Orissa High Court
Susant Kumar Sahu vs State Of Odisha (Vig.) on 12 December, 2023
Author: S. K. Sahoo
Bench: S.K. Sahoo
Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 12-Dec-2023 15:44:05
IN THE HIGH COURT OF ORISSA, CUTTACK
I.A. No.1398 of 2023
(Arising out of CRLA No.252 of 2023)
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Susant Kumar Sahu ....... Appellant/Petitioner
-Vrs.-
State of Odisha (Vig.) ....... Respondent/Opp. Party
For Petitioner: - Mr. Devashis Panda
Advocate
For Opp. Party: - Mr. Sanjaya Kumar Das
Standing Counsel (Vig.)
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Order:12.12.2023
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S. K. SAHOO, J. The appellant/petitioner Susant Kumar Sahu who
was the V.L.W. in Gania Block in Nayagarh District has filed this
interim application under section 389 of Cr.P.C. for stay of his
conviction passed by the learned Special Judge, Vigilance,
Bhubaneswar in T.R. Case No.01 of 2011 vide impugned
judgment and order dated 20th February 2023 in convicting him
under section 7 and section 13(2) read with section 13(1)(d) of
the Prevention of Corruption Act, 1988 (hereafter '1988 Act') and
sentencing him to undergo R.I. for a period of one year and to
Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Designation: Junior Stenographer [2]
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 12-Dec-2023 15:44:05
pay a fine of Rs.2,000/-(Rupees two thousand), in default, to
undergo R.I. for a further period of two months for the offence
under section 7 of the 1988 Act and to undergo R.I. for a period
of two years and to pay a fine of Rs.2,000/- (Rupees two
thousand), in default, to undergo R.I. for a further period of two
months for the offence under section 13(2) read with section
13(1)(d) of the 1988 Act and both the sentences were directed
to run concurrently.
2. The prosecution case, in short, is that on
21.12.2009, one Milu Rai lodged a written report before the
Deputy Superintendent of Police, Vigilance, Nayagarh Unit,
Nayagarh addressing to the Superintendent of Police, Vigilance,
Bhubaneswar stating therein that he was an inhabitant of village
Dhobabarai under Gania Block and a sum of Rs.20,000/-(Rupees
twenty thousand) was sanctioned for construction of the platform
of his village well and he was selected as V.L.L. in Palli Sabha of
his village to construct the platform of the said well and in his
name, the work order was issued which was signed by the
Sarpanch seven to eight days prior to the lodging of F.I.R.
Thereafter, the informant approached the petitioner four days
prior to the lodging of F.I.R. who was supposed to issue the work
order but the petitioner demanded a sum of Rs.2,000/- (rupees
two thousand) as bribe to issue the work order. On 21.12.2009
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Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Designation: Junior Stenographer [3]
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 12-Dec-2023 15:44:05
at about 2.00 p.m., when the informant again approached the
petitioner and expressed his inability to pay the demanded
amount, the petitioner refused to issue the work order, however
he reduced the demanded bribe amount from Rs.2,000/- (rupees
two thousand) to Rs.1,800/-(rupees one thousand eight
hundred) and asked the informant to pay the amount by
22.12.2009 to get the work order.
The written report being received by the D.S.P.
(Vigilance), Nayagarh Unit, Nayagarh was sent to the
Superintendent of Police, Vigilance, Bhubaneswar Division,
Bhubaneswar, who directed the Officer in-charge of Vigilance
Police Station, Bhubaneswar Division, Bhubaneswar to register
the case and Shri Srinibasa Padhy (P.W.5), Inspector, Nayagarh
Vigilance Unit was directed to lay a trap and further directed the
Inspector of Police (Vigilance) Ms. Harapriya Naik (P.W.7) to take
up investigation of the case. Accordingly, Bhubaneswar Vigilance
P.S. Case No.52 dated 21.12.2009 was registered under section
7 of the 1988 Act against the petitioner.
P.W.5 made a preparation to lay the trap on
22.12.2009, issued necessary instruction to the informant to
come ready with the bribe money of Rs.1,800/-(rupees one
thousand eight hundred) on that day and basing upon the
requisition of D.S.P., Vigilance, the witnesses, namely, Naran
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Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Designation: Junior Stenographer [4]
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 12-Dec-2023 15:44:05
Murmu (P.W.2), Asst. Engineer and Jagdish Prasad Majhi
(P.W.3), Junior Engineer reported before him and thereafter he
along with the other witnesses assembled in the office room of
D.S.P., Vigilance, Nayagarh where the informant was introduced
by P.W.5 to the team members. The informant produced a sum
of Rs.1,800/- (rupees one thousand eight hundred) having three
numbers of 500 rupees denominations and three numbers of 100
rupees denominations before P.W.5. The constable P.K. Acharya
showed a demonstration during which he prepared sodium
carbonate solution and dipped his fingers inside the solution, but
the colour of the solution remains unchanged. He thereafter,
treated the currency notes with phenolphthalein powder and
handed over the same to the informant inside a four-fold paper
with instruction to pay the same to the petitioner only on
demand. The constable thereafter dipped his fingers inside the
prepared solution and the colour of the solution turned pink. The
solution was preserved in a glass bottle duly labeled and sealed.
P.W.2 was selected to accompany the informant to the office of
the petitioner, to overhear the conversation between the
informant and the petitioner and to relay the signal by rubbing
his forehead after the transaction of passing the bribe money. A
preparation report was duly drafted by P.W.5 marked as Ext.2.
On the same day at about 4.25 p.m., they reached at Gania
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Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Designation: Junior Stenographer [5]
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 12-Dec-2023 15:44:05
Block and the informant and the accompanying witness (P.W.2)
went inside the Gania Block office by walking and other team
members followed them and took positions inside the campus of
the Block. At about 5.00 p.m., P.W.5 received the signal from
P.W.2 and immediately, they proceeded to the computer room of
I.C.D.S. building and found the informant and the petitioner
available in room. The informant identified the petitioner to
P.W.5 and clarified that he had paid the bribe amount to the
petitioner on demand. Thereafter, P.W.5 collected the hand wash
of the petitioner in sodium carbonate solution which turned pink
in two separate glass bottles being duly labeled and sealed. On
instruction, the petitioner handed over the tainted money to
P.W.3 by brining it from his right side pant pocket and then
P.W.3 compared the number and denomination of the currency
notes with that mentioned in the copy of preparation report and
found it tallied. Both hand wash of P.W.3 which turned pink
taken in prepared solution was collected and the solution was
preserved in separate glass bottles duly labeled and sealed. The
right pant packet wash of the petitioner which also turned pink
was also collected and the solution was preserved in separate
glass bottles duly labeled and sealed. P.W.5 also sealed the
collected wash, tainted money, four fold paper, copy of the
preparation report with necessary endorsement by P.W.3 and the
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Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Designation: Junior Stenographer [6]
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 12-Dec-2023 15:44:05
connected file regarding issuance of work order in respect of
platform of a well. Then P.W.5 collected the impression of seal
on a paper and left the seal on zima of P.W.3 and prepared the
spot map marked as Ext.16 and also the detection report
(Ext.10) at the spot and arrested the petitioner and
subsequently, handed over the seized materials, connected
documents and the petitioner to P.W.7 for further investigation.
The Investigating Officer (P.W.7) took charge of
investigation of the case from P.W.5 as per the direction of S.P.,
Vigilance, Bhubaneswar, Division, examined the witnesses and
forwarded the petitioner to the Court. On 11.01.2010, she
forwarded the seized exhibits to the Director, S.F.S.L.,
Rasulgarh, Bhubaneswar for its chemical examination. On her
prayer before the Court, the statements of the informant and
overhearing witness were recorded under section 164 Cr.P.C. On
17.03.2010, she sent the requisition to Sarpanch, Chhamundia
G.P. of Gania Block to produce the proceeding of the Palli Sabha
of village Dhobabarai in which it was decided that the village well
platform would be done by the informant. She received the
chemical examination report from S.F.S.L., Rasulgarh on
22.03.2010 in which it was opined by the examiner that
phenolphthalein was detected in sodium carbonate solution
contained in the glass bottle marked as Ext. R, L, P, W and D. On
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Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Designation: Junior Stenographer [7]
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 12-Dec-2023 15:44:05
18.06.2010, she seized the Palli Sabha book of village
Dhobabarai and the resolution book of Chhamundi G.P. from one
Nalini Jani marked as Ext.18 and the Palli Sabha khata marked
as Ext.19. On 08.07.2010, she seized the personal original file of
the petitioner along with its certified copy, original posting order
of the petitioner and duty assignment order of the B.D.O on the
strength of seizure list marked as Ext.14. On 19.10.2010, she
received the sanction order of Collector, Nayagarh vide letter
dated 05.10.2010 marked as Ext.20 (with objection). On
completion of investigation, she submitted the charge sheet
against the petitioner under section 7 and section 13(2) read
with section 13(1)(d) of the 1988 Act to stand his trial in the
court of law.
3. On assessing the oral as well as documentary
evidence available on record, the learned trial Court came to
hold that the defence has failed to rebut the presumption under
section 20 of the P.C. Act, even at the touch stone of
preponderance of probability. It was further held that the
prosecution has also proved the original sanction order against
the petitioner vide Ext.20 and the same further fortifies that all
the material documents were produced before the sanctioning
authority and that after going through all the documents, the
sanction order has been passed by the then Collector, Nayagarh.
I.A. No.1398 of 2023
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Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Designation: Junior Stenographer [8]
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 12-Dec-2023 15:44:05
It was further held that when the sanction order has been proved
and it gives detailed account of discussion with the I.O. (P.W.7)
which is corroborated by the ocular testimony of the I.O. and
when no infirmity has been brought out on record by the defence
in the process of the grant of sanction, mere non-examination of
the sanctioning authority cannot vitiate the prosecution against
the petitioner. It was held that the prosecution has successfully
proved the sanction order against the petitioner as per true
norms and spirit of section 19(1) of the P.C. Act, 1988,
aaccordingly, the learned trial Court came to the conclusion that
the offences under section 7 and section 13(2) read with section
13(1)(d) of the 1988 Act has been committed by the petitioner
and the petitioner was found guilty of such charges.
4. Mr. Devashis Panda, learned counsel appearing for
the petitioner contended that the learned trial Court has illegally
convicted the petitioner under section 7 and section 13(2) read
with section 13(1)(d) of the 1988 Act. He further argued that the
learned trial Court in the impugned judgment has picked and
chosen only the portion of evidence of the prosecution to be
utilized against the petitioner and discarded the rest evidence in
favour of the petitioner without any justifiable reason. It was
further asserted that the deposition of the witnesses of the
prosecution during the cross-examination was not taken into
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Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Designation: Junior Stenographer [9]
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 12-Dec-2023 15:44:05
account. He further argued that the informant died for which he
could not be examined during trial and the overhearing witness
(P.W.2) had deposed falsely that he could see the transaction
and heard the conversation as it was not possible on his part
either to see or to overhear the alleged demand from where he
was standing. A spot map was prepared by the trap laying officer
at the spot itself, where the position of the witness (P.W.2) was
near the store room in an open field and the said store room was
in between the position of the witness and the place of
occurrence. He further asserted that despite being conscious of
the fact that P.W.2 neither could see nor could hear while the
transaction was done still it presented a false set of facts before
the Court to criminally implicate the appellant. He further argued
that had the learned trial Court considered the evidence available
in favour of the petitioner and not ignored the same, the
impugned order of conviction would not have come into
existence. The finding recorded by the learned trial Court is out
and out perverse and without any application of its judicial mind
and therefore, the impugned judgment is bad in the eye of law.
He further submitted that the apprehension of losing the job may
not be the sole criteria for granting stay of conviction, but the
exceptional and special circumstances which exist in the facts of
the case sufficiently indicate that the present litigation is luxury
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Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Designation: Junior Stenographer [10]
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 12-Dec-2023 15:44:05
litigation on the part of the prosecution at the cost of the
petitioner. Therefore, when the prosecution has not proved the
guilt of the petitioner to the hilt, this Court may be pleased to
pass an order of stay of conviction. To substantiate his stand,
learned counsel has relied upon in the case of Neeraj Dutta -
Vrs- State (Govt. of N.C.T. Delhi) reported in 2023
Supreme Court OnLine SC 280 wherein it is held as follows:
"12. The referred question was answered in
paragraph 76 of the aforesaid judgment, which
reads thus:
76. Accordingly, the question referred for
consideration of this Constitution Bench is
answered as under:
In the absence of evidence of the informant
(direct/primary, oral/documentary evidence), it
is permissible to draw an inferential deduction
of culpability/guilt of a public servant Under
Section 7 and Section 13(1)(d) read with
Section 13(2) of the Act based on other
evidence adduced by the prosecution."
Xxx Xxx Xxx Xxx
16. Thus, the demand for gratification and its
acceptance must be proved beyond a
reasonable doubt.
17. Section 7, as existed prior to 26th July
2018, was different from the present Section 7.
The unamended Section 7 which is applicable in
the present case, specifically refers to "any
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Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Designation: Junior Stenographer [11]
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 12-Dec-2023 15:44:05
gratification". The substituted Section 7 does
not use the word "gratification", but it uses a
wider term "undue advantage". When the
allegation is of demand of gratification and
acceptance thereof by the Accused, it must be
as a motive or reward for doing or forbearing to
do any official act. The fact that the demand
and acceptance of gratification were for motive
or reward as provided in Section 7 can be
proved by invoking the presumption Under
Section 20 provided the basic allegations of the
demand and acceptance are proved. In this
case, we are also concerned with the offence
punishable Under Clauses (i) and (ii) Section
13(1)(d) which is punishable Under Section
13(2) of the PC Act. Clause (d) of Sub-section
(1) of Section 13, which existed on the statute
book prior to the amendment of 26th July
2018, has been quoted earlier. On a plain
reading of Clauses (i) and (ii) of Section
13(1)(d), it is apparent that proof of
acceptance of illegal gratification will be
necessary to prove the offences Under Clauses
(i) and (ii) of Section 13(1)(d). In view of what
is laid down by the Constitution Bench, in a
given case, the demand and acceptance of
illegal gratification by a public servant can be
proved by circumstantial evidence in the
absence of direct oral or documentary
evidence. While answering the referred
question, the Constitution Bench has observed
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Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Designation: Junior Stenographer [12]
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 12-Dec-2023 15:44:05
that it is permissible to draw an inferential
deduction of culpability and/or guilt of the
public servant for the offences punishable
under section 7 and 13(1)(d) read with section
13(2) of the PC Act. The conclusion is that in
absence of direct evidence, the demand and/or
acceptance can always be proved by other
evidence such as circumstantial evidence."
Mr. Sanjaya Kumar Das, learned Standing Counsel
for the Vigilance Department appearing for the opposite party
vehemently opposed the prayer for stay of conviction and also
filed his objection to such petition. It is contended that the
learned trial Court after going though the evidence on record in
detail has rightly found the petitioner guilty and since stay of
conviction should be exercised only in exceptional circumstances
and in rare cases where failure to stay conviction would lead to
injustice and irreversible consequences, nothing having been
pointed out by the learned counsel for the petitioner in that
respect, no favourable order should be passed in his favour. It is
further contended that besides getting legal remuneration,
demanding and accepting bribe has come a 'MANTRA' in the
public institutions by the public servants. It has become a
contagious disease in the society, which needs social reforms
and judicial inference to get rid of the same. He further
submitted that so far as the contentions of suspension/stay of
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Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Designation: Junior Stenographer [13]
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 12-Dec-2023 15:44:05
conviction and sentence of the petitioner is concerned, the
interim application is liable to be dismissed because of his
conviction and sentence for committing the offence under the
Prevention of Corruption Act and being held to be a corrupt
public servant by accepting illegal gratification as a 'motive'. He
further submitted that as the law is equal to all and to be judged
impartially, the petitioner does not stand in a different footing to
be considered in any special circumstances, when he has been
found guilty for adopting corruption by thinking it to be his
official act. He further contended that the petitioner ought to
have thought of the consequences regarding demand and
acceptance of bribe money against discharging the official duties.
He also contended that in the event, the petitioner succeeds in
the criminal appeal preferred by him before this Court, he would
be at liberty to claim all of his consequential benefits from the
Government and in view of the above, the I.A. should be
dismissed.
5. First, let me deal with the ambit and scope of section
389(1) of Cr.P.C. relating to stay of judgment and order of
conviction by the appellate Court as were placed by the learned
Standing Counsel for the vigilance department.
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Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Designation: Junior Stenographer [14]
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 12-Dec-2023 15:44:05
In the case of K.C. Sareen -Vrs.- C.B.I.,
Chandigarh reported in (2001) 6 Supreme Court Cases
584, it is held as follows:-
"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 tall 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 different matter.
I.A. No.1398 of 2023
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Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Designation: Junior Stenographer [15]
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 12-Dec-2023 15:44:05
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 functions 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 policy.
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 Court 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
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Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Designation: Junior Stenographer [16]
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 12-Dec-2023 15:44:05
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 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."
In the case of State of Maharastra through C.B.I.
-Vrs.- Balakrishna Dattatrya Kumbhar reported in (2012)
53 Orissa Criminal Reports (SC) 1233, it is held as follows:-
"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
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Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Designation: Junior Stenographer [17]
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 12-Dec-2023 15:44:05
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.
xx xx xx xx xx
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. The
submission made on behalf of the Respondent,
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Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Designation: Junior Stenographer [18]
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 12-Dec-2023 15:44:05
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."
In the case of State of Punjab -Vrs.- Deepak
Mattu reported in A.I.R. 2008 Supreme Court 35, it is held
as follows:-
"7. While passing the said Order, the High
Court did not assign any special reasons.
Possible delay in disposal of the appeal and
there are arguable points by itself may not be
sufficient to grant suspension of a sentence. The
High Court while passing the said Order merely
noticed some points which could be raised in the
appeal. The grounds so taken do not suggest
that the Respondent was proceeded against by
the State, mala fide or any bad faith...."
In the case of Pruthwiraj Lenka -Vrs.- State of
Odisha (Vigilance) reported in (2022) 85 Orissa Criminal
Reports 667, it is held that law is well settled that possible
delay in disposal of the appeal and/or presence of arguable
points in the appeal by itself may not be sufficient in staying the
order of conviction of the trial Court without assigning any
special reasons. An order granting stay of conviction is not the
Rule but is an exception to be resorted to in rare cases
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Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Designation: Junior Stenographer [19]
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 12-Dec-2023 15:44:05
depending upon the facts of a case. Where the execution of the
sentence is stayed, the conviction continues to operate. But
where the conviction itself is stayed, the effect is that the
conviction will not be operative from the date of stay. As order of
stay, of course, does not render the conviction non-existent, but
only non-operative.
In the case of Om Prakash Sahani -Vrs.- Jai
Shankar Chaudhary and another etc. reported in (2023)
91 Orissa Criminal Reports (SC) 84, it is held as follows:-
"33....The Appellate Court should not
reappreciate the evidence at the stage of section
389 of the Cr.P.C. and try to pick up few lacunas
or loopholes here or there in the case of the
prosecution. Such would not be a correct
approach.
34. In the case on hand, what the High Court
has done is something impermissible. High Court
has gone into the issues like political rivalry,
delay in lodging the F.I.R., some over-writings in
the First Information Report etc. All these
aspect, will have to be looked into at the time of
the final hearing of the appeals filed by the
convicts. Upon cursory scanning of the evidence
on record, we are unable to agree with the
contentions coming from the learned Senior
Counsel for the convicts that, either there is
absolutely no case against the convicts or that
the evidence against them is so weak and feeble
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Digitally Signed
Signed by: SIPUN BEHERA
Designation: Junior Stenographer [20]
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 12-Dec-2023 15:44:05
in nature, that, ultimately in all probabilities the
proceedings would terminate in their favour....."
In the case of A.B. Bhaskara Rao -Vrs.- Inspector
of Police, CBI, Visakhapatnam reported in A.I.R. 2011
Supreme Court 3845, it is held as follows:-
"19. From the analysis of the above decisions
and the concerned provisions with which we are
concerned, the following principles emerge:
a) When the Court issues notice confining to
particular aspect/sentence, arguments will be
heard only to that extent unless some
extraordinary circumstance/material is shown to
the Court for arguing the matter on all aspects.
b) Long delay in disposal of appeal or any other
factor may not be a ground for reduction of
sentence, particularly, when the statute
prescribes minimum sentence. In other cases
where no such minimum sentence is prescribed,
it is open to the Court to consider the delay and
its effect and the ultimate decision.
c) In a case of corruption by public servant,
quantum of amount is immaterial. Ultimately it
depends upon the conduct of the delinquent and
the proof regarding demand and acceptance
established by the prosecution.
d) Merely because the delinquent lost his job
due to conviction under the Act may not be a
mitigating circumstance for reduction of
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Signed by: SIPUN BEHERA
Designation: Junior Stenographer [21]
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 12-Dec-2023 15:44:05
sentence, particularly, when the Statute
prescribes minimum sentence."
The appreciation of evidence in detail at the final
stage of hearing of criminal appeal is not to be adopted at the
stage of dealing with interim application for stay of judgment and
order of conviction inasmuch any finding on the merits of the
case by way of appreciation of evidence at the stage of
consideration of interim application for stay of conviction is likely
to prejudice either of the parties.
There is no doubt that in view of settled position of
law, the appellant has to make out a rare and exceptional case
for the grant of stay against conviction under section 389 of
Cr.P.C. There must be special and compelling circumstances in
justification for the grant of such stay against conviction. There
should be irreversible consequences leading to injustice and
irretrievable damages in the event of non-grant of stay against
conviction. The impugned judgment of conviction should be
based on no evidence or against the weight of evidence, which
must prima facie appear on the face of it without conducting a
detailed analysis into the merit of the case. Possible delay in
disposal of the appeal and that there are arguable points by itself
may not be sufficient to grant stay of conviction.
I.A. No.1398 of 2023
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Digitally Signed
Signed by: SIPUN BEHERA
Designation: Junior Stenographer [22]
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 12-Dec-2023 15:44:05
6. In view of the ratio laid down in the aforesaid
decisions and keeping in view the submissions raised by the
learned counsel for the respective parties, it is to be seen
whether the petitioner has made out a very rare and exceptional
case for grant of stay of order of conviction. What the evil that is
likely to befall on the petitioner, if the order of conviction is not
stayed? Whether failure to stay the order of conviction would
lead to injustice and irreversible consequences?
There is no dispute that the informant Milu Rai could
not be examined as he died during trial. Therefore, there is no
evidence relating to the demand stated to have been made to
the informant four days prior to the lodging of F.I.R. and even on
the date of lodging F.I.R. as stated in the F.I.R., which is not a
substantive piece of evidence and its utility in evidence is very
much restricted by law and it can only be used corroborate the
statement of the maker under section 157 of Evidence Act, or to
contradict it under section 145 of the Evidence Act.
The most important witness to prove the demand
and acceptable of the bribe money is none else than P.W.2.
P.W.2 has not only stated about the preparation proceeding in
the office of D.S.P., Vigilance Unit, Nayagarh but also stated that
he accompanied the informant to the Block Office, Gania where
he noticed about the demand of money by the petitioner to the
I.A. No.1398 of 2023
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Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Designation: Junior Stenographer [23]
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 12-Dec-2023 15:44:05
informant, the informant handing over the tainted money to the
petitioner which was counted by the petitioner and then keeping
it in his pant pocket. He also stated about the recovery of the
money from the possession of the petitioner, comparison of the
denomination of notes and hand washes of the petitioner being
taken in sodium carbonate solution changing colour to pink.
Whether in view of the position of P.W.2 as shown in the spot
map (Ext.16) prepared by P.W.5, he could notice the demand
and acceptance of bribe money by the petitioner from the
informant is to be adjudicated at the final stage of hearing of the
criminal appeal. The evidence of P.W.2, P.W.3 and P.W.5 proves
the stand of the prosecution that the petitioner had demanded
and accepted the bribe money of Rs.1,800/- (rupees one
thousand eight hundred) from the deceased-informant and the
evidence of Scientific Officer (P.W.1) with Ext.1 (C.E. report)
fortified the same as held by the learned trial Court. The stand
taken by the petitioner that the informant have Rs.1,800/-
(rupees one thousand eight hundred) to him which he had taken
as hand loan from him in the year 2009 has not been accepted
by the learned trial Court and the evidence of D.W.1 was found
to be not credible. The sanction order against the petitioner was
found to be as per true norms and spirit of section 19(1) of the
1988 Act.
I.A. No.1398 of 2023
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Digitally Signed
Signed by: SIPUN BEHERA
Designation: Junior Stenographer [24]
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 12-Dec-2023 15:44:05
7. After carefully and meticulously analyzing the finding
of the learned trial Court, the submissi ons made by the
learned counsel for the respective parties and the evidence on
record, I am of the humble view that at this stage, it cannot be
said that it is a case of no evidence against the petitioner.
Whether the evidence available on record would be sufficient to
uphold the impugned judgment and order of conviction of the
petitioner or on the basis of points raised by the learned counsel
for the petitioner, benefit of doubt is to be extended to the
petitioner is to be adjudicated at the final stage when the appeal
would be heard on merit. Giving any finding on the merits of the
case is likely to cause prejudice to either of the parties. This
Court will certainly have a duty to make deeper scrutiny of the
evidence and decide the acceptability or creditworthiness of the
evidence of witnesses at the final stage of hearing of the appeal
on merit. At this stage, reappreciation of evidence by conducting
detailed analysis and trying to pick up lacunas or loopholes in the
case of the prosecution is not permissible. No extraordinary
circumstance/material is shown to this Court for granting the
desired relief to the petitioner. The fact that the petitioner has
been dismissed from the government service by the order of the
Collector & Disciplinary Authority, Nayagarh and that he is likely
to face financial hardship and there is no chance of early hearing
I.A. No.1398 of 2023
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Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Designation: Junior Stenographer [25]
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 12-Dec-2023 15:44:05
of the appeal are not the grounds for granting the reliefs sought
for.
Therefore, I am of the humble view that for the
limited purpose of ascertaining whether stay of order of
conviction be granted or not, I find that the petitioner has failed
to make out a very exceptional case or special reasons for
keeping the conviction in abeyance and as such, in the facts and
circumstances of the case, the relief sought for by the petitioner
for staying the order of conviction cannot be granted.
8. Accordingly, the interim application being devoid of
merits, stands dismissed.
By way of abundant caution, I would like to place it
on record that whatever has been stated hereinabove in this
order has been so said only for the purpose of disposing of the
prayer for staying the order of conviction of the petitioner.
Nothing contained in this order shall be construed as expression
of a final opinion on any of the issues of fact or law arising for
decision in the case which shall naturally have to be done at the
final stage of the hearing of the criminal appeal on merit.
Urgent certified copy be granted on proper
application.
..............................
S. K. Sahoo, J.
Orissa High Court, Cuttack
The 12th December 2023/Sipun
