ORDER
Mahmood Ali Kham, J.
1. This criminal revision petition is directed against an order of an Additional Sessions Judge dated 22.10.2002 whereby he declined to suspend the order of conviction of the petitioner in an appeal preferred by him against an order of a Metropolitan Magistrate.
2. The petitioner is found guilty and has been convicted by an Additional Chief Metropolitan Magistrate to undergo rigorous imprisonment for one year and to pay a fine of Rs. 10,000/- for offence under Section 120B, IPC read with Section 120B, IPC, to undergo rigorous imprisonment for one year and to pay a fine of Rs. 5,000/- for offence under Sections 511 and 420 read with Section 120B, IPC. He has further been convicted to undergo rigorous imprisonment for two years and to pay a fine of Rs. 10,000/- for offence under Section 380, IPC read with Section 120B, IPC and he has also been convicted to undergo rigorous imprisonment for one year and to pay a fine of Rs. 5,000/- for offence under Section 468, IPC. All these sentences were to run concurrently.
3. The petitioner filed an appeal against this order. Hissentence of imprisonment was suspended by the Additional Sessions Judge. The petitioner filed an application for suspension of his conviction under Section 389(1) of the Cr.P.C. That application was dismissed by the Court by order dated 22.10.2002 which is impugned in this revision petition.
4. The short question for consideration is whether the conviction of the accused for the offences as above mentioned, are liable to be suspended during the pendency of the appeal before the Additional Sessions Judge. Counsel for the petitioner has argued that the petitioner was a bank employee. After the order of conviction and sentence he has received a show cause notice dated 16.10.2002 from his employer bank asking him to show cause by 25,10,2002 as to why he be not dismissed from service. He referred to Annexure C which is the show cause notice, He also referred to page 12 which showed that the employer bank proposes to impose on him the punishment of dismissal from service with immediate effect in view of the conviction order passed by the Court against him. Counsel for the petitioner has relied upon the judgment of the Supreme Court in Rama Narangv. Ramesh Narang and Ors., ; Padam Singh v. State of U.P., IV (1999) CCR 226 (SC) = 2000 SCC (Cri.) 285 and Retti Deenabandu and Ors. v. State of Andhra Pradesh, 1977 SCC (Cri.) 173, in support of his argument that if the order of conviction of the petitioner is not suspended the consequences would be very serious as the petitioner would be dismissed by the employer bank. Though he has tried to point out to certain alleged lacunas and deficiencies in the evidence of the petitioner by reading out certain portions for the judgment of the Metropolitan Magistrate but it will be inappropriate for this Court to meticulously examine the evidence and decide upon the point raised since the order of the learned Metropolitan Magistrate is the subject matter of the appeal which is pending for hearing before the Appellate Court. Therefore, I refrain from commenting upon the merit of the case of the petitioner in appeal and confine this order only to the consideration of his prayer for suspension of the conviction order.
5. Learned APP for the State has opposed the suspension of sentence and has argued that the appeal is fixed for disposal on 18.11.2002. According to her the petitioner is employed in a bank and the bank has already extended the time to show cause by one week and as such the petitioner may again approach the employer bank to give him further time till the disposal of the appeal to show cause against the notice issued.
6. The learned Additional Sessions Judge has relied upon the observation of the Supreme Court in K.C. Sareen v. CBI, Chandigarh, , where the Supreme Court has made the following observation:
“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 finding. If such a public servant become entitled to hold public office and to continue to go 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. 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 of the revision.”
7. The allegation against the petitioner and the co-accused who has also been convicted Along with him are that they were party to the criminal conspiracy by opening two fictitious current accounts and vouchers were credited to those accounts and they also committed theft of the record which was placed in the strong room for safe custody etc.
8. A three Judges Bench of the Supreme Court in Rama Narang (supra), has made the following observation:
“That takes us to the question whether the scope of Section 389(1) of the Code extends to conferring power on the Appellate Court to stay the operation of the order of conviction. As stated earlier, if the order of conviction is to result in some disqualification of the type mentioned in Section 267 of the Companies Act, we see no reason why we should give a narrow meaning to Section 389(1) of the Code to debar the Court from granting an order to that effect in a fit case. The appeal under Section 374 is essentially against the order of conviction because the order of sentence is merely consequential thereto; albeit even the order of sentence can be independently challenged if it is harsh and disproportionate to the established guilt. Therefore, when an appeal is preferred under Section 374 of the 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.”
9. The Supreme Court was considering the question whether the appellant was liable to be invited to the consequences of Section 267 of the Companies Act notwithstanding the order by the High Court which was passed while admitting the appellants appeal against his conviction and sentence awarded by an Additional Sessions Judge. Section 267 forbids a company from appointing or employing or continuing the appointment or employment of any person as its managing or whole time director who is or has at any time been convicted by a Court of an offence involving moral turpitude. The Supreme Court examined the power of the Court under Section 389(1) of the Cr.P.C. which provided for suspension of sentence pending an appeal and release of the appellant on bail. The Supreme Court noticed that in certain situation the order of conviction could be executable since it may incur a disqualification as was in the case before the said Court. It was observed that in such cases power under Section 389(1) of the Cr.P.C. could be invoked and the attention of the Appellate Court should be invited to the consequences that were likely to fall to enable it to apply its mind to the issue.
10. In Padam Singh (supra), the Supreme Court has held that presumption of innocence of an accused with which he starts continues right through until he is held guilty by the final Court of Appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in a Trial Court. In Retti Deenabandhu and Others (supra), the Supreme Court held “conviction for an offence entails certain consequences. Conviction also carries with it a stigma for the convicted person. A convicted person challenging his conviction in appeal not only seeks to avoid undergoing the punishment imposed upon him as a result of the conviction, he also wants that other evil consequences flowing from the conviction should not visit him and that the stigma which attaches to him because of the conviction should be wiped out”. But these observations were made in the context of a case where the appellant had served out the sentence before the appeal came up for final disposal and the High Court disposed it of without going into the merit of the conviction order.
11. Section 389(1) of the Cr.P.C., as held by the Supreme Court, gives power to the Court to suspend the conviction of an accused during the pendency of his appeal in case it results in some disqualification or the consequences flowing from it are serious. Indeed the offence for which the petitioner has been convicted are grave and serious and the consequences of his conviction are that his employer bank has started departmental proceedings to dismiss him from the service without waiting for the result of the appeal. It is not a case where the appellant has been convicted under the provisions of Prevention of Corruption Act. The principles of law laid down in K.C. Sareen’s case, which is relied upon by the Additional Sessions Judge were passed in a case where accused were held guilty and convicted for offence under the Prevention of Corruption Act. The facts of this case are different. Therefore, considering that serious consequences would flow from the conviction order the learned Additional Sessions Judge in not considering his prayer and suspending the conviction order during the pendency of the appeal acted with material irregularity and failed to properly exercise the jurisdiction vested in him. The order of the learned Additional Sessions Judge thus suffers from illegality and impropriety in exercise of jurisdiction by the Court.
12. Accordingly, the petition is allowed. The conviction of the petitioner for the offences as aforementioned shall remain suspended during the pendency of the appeal. But at the same time the Additional Sessions Judge is directed to dispose of his appeal within a period of three months from today.