P.C. Mishra vs Cbi
2014 Latest Caselaw 264 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Judgment reserved on: 08.01.2014
                                        Date of Decision: 15.01.2014

+                     Crl.M(B) No.2126/2013 in Crl. Appeal No.692/2010
P.C. MISHRA                                              ..... Appellant
                      Through: Appellant in person

                                   versus

CBI                                                 ..... Respondent
                      Through:    Mr. Narender Mann, SPP with Mr.
                                  Manoj Pant, Advs. for CBI

CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                                 JUDGMENT

V.K.JAIN, J.

Crl.M(B) No.2126/2013

The appellant/ applicant before this Court was convicted under

Section 7 & 13 (1) (d) read with Section 13(2) of Prevention of

Corruption Act, 1988 (hereinafter referred to as "the Act") and was

sentenced to undergo RI for two (2) years each on each count and was

also sentenced to pay fine of Rs.10,000/- each or to undergo SI for two

(2) months each in default. The sentence awarded to the appellant has

been suspended vide order dated 23.9.2010. Now this application has

been filed by him seeking suspension of the conviction, primarily on the

ground that the after retiring from service on 30.6.2010, he has not been

able to join any employment due to his conviction though he is a senior

citizen having a wife and a divorcee daughter besides aged parents, to be

maintained by him.

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."

4. The appellant relies upon the judgments titled K.Subramanian v.

The Inspector of Police SPE-CBI/BS & FC Chennai 2012 Crl.L.J.

1673, Pravinkumar Paraskumar Gokhroo v. State of Gujarat & Anr.

2010 Crl.L.J. 477 and Dr.Shailendra Kumar Tamotia v. Republic of

India 2010 Crl.L.J. 196. In K.Subramanian(supra), the case of the

petitioner before the High Court was that he was the only bread earner

of the family and his sons were studying and if he was dismissed from

service, he would be put to irretrievable loss. However, in the case

before this Court, the appellant/applicant has already superannuated and

therefore, his circumstances are altogether different.

In Pravinkumar (supra), the High Court granted bail on the

ground that prima facie the case before it appeared to be a case wherein

morale of an honest officer and such other officers were more likely to

be affected if the conviction was eventually set aside but the officer is

removed from service in the meanwhile. It was noted that the Customs

Department was proposing to terminate his service not on the basis of

any evidence led in a departmental inquiry, but only on account of his

conviction in the criminal case which was under challenge.

In Shailender Kumar(supra), the appellant before the High Court

was on the board of some companies as non-Executive Director and it

was stated by him that in case the conviction is not suspended, he would

be left with no option but to tender the resignation from those

companies as well. He also stated that he had no other source of

livelihood. The facts of this case are also different from the facts of

these cases before this Court. In any case, in view of the decisions of

the Hon'ble Supreme Court, as discussed in the preceding paragraphs,

there would be no justification for suspending the conviction of the

appellant who has been convicted under the provisions of Prevention of

Corruption Act.

5. In the case before this Court, the respondent superannuated more

than three (3) years ago. The suspension of conviction has been sought

only on the ground that he has been unable to join any job, on account

of his conviction on the charges of corruption. However, no material has

been placed on record by the respondent, which would show that he was

offered an employment but was not allowed to join, only on account of

his having been convicted on the charges of corruption. Though the

appellant claims that he has to maintain his aged parents and a divorcee

daughter, he has not told the Court as to what are his assets and what are

the assets and income of his daughter and other family members. In the

absence of any financial details including the assets and income of the

appellant and his family members, it cannot be known whether he is not

in a position to sustain himself and his family members without finding

a job at the age of more than 63 years. Even otherwise, the appellant has

become over-age for any job in the government or in a public sector

undertaking. Nothing prevents the appellant from pursuing some other

vocation in case he is unable to find a job on account of his conviction.

For the reasons stated hereinabove, I find no merit in this

application and the same is hereby dismissed.

JANUARY 15, 2014/rd                                         V.K. JAIN, J.