Kerala High Court
Savitha S.Kannan vs Inspector Of Police, Spe/Cbi ... on 27 July, 2021
CRL.A No.309/2018 1 / 12
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
Tuesday, the 27th day of July 2021 / 5th Sravana, 1943
CRL.M.APPL.NO.1/2021 IN CRL.A NO. 309 OF 2018
CC NO.10/2014 OF THE SPECIAL COURT (SPE/CBI) III, ERNAKULAM.
PETITIONER/APPELLANT/ACCUSED NO.2
SAVITHA S.KANNAN D/O.R.KANNAN, AGED 38 YEARS,PUBLIC SERVANT (AIRLINE
ATTENDANT ON FIXED TERM CONTRACT BANS, WHOLLY OWNED SUBSIDIARY
COMPANY OF AIR INDIA LTD.), DEVIKRIPA, PWRA - 50,PARAYIL LANE,
ELAMAKKARA, ERNAKULAM,PIN 682 026
RESPONDENT/RESPONDENT/COMPLAINANT
INSPECTOR OF POLICE, SPE/CBI KOCHI REPRESENTED BY THE STANDING
COUNSEL FOR CBI.
Petition praying that in the circumstances stated therein the High
Court be pleased to suspend the conviction pending against the
petitioner/appellant/accused no.2 in C.C.10/2014 on the files of Spl.Judge
(SPE/CBI-III) Ernakulam, pending appeal.
This petition coming on for orders upon perusing the petition and
upon hearing the arguments of M/S V.JOHN SEBASTIAN RALPH, P.V.DENCY,
K.J.JOSEPH ERNAKULAM, V.JOHN THOMAS, V.T.LISSY, Advocates for the
petitioner and the STANDING COUNSEL for the respondent, the court passed
the following:
P.T.O
CRL.A No.309/2018 2 / 12
"CR"
R.NARAYANA PISHARADI, J
**********************
Crl.M.A.No.01 of 2021
in
Crl.A.No.309 of 2018
-------------------------------------
Dated this the 27th day of July, 2021
ORDER
The petitioner was the second accused in the case
C.C.No.10/2014 on the file of the Court of the Special Judge
(SPE/CBI)-III, Ernakulam.
2. The trial court convicted the petitioner for the offence
punishable under Section 8 of the Prevention of Corruption Act,
1988 (for short 'the PC Act') and also under Section 120B of the
Indian Penal Code read with Section 8 of the PC Act.
3. The petitioner has filed the appeal
(Crl.A.No.309/2018) challenging the order of conviction entered
against and the sentence imposed on her by the trial court. The
sentence imposed on her by the trial court was suspended by this
Court as per the order dated 02.03.2018.
CRL.A No.309/2018 3 / 12
Crl.M.A.No.01 of 2021
in
4. The present application is filed by the petitioner under
Section 482 of the Code of Criminal Procedure, 1973 (for short
'the Code') for suspension of the order of conviction passed
against her by the trial court.
5. The petitioner was a person employed as Airline
Attendant in the Air India Express. The prosecution case is that,
she entered into a criminal conspiracy with the first and the third
accused for collecting illegal gratification from candidates for
appointment to the post of Airline Attendant and pursuant to
such conspiracy, money was collected from such candidates by
the first and the third accused. It is also alleged that the
petitioner obtained an amount of Rs.6,50,000/- out of the illegal
gratification received by the first and the third accused.
6. Heard learned counsel for the petitioner and the
learned Central Government Standing Counsel who appeared for
the C.B.I.
7. Section 389(1) of the Code deals with powers of the
appellate court regarding suspension of execution of the sentence
CRL.A No.309/2018 4 / 12
Crl.M.A.No.01 of 2021
in
of order appealed against. There can be no dispute with regard
to the fact that, in exceptional circumstances, the appellate court
has power to suspend the order of conviction passed against an
accused.
8. If the High Court feels satisfied, in a fit case, that the
order of conviction needs to be suspended or stayed so that the
convicted person 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 (See
Rama Narang v. Ramesh Narang : (1995) 2 SCC 513). Such
power should be exercised only in exceptional and rare
circumstances where failure to stay the conviction would lead to
injustice and irreversible consequences (See Ravi Kant S. Patil
v. Sarvabhouma S. Bagali : (2007) 1 SCC 673).
9. While considering the question of suspension of
sentence, the moral conduct of the accused is also relevant (See
State of Tamil Nadu v. A. Jaganathan : AIR 1996 SC
2449).
CRL.A No.309/2018 5 / 12
Crl.M.A.No.01 of 2021
in
10. The petitioner has prayed for suspension of the order
of conviction passed against her by the trial court mainly on the
following ground stated in this application, which reads as
follows:
"The petitioner is getting many job offers in
the flying field since she has vast experience in
that field. Unless and until the conviction is
suspended, she may not be able to get any
employment. Due to the pandemic situation she is
finding it difficult to look after her family."
11. Learned counsel for the petitioner submitted that the
petitioner has lost her job on account of the conviction entered
against her by the trial court and she could not also now get any
other employment for that reason. It is submitted that the
petitioner has got no means of livelihood now.
12. In K.C.Sareen v. C.B.I : AIR 2001 SC 3320, the
question arose whether conviction against a public servant for an
offence under the PC Act can be stayed or suspended on the
ground that the conviction would adversely affect the career
CRL.A No.309/2018 6 / 12
Crl.M.A.No.01 of 2021
in
prospects of the convicted person. The Apex Court summarized
the legal position on this point as follows:
"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
CRL.A No.309/2018 7 / 12
Crl.M.A.No.01 of 2021
in
sequel thereto, is a different matter".
The Apex proceeded further and held as follows:
"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
demoralising 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
CRL.A No.309/2018 8 / 12
Crl.M.A.No.01 of 2021
in
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 any 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".
(emphasis supplied)
The Apex Court ultimately concluded as follows:
"The legal position can be laid down that when
conviction is on 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 inspite of keeping the
sentence of imprisonment in abeyance till the disposal
of the appeal or revision".
(emphasis supplied)
CRL.A No.309/2018 9 / 12
Crl.M.A.No.01 of 2021
in
13. In Union of India v. Atar Singh : (2003) 12 SCC
434, the accused was convicted for the offence under Section 13
of the PC Act. In appeal, the High Court suspended the conviction
on the ground that non-suspension of conviction would entail
removal of the accused public servant from Government service.
The Apex Court set aside the order of the High Court holding that
discretion should not have been exercised by the court in favour
of the accused.
14. In State of Maharashtra v. Gajanan : AIR 2004 SC
1188, the accused was convicted for the offence under Section 7
of the PC Act. In appeal, the High Court suspended the conviction
to facilitate the accused public servant to continue to hold the
civil post. After reiterating the principles laid down in K.C.Sareen
(supra), the Apex Court set aside the order of suspension of
conviction granted by the High Court.
15. In State of Punjab v. Navraj Singh : AIR 2008 SC
2962, the accused was convicted for offences under the PC Act.
An order of suspension of conviction was granted by the High
CRL.A No.309/2018 10 / 12
Crl.M.A.No.01 of 2021
in
Court in favour of the accused on the ground that the conviction
would lead to loss of his employment. After reiterating the
principles laid down in K.C.Sareen (supra), the order of
suspension of conviction granted by the High Court in the appeal
was set aside by the Apex Court.
16. In C.B.I v. M. N. Sharma: AIR 2009 SC 1185, the
accused was convicted for the offences under Sections 7 and
13(1) of the PC Act. The High Court granted order of suspension
of conviction in favour of the accused on the ground that he
would lose his job. The Apex Court set aside the order of the
High Court.
17. In State of Maharashtra v. Balakrishna Dattatrya
Kumbhar : (2012) 12 SCC 384, the accused was convicted for
the offence under Section 13(1)(e) of the PC Act. The High Court
suspended the order of conviction so that the department shall
not precipitate the matter further. The Apex Court set aside the
order of the High Court.
CRL.A No.309/2018 11 / 12
Crl.M.A.No.01 of 2021
in
18. In the light of the dictum laid down by the Apex Court
in K.C.Sareen (supra), which has been consistently followed in
the subsequent decisions, the prayer made by the petitioner for
suspension of the order of conviction, cannot be allowed.
19. Learned counsel for the petitioner submitted that there
was no sufficient evidence to enter a conviction against the
petitioner for the offences alleged against her. Learned counsel
invited the attention of this Court to the deposition of PW1 and
also the relevant passages of the impugned judgment in an
attempt to substantiate the aforesaid plea.
20. The question whether the conviction entered against
the petitioner by the trial court is on sufficient evidence or not
cannot be considered in this application for suspension of the
order of conviction as it would amount to prejudging the merits
of the appeal itself. Sufficiency or otherwise of the evidence
adduced against the petitioner by the prosecution to substantiate
the charges levelled against her cannot be decided in this
application. A similar contention raised by the accused in
CRL.A No.309/2018 12 / 12
Crl.M.A.No.01 of 2021
in
K.C.Sareen (supra) that the conviction was based on slender
reasoning and there was a fair chance of getting acquittal in
appeal was negatived by the Apex Court.
21. The discussion above leads to the conclusion that the
prayer made by the petitioner for suspension of the order of
conviction against her cannot be allowed.
Consequently, the application is dismissed.
(sd/-)
R.NARAYANA PISHARADI, JUDGE
jsr
27-07-2021 /True Copy/ Assistant Registrar
