Shashi Mohan vs C.B.I. on 27 January, 2008

Punjab-Haryana High Court
Shashi Mohan vs C.B.I. on 27 January, 2008
Equivalent citations: 2008 CriLJ 3158
Author: H Lal
Bench: H Lal


Harbans Lal, J.

1. The application has been filed under Section 389 of the Code of Criminal Procedure (for short ‘the Code’), seeking suspension of conviction of the applicant/appellant, inter alia, on the grounds that vide order dated 23rd March, 2007, this Court as pleased to suspend the sentence, during the pendency of the appeal. The applicant/appellant is working as Senior Assistant in Chandigarh Housing Board, Chandigarh and because of judgment of conviction and sentence under Sections 7 and 13 of the Prevention of Corruption Act, 1988 (for brevity ‘the Act’), a show cause notice dated 7th December, 2007 proposing to dismiss him from service has been issued. He is the only bread earner of his family. In these circumstances, the conviction passed against the appellant may be stated in the interest of justice, equity and fair play.

2. Notice of this application was issued to the CBI.

3. I have heard the learned Counsel for the parties.

4. Mr. J.V. Yadav, Advocate appearing on behalf of the applicant/appellant urged with great eloquence that in the background of the reasons embodied in this application, the conviction is liable to be stayed.

5. To tide over this submission, Mr. Rajan Gupta, Advocate appearing on behalf of CBI canvassed at the bar that in view of the law laid down by the Apex Court in re: K.C. Sareen v. C.B.I., Chandigarh 2001 (3) Recent Cr. R 718 : 2001 Cri LJ 4234, the conviction cannot be stayed.

6. I have well considered the rival contentions. In the instant case, the plea of the applicant is that a show cause notice dated 7th December, 2007 proposing to dismiss from service has been issued to him. In case K.C. Sareen (supra) the appellant was an officer of the Punjab National Bank. He got himself involved in a prosecution along with some of his co-employees of the same Bank for defrauding the Bank to the tune of about Rs. 2 lakhs. After completing the investigation, the Central Bureau of Investigation laid a charge-sheet against him and his co-employees for offences under Section 13(2) of the Act and Sections 120, 201 and 420 of the Indian Penal Code. On the conclusion of trial, they were found guilty and sentenced. He was sentenced under Section 13(2) of the Act. He preferred an appeal before this Court and the same was admitted. The sentence as has been done in the present case was suspended. On the strength of his conviction, he was dismissed from service by the authorities of the bank. He moved to this Court to have the conviction also suspended. His such prayer was declined by the single Bench of this Court.

Undaunted by the order, he once again involved this Court for the same purpose, at a later stage, by supplying certain additional facts for fresh consideration of his plea for suspending the conviction. One of the causes spearheaded by him was the order of dismissal passed by the bank authorities against him on the premise of the conviction. Another ground highlighted by him was that his appeal in this Court was not likely to be boarded for hearing without the lapse often years and that itself would defeat the ends of justice. Alternatively he made a bid to show that the conviction was based on very slender reasoning and hence he has “a fair chance of getting acquitted in appeal.” His second application too met failure with the observations that “after perusing the record no ground is made out for suspending the order of conviction passed against the appellant.”

7. Undeterred by the said order, he moved to the Hon’ble Supreme Court by filing S.L.P. (Criminal) No. 2202 of 2001. The leave was granted. In para No. 11, their Lordships of the Apex Court observed as under:

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 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 sequel thereto, is a different matter.

8. Their Lordships observed in the succeeding paragraph that “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 in spite of keeping the sentence of imprisonment in abeyance till the disposal of the appeal or revision.

9. In paragraph No. 15 of the judgment, the following observations have been rendered:

15. We therefore dismiss this appeal. However, we wish to state that it is open to the appellant to move the High Court for early hearing. If the High Court is satisfied that the appellant has a reasonably good prospect of being exonerated or that there is any other special reason, we hope that the High Court would board the appeal for hearing on an early date.

10. The power to suspend or stay conviction has to be exercised sparingly and not in a mechanical manner. The rule laid down in the aforequoted authority still holds the ground. The show cause notice dated 7th December, 2007 proposing to dismiss from service is grounded and founded on the conviction of the applicant/appellant. If the conviction is suspended, it will aid the applicant/appellant to hold the public office, which would be in teeth of the observations rendered in the case of K.C. Sareen (supra). Thus, there is no ground to stay the conviction of the applicant/appellant. However, if he is confident that there are sufficient grounds for his appeal to succeed, he can move for early hearing of the same. This application being misconceived, in view of K.C. Sareen’s case (supra) is dismissed.

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