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Judgment
S.M. Sidickk, J.—The application in Crl.M.P. No. 4267 of 1997 in this Crl. Appeal No. 616/97 was filed by the petitioners-appellants 1 and 3 u/s 482 of Crl.P.C. to pass an order staying the operation of the Judgment of conviction passed by the Special Judge-Cum-First Additional Sessions Judge-Cum-Chief Judicial Magistrate at Salem in C.C. No. 194/89 dated 31.7.1997 pending disposal of the Criminal Appeal No. 616/97 on the file of the High Court of Madras. An ex parte order of stay of the operation of the judgment of conviction and sentence dated 31.7.1997 in C.C. No. 194/89 was passed by this Court following the decision of N.V. Balasubramaniam, J. of this Court reported in S. Sundari Vs. The General Manager, Industrial Relations Section, and at the end of para 6). The learned Judge in the decision reported in at page 922 has referred to a decision of the Andhra Pradesh High Court reported in V. Sundararami Reddi Vs. State, and further made some observation stating that the order of conviction is a part of the Judgment and when the Judgment is stayed, the conviction portion of the Judgment is also suspended during the pendency of the appeal.
Challenging this order dated 10.9.1997 passed by me in Crl.M.P. No. 4267 of 1997, the State represented by the Inspector of Police, Vigilance and Anti Corruption, Salem has filed the application in Crl.M.P. No. 8211/98 to vacate the stay granted in Crl.M.P. No. 4267/97 dated 10.9.1997 staying the operation of the Judgment of conviction passed against the appellants 1 and 3, who are the petitioners in Crl.M.P. No. 4267/97.
The point that arises for determination in these two petitions is as to whether the order of staying the operation of the Judgment of conviction granted in Crl.M.P. No. 4267/97 is liable to be vacated and as to whether the application in Crl.M.P. No. 4267/97 has to be dismissed.
Point: Before considering the respective contentions of both parties, it is relevant to note that the petitioners in Crl.M.P. No. 4267/97 viz., the appellants 1 and 3 have also filed another application u/s 482 of Crl.P.C. in Crl.M.P. No. 3954 of 1997 to suspend the order of sentence alone dated 31.7.1997 made in C.C. No. 194/89, and in the said application in Crl.M.P. No. 3954/97 I have passed an order staying that the sentence passed by the Special Judge-Cum-First Additional Sessions Judge-Cum-Chief Judicial Magistrate, Salem in C.C. No. 194/89 dated 31.7.1997 is suspended and the petitioners shall be enlarged on bail, on each of them executing a bond for a sum of Rs. 3,000/- with the sureties each for a like sum to the satisfaction of the Special Judge-Cum-First Additional Sessions Judge-Cum-Chief Judicial Magistrate, Salem. Apart from this order in the application in Crl.M.P. No. 3954/97 the petitioners, who are the appellants 1 and 3, have filed yet another application in Crl.M.P. No. 4267/97, wherein the operation of Judgment of conviction in C.C. No. 194/89 was also stayed pending disposal of the Criminal Appeal in the light of the decision of S. Sundari Vs. The General Manager, Industrial Relations Section, Now this Order in Crl.M.P. No. 4267/97 is being challenged in Crl.M.P. No. 8211/98.
Two submissions were made on behalf of the petitioners/appellants 1 and 3, who are the accused 1 and 3 in C.C.194/89 by the learned Senior Counsel Mr. R. Gandhi. According to him, the first submission is that the judgment of the Supreme Court reported in State of Tamil Nadu Vs. A. Jaganathan, which was brought to my notice by the learned Public Prosecutor on behalf of the Investigating Agency, was one rendered in a Criminal Revision where two Courts have already considered the materials and came to the conclusions about the conviction, and on the contrary in the present case, Criminal Appeal No. 616/97 was filed as against the Judgment of conviction of the trial Court, and so the decision reported in State of Tamil Nadu Vs. A. Jaganathan, may not be directly applicable to the facts of the present case. The above contention was countenanced by the learned Public Prosecutor Mr. R. Shanmughasundaram by stating that the decision of the Supreme Court reported in State of Tamil Nadu Vs. A. Jaganathan, is not only a Judgment rendered in Criminal Revision but also in respect of Criminal Appeals, and therefore the principles laid down therein will squarely apply to the facts of the present case also. On a perusal of the reported judgment in State of Tamil Nadu Vs. A. Jaganathan, I find at the bottom of page 329 that the Supreme Court has rendered the decision not only in Criminal Revision Case No. 23 of 1994 but also in Crl. Appeal Nos. 585 of 1995, 530 of 1994 and 589 of 1993. Therefore the contention of the learned Senior Counsel Mr. R. Gandhi appearing for the petitioners/appellants 1 and 3 in this case that this decision of the Supreme Court reported in State of Tamil Nadu Vs. A. Jaganathan, was rendered in Criminal Revision Case, which arose on a narrow compass, is not entitled to any acceptance.
The other submission made by the Senior Counsel Mr. R. Gandhi is that one of the petitioners viz., the appellants 1 and 3 herein has been superannuated, and the other appellant is in service, and if the suspension of the operation of the judgment of conviction is vacated, then damage would be caused by initiating disciplinary proceedings or departmental proceedings as against that appellant for dismissing him from service, which could not be undone ultimately if the Criminal appeal filed by him was allowed setting the conviction, and in the event of this success in the Criminal appeal, he cannot be reinstated in service after his retirement, and in those circumstances the principles laid down by the Supreme Court at page 527 in the decision reported in Rama Narang Vs. Ramesh Narang and Others, must be applied. It was laid down in para 19 of the said decision in Rama Narang Vs. Ramesh Narang and Others, as follows:
...Therefore when an appeal is preferred u/s 374 of Code, the appeal is against both the conviction and sentence, and therefore we see no reason to place a narrow interpretation on Section 389(1) of the Code not to extend it to an order of conviction, although that issue in the instant case recedes to the background because High Courts can exercise inherent jurisdiction u/s 482 of the Code, if the power was not to be found in Section 389(1) of the Code. We are therefore of the opinion that the Division Bench of the High Court of Bombay was not right in holding that the Delhi High Court could not have exercised jurisdiction u/s 482 of the Code if it was confronted with a situation of there being no other provision in the Code for staying the operation of the order of conviction. 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 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; 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....
Therefore, according to the learned Senior Counsel Mr. R. Gandhi, this is also a fit case where the order of conviction need to be suspended or stayed because otherwise the damage done cannot be undone.
The learned Public Prosecutor Mr. R. Shanmughasundaram repudiated the above contentions and stated that though the Supreme Court in the decision reported in Rama Narang Vs. Ramesh Narang and Others, has observed that in a fit case if the High Court feels satisfied that the order of conviction needs to be stayed or suspended, this is not a fit case to exercise that power because in the present case, the petitioners/appellants 1 and 3 were convicted for the offences under the provisions of Prevention of Corruption Act.
On a perusal of the Judgment of the Supreme Court reported in Rama Narang Vs. Ramesh Narang and Others, it is found that it was a case, where the accused incurred disqualification of Managing Director of a Company u/s 267(c) of the Companies Act, 1956, and in such circumstances the Supreme Court in the decision reported in Rama Narang Vs. Ramesh Narang and Others, stated that in appropriate cases the High Court in appeal on being satisfied about the need for suspending the order of conviction, can grant interim stay, But here is a case where the petitioners/appellants 1 and 3 were convicted for 2 years RI for the offence u/s 7 of the Prevention of Corruption Act and also u/s 13(1)(d) read with 13(2) convicted them for 2 years RI and to pay a fine of Rs. 500/- each under Prevention of Corruption Act. In similar situation the Supreme Court in the decision reported in State of Tamil Nadu Vs. A. Jaganathan, laid down as follows:-
...This apart, the High Court though made an observation but did not consider at all the moral conduct of the respondents in as much as respondent Jagannathan, who was the Police Inspector attached to Erode Police Station, has been convicted under Sections 392, 218 and 466 I.P.C. while the other respondents who are also public servants have been convicted under the provisions of Prevention of Corruption Act. In such a case the discretionary power to suspend the conviction either under Sections 389(1) or u/s 482 of Crl.P.C. should not have been exercised. The orders impugned thus cannot be sustained.
In these circumstances this is not a fit case, where the conviction was given under the provisions of Prevention of Corruption Act, to exercise the discretion to suspend the conviction either u/s 389(1) or u/s 482 of Crl.P.C. Therefore I am of the view that this is not a fit case to suspend the Judgment of conviction. Hence I hold that the application in Crl.M.P. No. 8211/98 has to be allowed, and the order of staying the conviction granted in Crl.M.P. No. 4267/97 on 10.9.1997 has to be vacated, and the application in Crl.M.P. No. 4267/97 has to be dismissed in the light of the circumstances and facts of this case, and consequently I answer this point as against the petitioners/appellants 1 and 3/accused 1 and 3 and in favour of the Respondent/Complainant.
In the result the order of stay granted in Crl.M.P. No. 4267/97 dated 10.9.1997, staying the operation of the Judgment of conviction is hereby vacated and the application in Crl.M.P. No. 8211/98 is allowed. The application in Crl.M.P. No. 4267/97 shall stand dismissed.