ORDER
R.K. Merathia, J.
1. Appellant has filed this application under Section 389(1) and (2) of the Code of Criminal Procedure praying for suspending the order of conviction during the pendency of appeal.
2. The appellant was apprehended by the CBI Officers in a trap, demanding and accepting illegal gratification amounting to Rs. 200/-. He has been found guilty and has been convicted for the offence under Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act and has been sentenced by the trial Court. The said judgment is challenged in the present appeal. This appeal was admitted and the provisional bail granted to the appellant by the trial Court was confirmed on 20.2.2004.
3. The appellant now prays for suspending the order of conviction. It is stated that the appellant, during the pendency of this appeal, had received memorandum issued by the concerned department whereby he was asked to make representation on the major penalty proposed to be imposed on him i.e. the compulsory retirement as he has been convicted in the present case. Pursuant to the said memorandum, the appellant filed his representation stating inter alia that he is innocent and the present appeal is pending in this Court against the judgment of conviction and sentence. It is further stated that the department without properly considering the said representation, vide order dated 17.9.2004 imposed major penalty of compulsory retirement on the appellant with immediate effect.
4. Mr. P.P.N. Roy, learned counsel for the appellant submitted that there are every chances of success of this appeal, that the conviction can be suspended in the exceptional cases, the case of the appellant comes under the purview of exceptional case, in any event, appellant has suffered this prosecution from 1995 on the charge for receiving a meager sum of Rs. 200/-as illegal gratification. It is lastly submitted that the appellant is at the verge of retirement. He will be reaching the age of superannuation on 30.9.2005.’At this stage the disciplinary authority has imposed major penalty of compulsory retirement on the appellant on the ground of the judgment of conviction which is under challenge in this appeal.
5. Learned counsel for the appellant relied on a judgment of Hon’ble Supreme Court reported in 2003 (8) Supreme 816 State of Maharashtra v. Gajanan and Anr., and submitted that the Court has got power in exceptional circumstances to stay the order of conviction under Section 389(1) of the Code of Criminal Procedure.
6. In this said case of Gajanan (Supra) the Supreme Court set aside that order of the High Court, by which the conviction under Section 7 of the Prevention of Corruption Act was stayed by the High Court. Para 4 of the said judgment reads as follows:-
“In the said judgment of K.C. Sareen (supra), this Court held that it is only in very exceptional cases that the Court should exercise such power of stay in matters arising out of the Act. The High Court has in the impugned order nowhere pointed out what is the exceptional fact which in its opinion required it to stay the conviction. The High Court also failed to note the direction of this Court that it has a duty to look at all aspects including ramification of keeping such conviction in abeyance. The High Court, in our opinion, has not taken into consideration any of the above factors while staying the conviction. It should also be noted that the view expressed by this Court in K.C. Sareen’s case (supra) was subsequently approved followed by the judgment of this Court in Union of India v. Atar Singh and Anr., 2002 (1)East Cr C 211 (SC) : JT 2001(10) SC 212).”
7. On the basis of the said observations, learned counsel for the appellant submitted that this Court has got power in exceptional cases to stay the conviction and the present case is an exceptional case.
8. Mr. Rajesh Kumar, learned counsel for the CBI relied on a Division Bench order of this Court dated 22.9.2004, passed in Cr. Appeal No. 241 of 2004, Kirtan Mahto v. State of Jharkhand, holding that “the order of conviction is not executable one and thus the question of suspending conviction does not arise at all and it is neither the spirit nor the mandate of the legislature as contained under Section 389 of the Cr PC. Conviction does remain in force till it is set aside in appeal or in revision.” He also relied on the order dated 23.4.2004 of learned Single Judge of this Court rendered in Cr. Appeal No. 1771 of 2003, R.R. Singha v. The State of Jharkhand. He further relied on the judgment of Hon’ble Supreme Court reported in 2001 (3) East Cr C 50 (SC) : (2001) 6 SCC 584 K.C. Sareen v. CBI Chandigarh, Paras 12 and 13 of the said judgment reads as follows:-
“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 griping 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 is 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 a 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 order of conviction, it is public interest which suffers and sometimes, even irreparably. When a public servant who is convicted to 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 institution besides demoralizing the other honest public servants who would either be the colleagues or subordinates of the convicted persons. If honest public servants are compelled to take orders from proclaimed corrupt officers on account of the suspension of the conviction, the fallout would be one of shaking the system itself. Hence it necessary that the Court should not aid the public servant who stands convicted for corruption charges to hold only (sic) 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.
13. 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 inspite of keeping the sentence of imprisonment in abeyance till the disposal of the appeal or revision.”
9. In the facts and circumstances and in view of the legal position, noticed above, I am not inclined to stay the conviction of the appellant during the pendency of this appeal. The appellant was apprehended in a trap. He has been found guilty by the trial Court for demanding and receiving illegal gratification. The grounds that the amount involved is only Rs, 200/or that the appellant has been facing this trial from 1995 or that at his fag end of service, he has been awarded major penalty on the basis of the present conviction, are not sufficient for staying his conviction. The Hon’ble Supreme Court has clearly held that in such cases the conviction should not be stayed. However, the appellant may move before Hon’ble Chief Justice of fixing an early date of hearing of the appeal.
10. In the result, the interlocutory application is rejected.