K.K. Verma vs C.B.I.
2014 Latest Caselaw 1047 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                    Reserved on: 24.02.2014
%                                               Date of Decision: 26.02.2014

+                              Crl. A. No.1126 of 2013
K.K. VERMA                                           ....Appellant
                          Through:    Mr. R.K. Gupta & Mr. B.P. Gupta,
                                      Advs.

                                      Versus

C.B.I.                                                  ....Respondent
                          Through:    Mr. Manoj Pant & ms. Utkarsha Kohli,
                                      Advs. for Mr. Narender Mann, Spl. PP,
                                      CBI.
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                                     JUDGMENT

V.K.JAIN, J.

Crl. M.A. No.18710/2013 (for Stay of Conviction)

The case of the CBI against the appellant in a nutshell is as

follows:

Inspector Sunil Dutt of CBI was entrusted with the verification of

a complaint alleging purchase of sub-standard product by the Punjab

Regional Office of FCI. The appellant K.K. Verma who was working as

the Assistant Manager (Vigilance), had conducted field verification with

respect to the said complaint and had also met Inspector Sunil Dutt in

this regard, in CBI office at Jam Nagar House. On 12.9.2001, the

appellant met him outside his office and enquired about the verification

which he was making. When the complainant(Inspector Sunil Dutt) told

him that the verification was in its last stage, the appellant allegedly

asked him to prepare his recommendation in such a manner that the

matter gets referred back to the Vigilance Department of FCI, and

offered to pay Rs.1.00 lakh to him for this purpose. The appellant also

made a telephone call to the complainant on 13.9.2001, whereupon he

(the complainant) reported the matter to his superior officers. A trap

was then laid to catch the appellant red-handed while offering bribe to

the complainant and two public officers were arranged. One of them

was to act as a shadow witness and remain with the complainant. A

digital recorder was also procured for the purpose. As per the case set

out by CBI one of the panch witnesses sat in Room No.36. When the

appellant came to the said office he was introduced to the other panch

witness Ram Niwas as the person assisting the complainant. The draft

report was shown to the appellant, who suggested a few changes.

Thereafter the appellant took out a typed-written paper from his pocket

and gave it to the complainant, asking him to incorporate the

recommendation typed on that paper in his report. He then took out a

white envelope and offered the same to the complainant who accepted

the envelope, which was found to contain another brown envelope with

currency notes. The complainant kept the envelope on the table whereas

the panch witness Ram Niwas went out. The other members of the team

then entered the room and seized the currency notes as well as typed

report which the appellant had brought with him.

2. Vide impugned judgement dated 3.7.2013, the appellant was

convicted under Section 7 read with Section 12 of the Prevention of

Corruption Act, 1988 (for short „the PC Act‟) and vide Order on

Sentence dated 8.7.2009, was sentenced to undergo RI for two (2) years

and to pay fine of Rs.50,000/- or in default of payment of fine to

undergo SI for three (3) months. Being aggrieved from his conviction

and sentence awarded to him, the appellant has filed this appeal. The

sentence awarded to the appellant has already been suspended by this

Court vide order dated 6.9.2013.

3. This application has been filed by the appellant seeking stay of his

conviction primarily on the ground that after his conviction and giving a

show cause notice to him, he was dismissed by FCI on the basis of the

said conviction. This, according to the appellant, was done despite his

appeal having already been admitted by this Court on 6.9.2013.

The learned counsel for the appellant submits that the appellant is

going to superannuate after about one (1) year and unless his conviction

is stayed, he would not be allowed to join his duty in FCI.

4. The application has been strongly opposed by the learned counsel

for the CBI who submits that the appellant having been convicted under

the provisions of the PC Act, no ground for suspending the conviction is

made out.

5. The issue of stay of conviction in a case under the PC Act came to

be considered in Crl. M (Bail) No.2126/2013 in Crl. A. No.692/2010

titled P.C. Mishra Vs. CBI decided on 15.1.2014, where the following

view was taken:

"2. The application has been opposed by the respondent - CBI stating therein that the appellant/ applicant was working as Assistant Commissioner, Sales Tax, when he demanded a sum of Rs.4,000/- as bribe from the complainant for passing an order in his favour was caught red-handed, having accepted the said bribe. The respondent in its reply placed reliance upon the decision of the Apex Court in K.C. Sareen versus CBI, Chandigarh [(2001) 6 SCC 584]; State of Maharashtra versus Gajanan and another [(2003) 12 SCC 432] and Central Bureau of Investigation, New Delhi versus M.N. Sharma [(2008) 8 SCC 549] holding therein that the Appellate Court should not suspend the order of conviction during pendency of appeal, in a case of conviction on corruption charges.

3. In K.C. Sareen (supra), the Apex Court had before it the case of a government servant who was convicted under the provisions of Prevention of Corruption Act and was likely to lose his job in the event of conviction not being stayed.

Rejecting the appeal of the convict, the Apex Court, inter alia, observed and held as under:

"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...

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 was 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 demoralizing 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 fall out 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 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.

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."

In Deputy Director of Collegiate Education versus S.

Nagoor Meera [(1995) 2 SCR 308], the Apex Court, inter alia, observed as under:

"The more appropriate course in all such cases is to take action under clause (a) of the second proviso to Article 311(2) once a government servant is convicted of a criminal charge and not to wait for the appeal or revision, as the case may be. If, however, the government servant accused is acquitted on appeal or other proceeding, the order can always be revised and if the government servant is reinstated, he will be entitled to all the benefits to which he would have been entitled to, had he continued in service. The other course suggested, viz., to wait till the appeal, revision and other remedies are over, would not be advisable since it would mean continuing in service a person who has been convicted of a serious offence by a criminal court."

In M.N. Sharma (supra), a learned Single Judge of this Court, suspended the conviction of the appellant on the ground that in the absence of such an order, the respondent would lose his job. The order passed by this Court was set aside by the Apex Court relying upon its earlier decisions, including its decision in K.C. Sareen (supra) and Gajanan and another (supra). The Apex Court enunciated the legal position with respect to suspension of conviction as under:

"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 State of Maharashtra through CBI, Anti Corruption Branch, Mumbai versus Balakrishna Dattatrya Kumbhar [(2012) 12 SCC 384], the Apex Court referring to its earlier decision on the subject, set aside the order of the High Court suspending the conviction in a case of conviction on the charges of corruption. Allowing the appeal filed by CBI, the Apex Court, inter alia, observed and held as under:

"14....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. Thus, in the aforesaid backdrop, the High Court should not have passed the said order of suspension of sentence in a case involving corruption. It was certainly not the case where damage if done, could not be undone as the employee/respondent if ultimately succeeds, could claim all consequential benefits. The submission

made on behalf of the respondent, that this Court should not interfere with the impugned order at such a belated stage, has no merit for the reason that this Court, vide order dated 9.7.2009 has already stayed the operation of the said impugned order."

6. The learned counsel for the appellant has relied upon Ravikant S.

Patil Vs. Sarvabhouma S. Bagali (2007) 1 SCC 673, Rama Narang Vs.

Ramesh Narang & Ors. (1995) 2 SCC 513 whereas the learned counsel

for the CBI has relied upon State of Maharasthra through CBI, Anti

Corruption Branch, Mumbai Vs. Balakrishna Dattarya Kumbhar 2012

(10) SCALE 265.

7. In Ravikant S. Patil (supra), the issue before the Apex Court was

as to whether the appellant, whose conviction had been stayed by the

High Court in an appeal filed by him, was disqualified under Sections

8(1) & (3) of the Representation of People Act, 1951. Clarifying that an

order granting stay of conviction is not the rule but is an exception to be

resorted to in rare cases depending upon the facts of a case, the Apex

Court held that where the conviction itself is stayed, the effect is that the

conviction will not be operative from the date of stay, though an order

of stay does not render the conviction non-existent, it only renders it

non-operative. It was held that on account of the conviction of the

appellant having been suspended, he was not disqualified in terms of

Sections 8(1) & (3) of the Representation of People Act, 1951.

Therefore, this judgement is not relevant for the purpose of deciding

whether the conviction of the appellant is stayed or not.

8. In Rama Narang (supra), the appellant had been conviction for the

offence since punishable under Section 120B read with Section 420 and

114 of IPC. The issue before the Apex Court in the aforesaid case was

as to whether the appellant was liable to be visited with the

consequences of Section 267 of the Companies Act, which inter alia

provides that no company shall appoint or employ, or continue the

appointment or employment of any person as its Managing Director or

whole-time Director, who is or has been convicted at any time of an

offence involving moral turpitude. The appellant filed an appeal against

his conviction and the operation of the impugned order was stayed by

this Court. The Bombay High Court in collateral proceedings however

took a view that Delhi High Court had no power to suspend the

conviction. The Apex Court, took note of the fact that Delhi High Court

vide its interim order in the appeal filed by the appellant against his

conviction had stayed the operation of the order impugned before it. In

this context, the issue which arose before the Apex Court was whether

the appellate court could suspend the order of conviction or only the

sentence. The Apex Court, after considering the application which the

appellant had filed in the appeal against his conviction, found that he

had not sought any order of this Court for stay or disqualification he was

likely to incur under Section 267 of the Companies Act on account of

his conviction and, therefore, it could not be inferred that this Court had

granted a stay of the operation of the impugned judgment. The Apex

Court, however, found substance in the argument that Bombay High

Court, while dealing with the interim stay of the order of the Delhi High

Court, in collateral civil proceedings, could not have held that the Delhi

High Court had no power or jurisdiction to suspend the order of

conviction. Upholding the power of appellate court to stay conviction in

appropriate cases, the Apex Court inter alia held as under:

"19.That takes us to the question whether the scope of Section 389(1) of the Code extends to conferring power on the Appellate Court to stay the operation of the order of conviction. As stated earlier, if the order of conviction is to result in some- disqualification of the type mentioned in Section 267 of the Companies Act we see no reason why we should give a narrow meaning to Section 389(1) of the Code to debar the court from granting an order to that effect in a fit case..........In a fit case if the High Court feels satisfied that the order of conviction needs to be suspended or stayed so that the convicted persons does not suffer from a certain disqualification provided for in any other statute, it may exercise the power because otherwise the damage done cannot be undone; the disqualification incurred by Section 267 of the Companies act and given effect to cannot be undone at a subsequent date if the conviction is set aside by the Appellate Court. But while granting a stay of

suspension of the order of conviction the Court must examine the pros and cons and if it feels satisfied that a case is made out for grant of such an order, it may do so and in so doing it may, if it considers it appropriate, impose such conditions as are considered appropriate to protect the interest of the shareholders and the business of the company."

It would, thus, be seen that this judgement also is not relevant for

the purpose of deciding whether in the facts & circumstances of the

case, the conviction of the appellant under the provisions of Section 7 of

the PC Act read with Section 12 thereof should be stayed or not.

9. In State of Maharashtra through CBI, Anti Corruption Branch,

Mumbai versus Balakrishna Dattatrya Kumbhar (supra), the respondent

before the Apex Court who had been convicted under Section 13(1)(e)

of the PC Act, subsequent to his conviction was placed under

suspension and was served a show cause notice to explain why in view

of his conviction he should not be dismissed from service in view of

provisions of Rule 11 of CCS (CCA) Rules, 1965. At that stage he

approached this Court by filing an application under Section 389(1) of

the Code of Criminal Procedure, seeking suspension of the order of his

conviction during the pendency of the appeal which he had filed against

his conviction. This Court vide order dated 8.4.2008, suspended the

conviction of the appellant. Being aggrieved CBI filed the aforesaid

appeal before the Apex Court. After taking into consideration its

decisions in Rama Narang (supra), State of Tamil Nadu Vs. Jaganathan

AIR 1966 SC 2449, K.C. Sareen (supra), Ravikant S. Patil (supra) and

Navjot Singh Sidhu Vs. State of Punjab & Anr. AIR 2007 SC 1003, the

Apex Court inter alia held as under:

"12. Thus, in view of the aforesaid discussion, a clear picture emerges to the effect that, 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 Court has to consider all the facts as are pleaded by the applicant, in a judicious manner and examined 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.

13. The instant case is required to be examined in light of the aforesaid settled legal propositions. The relevant part of the impugned order reads as under:

"As the applicant would suffer serious prejudice on account of order of dismissal, in my opinion, the applicant is justified in applying to this Court for suspending the order of conviction so that the Department shall not precipitate the matter further. The applicant through counsel fairly submits that relying on this order, the applicant will not claim further relief of setting aside the order of suspension which is already operating against the applicant passed by the Department on 1st November, 2007."

14. The aforesaid order is therefore, certainly not sustainable in law if examined in light of the aforementioned judgments of this Court. 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. Thus, in the aforesaid backdrop, the High Court should not have passed the said order of suspension of sentence in a case involving corruption. It was certainly not the case where damage if done, could not be undone as the employee/respondent if ultimately succeeds, could claim all consequential benefits....."

10. In view of the several decisions of the Apex Court as discussed

hereinbefore, I am of the considered view that the facts and

circumstances of the case do not justify stay of the conviction of the

appellant under Section 7/12 of the PC Act. He has been charged with a

serious offence that he offered bribe to an officer of CBI for the purpose

of obtaining a report which could result in the inquiry being conducted

by the complainant coming back to the Vigilance Department of FCI,

where the appellant at that time was posted. The purpose obviously

could be to favour the persons against whom the inquiry was directed,

while examining the matter in the Vigilance Department of FCI. In my

view, it would not in public interest to allow a public servant who has

been convicted of an offence under the provisions of PC Act to continue

in the public employment held by him, since there is a reasonable

possibility of such a person indulging into corrupt practices so as to

make money during the limited period he would be holding the public

office. Moreover, allowing a person convicted on corruption charges to

join duty would demoralize the honest officers in his department besides

encouraging the dishonest ones. In the event of the appeal of the

appellant being allowed, he would be entitled to full back-wages and,

therefore, would not suffer any financial loss on account of his dismissal

subsequent to his conviction.

11. For the reasons stated hereinabove, the application is dismissed.

It is made clear that the observations made in this order being

tentative and prima facie in nature having been made only with a view

to decide this application shall not affect the decision on appeal on its

merits.

FEBRUARY 26, 2014                                           V.K. JAIN, J.
b'nesh