly communicated to Sh. K.L.Bhatia. However, no action

was taken by L& D.O and M/s Centre Point continued to run its

business without health licence.

7. On 20.11.2002, an application was received for renewal of lodging

house licence from Sh. K.L.Bhatia in the office of Dr. G.S.Thind, the

then MOH who marked the application to Sh. R.K.Gupta, Sanitary

Inspector-V on the same day. Sh. R.K.Gupta put up a note stating

therein that the licence could not be renewed. Dr. R.Pal, the then CMO

requested Dr. G.S.Thind to advice on the matter who called upon the

party to submit certain documents. Subsequently on 23.12.2002, an

undated letter was received from Sh. K.L.Bhatia along with a copy of

notification dated 07.05.1999 where mixed land use was allowed in

residential areas, subject to certain conditions. Dr. Thind marked the

same to Dr. R.Pal, CMO(Lic & Mal.) who further marked it to the

appellant R.K.Gupta. After inspecting the premises in question from

health point of view on 26.12.2002, appellant Raj Kumar Gupta

recommended the renewal/grant of health licence to the lodging house

with 31 rooms and 62 beds on temporary basis till such time some final

Crl.M.B.1584/2013 in Crl.A.986/2013, Crl. M.B.1651/2013 in Crl.A.1031/2013,

decision is taken by DDA/L&D.O. Thereafter the matter was considered

by Dr. R.Pal, Dr. Thind and Chairperson Smt. P.M.Singh and the health

licence was renewed for the year 2003-2004 on 28.01.2003 under the

signature of Dr.Thind.

8. It was submitted that the appellants have been sentenced for a fixed

period of sentence and there are no exceptional circumstances

warranting the rejection of their prayer for suspension of sentence.

Further the disposal of the appeal is likely to take considerable time and

in the event the sentence is not suspended, the same would render the

present appeals infructuous. It was urged on behalf of Dr.R.Pal that he

is aged about 63 years and is suffering from various ailments. He has

two daughters and there is no other male member in the family; he has

an unblemished exemplary record of service and there are no criminal

antecedents; he has deep roots in the society and there are no chances of

his absconding or fleeing away from justice; he was on bail through the

trial and never misused the concession of bail. Similarly on behalf of

the appellant Raj Kumar Gupta, it was submitted that he is a heart

patient and has undergone heart surgery in 2007; he has an unblemished

and exemplary record of service and is still in service. There are no

chances of his absconding or fleeing from justice.

9. Reliance was placed on Sudhir Kumar Jain vs. State of Delhi,

2008(1) JCC 564; Angana & Another v. State of Rajasthan, 2009(2)

Crl.M.B.1584/2013 in Crl.A.986/2013, Crl. M.B.1651/2013 in Crl.A.1031/2013,

Scale 241 and Suresh Kumar & Ors vs. State, (2001) 10 SCC 338.

10. The applications were opposed by learned Public Prosecutor for

CBI. Reliance was placed on State of Punjab v. Deepak Mattu, (2007)

11 SCC 319; Anil Ari v. State of West Bengal, AIR 2009 SCC 1564

and Shiv Kumar vs. State of N.C.T. of Delhi, 2008 (16) SCALE 27.

11. 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.

(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

Crl.M.B.1584/2013 in Crl.A.986/2013, Crl. M.B.1651/2013 in Crl.A.1031/2013,

(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."

12. Deepak Mattu was a case under the Prevention of Corruption Act

and the respondent was sentenced to 1-1/2 year rigorous imprisonment

and fine of Rs. 1,000/-. He preferred an appeal in which an application

was filed by him for suspending conviction u/s 389 of the Cr.P.C. The

application was allowed and conviction of the appellant was suspended

during the pendency of the appeal. State of Punjab preferred an appeal

before Hon'ble Supreme Court and an application was filed for vacation of

stay of conviction granted to the accused with a prayer to recall the same.

Hon'ble Supreme Court observed that the order of suspension of

conviction is not to be readily granted.

13. Possible delay in disposal of the appeal and that there are arguable

points by itself may not be sufficient to grant suspension of a sentence.

The grounds do not suggest that the respondent was proceeded against by

the State, mala fide or in any bad faith. Relying upon K.C. Sareen vs.CBI,

Crl.M.B.1584/2013 in Crl.A.986/2013, Crl. M.B.1651/2013 in Crl.A.1031/2013,

(2001) 6SCC 584 and State of Maharashtra vs. Gajanan, (2003) 12 SCC

432, the order was set aside. It was rightly submitted by learned counsel

for the appellants that this case is distinguishable inasmuch as in that case

the order of conviction was suspended and in the instant case the

appellants are not seeking stay of the eviction order but they are seeking

suspension of sentence only. Anil Airi (supra) was a case where the

accused was convicted u/s 302 IPC, yet keeping in view his age (70 years),

the sentence was suspended and he was released on bail. Although in Shiv

Kumar's case (supra) which was also a case u/s 7 and 13(2) of the

Prevention of Corruption Act, 1988, the sentence was not suspended and

directions were given to the High Court to dispose of the appeal as early as

practicable. However, in Sudhir Kumar Jain's case (supra) which was

also a case u/s 7 and 13(2) of Prevention of Corruption Act, 1988, the

sentence was suspended by observing that Section 389(3) Cr.P.C

empowers the Trial Court to suspend the sentence of such convicts, who

have been convicted for a period not exceeding three years, for such period

as will afford them sufficient time to present an appeal. Section 389 also

empowers the appellate Court including the High Court to suspend the

sentence and release the convict on bail during the pendency of the appeal

in case the period of sentence does not exceed three years.

14. Angana & Another (supra) was also a case where the accused

were awarded sentence of four years rigorous imprisonment with fine. The

Crl.M.B.1584/2013 in Crl.A.986/2013, Crl. M.B.1651/2013 in Crl.A.1031/2013,

sentence was suspended and appellants were granted bail. In

Bhagwanram Shinde(supra) and Suresh Kumar(supra), it was held that

when a convicted person is sentenced to a fixed period of sentence and

when he files an appeal under any statutory right, suspension of sentence

can be considered by the appellate court liberally unless there are

exceptional circumstances. No exceptional circumstances were

highlighted, as such, the sentence was suspended and the appellants were

released on bail.

15. In the instant case also the statements made by learned counsel for

the appellant on factual matrix of the case have not been controverted by

learned PP for CBI except placing reliance on the authorities as referred

above. It is the case of the appellants that they were on bail throughout the

trial and never misused the concession of bail. They have raised arguable

points which requires consideration. They have deep roots in the society;

there are no chances of their fleeing from justice; it is likely to take time

for the appeal to be heard, under the circumstances, keeping in view the

totality of the facts and circumstances of the case, the sentence of the

appellants are ordered to be suspended till disposal of the appeal:-

(i) On their furnishing personal bond in the sum of Rs.50,000/- each with two sureties in the like amount to the satisfaction of the Trial Court;

(ii) The appellants will not leave the country without the permission of this Court;

Crl.M.B.1584/2013 in Crl.A.986/2013, Crl. M.B.1651/2013 in Crl.A.1031/2013,

(iii) They will surrender their passport, if not already surrendered.

The applications are accordingly disposed of.

Copy of this order be given dasti under the signature of Court Master.

SUNITA GUPTA, J SEPTEMBER 24, 2013 as

Crl.M.B.1584/2013 in Crl.A.986/2013, Crl. M.B.1651/2013 in Crl.A.1031/2013,