A. Jaganathan vs State

N. Arumugham, J.—The revision petitioner in Crl.R.C.23 of 1994 by name, Jaganathan being the Second accused, prays for the suspension of the conviction passed by the Judicial magistrate No. III, Erode in Calendar Case No. 790 of 1990 dated 18.2.1993 and confirmed by learned Principal Sessions Judge, Periyar District at Erode in C.A.37 of 1993 dated 10.1.1994, pending disposal of the Crl.R.C.23 of 1994 u/s 389 (1) Code of Criminal Procedure.

The petitioner was a police constable P.C. 919 by name Jaganathan (now under suspension), attached to Erode Taluk Police Station in Periyar District, who along with two others was tried and convicted as afore mentioned by the courts of law, after the full trial for the offences under Sessions 392, 466, 218 and 114 Indian Penal Code in Erode Town Police Station Crime No. 480 of 1990 and convicted and sentenced to undergo Rigorous Imprisonment for a period of two years and also to pay a fine of Rs.3000/- in default to suffer rigorous imprisonment for one month u/s 466 read with 114 Indian Penal Code and also to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.3000/- in default to suffer rigorous imprisonment for one month u/s 392 read with 114 Indian Penal Code, which was confirmed by the lower Appellate Court, The above revision is filed for its propriety and legality. During the pendency of the same, the sentence was suspended already by this Court, but not the conviction..

As he was a public servant he comes within the purview of the Tamil Nadu Public Subordinate Services (Discipline and Appeal) Rules and by virtue of the same, in the light of the conviction recorded against him, the competent authority had to initiate a departmental action for total disqualification, suspension or reducing the rank as provided under Article 309 of the Constitution. The relevant rules above referred to ought to have been invoked. But, though the authorities invoked the power under the Rules and initiated proceedings by issuing sow-cause notice to the petitioner on two occasions previously, the Tamil nadu Administrative Tribunal had set aside the same on the ground that the show cause notices were issued only under the police Standing Order instead of issuing the same under the Rules above referred to.

However, for the reasons and positions the sentence awarded against the petitioner was alone suspended by this Court, pending disposal of the revision filed by him. It was conceded that pursuant to the judgement of conviction rendered by both the courts below, the authority viz., the Superintendent of Police issued a show cause notice for the third time on 3.7.1995 to the petitioner herein asking him to submit his explanation as to why he should not be disqualified totally from the post, which prompted the petitioner herein to move this application for suspension of the judgement of conviction rendered by the courts below, pending disposal of the revision above referred to. Admittedly, the petitioner is the second accused and the charges framed against him were proved by the trial court and confirmed by the lower Appellate Court and canvassing the proprirty and legality of the same, the revision filed on his behalf is pending before this Court and this Court had occasion to suspend the sentence alone on the day when the revision was admitted, but, however, the judgement of conviction stands as it is. Perhaps, this prompted the Superintendent of Police to initiate the departmental action against the petitioner to disqualify, under the Rules above referred to and consequently, show cause notice was issued. It is not in controversy that the petitioner, because of his conviction and his very involvement in the criminal offence got suspended already and that accordingly, he has been receiving stipend only as provided by the Rules. However, it is seen that the impugned judgement recorded by both the Courts below against the petitioner is pending sub judice to be revised for the limited purpose of identifying its legality, propriety and validity. In this context, it is noticed that the petitioner will be losing his stipend, the only income, if he is thrown out of the job. This is the immediate factor which would have prompted him to move this application for suspension of the judgement of conviction, pending disposal of the revision u/s 389 of the Code of Criminal Procedure.

I have heard the arguments advanced by Mr. N.T. Vanamamalai, learned Senior Counsel appearing on behalf of the petitioner for the relief being asked for by the petitioner and the contra by Mr. B.Sriramulu, learned Public Prosecutor, both relying on case laws along with factual aspects. Section 389 of the Code of Criminal Procedure runs as follows:-

Suspension of sentence pending the appeal; release of appellant on bail:-

(i) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.

The minimum understanding of the phraseology adopted in the above Section is that when the convicted person prefers an appeal and during the pendency of the same, for the reason to be recorded in writing, the Appellate Court is fully empowered with the power of suspending the execution of the sentence or order appealed against, which in short would clearly mean that for reasons to be recorded by the Appellate Court, the sentence or the order passed shall be suspended. It has thus become imperative that in order to suspend the sentence or the conviction, the Appellate Court must itself identify some acceptable reasons which shall be in writing. Therefore, the relief moulded in the above sub-section cannot be given automatically or as a matter of right, but however, on identifying reasons to be recorded in writing for granting such relief.

Learned Senior Counsel Mr. N.T.Vanamamalai has placed reliance on the recent case law pronounced by the Supreme Court between Rama Narang Vs. Ramesh Narang and Others, , for the following legal ratio:

Under the Criminal Procedure Code there are two stages in a criminal trial before a Sessions Court, the stage up to the recording of a conviction and the stage of post-conviction up to the imposition of sentence. After the conviction is recorded, Section 235 (2) inter alia provides that the Judge shall hear the accused on the question of sentence and then pass sentence on him according to law. After the Court records a conviction, the accused has to be heard on the question of sentence and it is only after the sentence is awarded that the Judgement becomes complete and can be appealed against u/s 374 of the Code.

Since the order of conviction does not on the mere filing of an appeal disappear it is difficult to accept the submission that Section 267 of the Companies Act must be read to apply only to as ''final'' order of conviction. Such an interpretation may defeat the very object and purpose for which it came to be enacted. It is, therefore, fallacious to contend that on the admission of the appeal by Delhi High Court the order of conviction had ceased to exist. If that be, so, why seek a stay or suspension of the order?

Section 389(1) empowers the Appellate Court to order that the execution of the sentence or order appealed against be suspended pending the appeal. What can be suspended under this provision is the execution of the sentence or the execution of the order. The order referred to in Section 389(1) must be an order capable of execution. An order of conviction by itself is not capable of execution under the Code. It is the order of sentence or an order awarding compensation or imposing fine or release on probation which are capable of execution and which, if not suspended would be required by the authorities. -

However, if the order of conviction is to result in some disqualification of the type mentioned in Section 267 of the Companies Act, a narrow meaning should not be given to Section 389(1) of the Code to bar the court from granting an order staying operation of order of conviction in a fit case. In certain situations the order of conviction can be executable, in the sense, it may incur a disqualification as in the instant case. In such a case the power u/s 389(1) of the Code could be invoked. The appeal u/s 374 is essentially against the order of conviction because the order of sentence is merely consequential thereto albeit even on the order of sentence can be independently challenged if it is hard and disproportionate to the established guilt. Therefore, when as appeal is preferred u/s 374 of the Code, the Appeal is against both the conviction and sentence and therefore, there is no reason to place a narrow interpretation on Section 389 (1) of the Code not to extend 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. 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. But while granting a stay or suspension of the order of conviction the court must examine the pros and cons and if it feels satisfied that a case is made out for grant of such an order, it may do so and in so doing it may, if it considers it appropriate, impose such conditions as are considered appropriate to protect the interest of the share holders and the business of the company.

In a situation where the order of conviction may incur a disqualification, as in this case, the attention of the Appellate Court must be specifically invited to the consequence that is likely to fall to enable it to apply its mind to the issue since u/s 389 (1) it is under an obligation to support its Order for reasons to be recorder by it in writing. No one can be allowed to play hide and seek with the Court. He cannot suppress the precise purpose for which be seeks suspension of the conviction and obtain a general order to stay and then contend that the disqualification has ceased to operate.

Following the above pronouncement, the Supreme Court in another case between Deputy Director of Collegiate Education (Administration), Madras Vs. S. Nagoor Meera, has observed as follows:-

Taking proceedings for and passing orders of dismissal, removal or reduction in rank of a Government servant who has been convicted by a criminal court is not barred merely because the sentence or order is suspended by the appellate court or on the ground that the said government servant accused has been released on bail pending the appeal. It cannot be said that until the appeal against the conviction is disposed of action under clause (1) of the Second Proviso to Article 311(2) is not permissible. The more appropriate course in all such cases is to take action under clause (a) of the second Proviso to Article 311 (2), once a government servant is convicted of a criminal charge and not to wait for the appeal or revision, as the case may be. If, however, the government servant- accused is acquitted on appeal or other proceeding, the order can always be revised and if the government servant is reinstated, he will be entitled to all the benefits to which he would have been entitled to, had he continued in service. The other course suggested, viz., to wait till the appeal, revision and other remedies are over, would not be advisable since it would mean continuing in service a person who has been convicted of a serious offence by a criminal court. The action under clause (1) of the second Proviso to article 311 (2) will be taken only where the conduct which has lead to his conviction is such that it deserves any of the three major punishments mentioned in Article 311 (2). Article 311(2) declares that no person, who is a member of the Civil service of the Union or All India Service or a Civil service of a State or holds a civil post under the Union or a State shall be dismissed, removed or reduced in rank except after an enquiry in which he has been informed of the charge against him, and given a reasonable opportunity of being heard in respect of those charges. The second Proviso, however, carves out three exceptions to the said Rule.

In the words of Supreme Court, it has been stated further as follows:-

We are concerned with the first exception mentioned, under clause (a). In so far as it is relevant, the second Proviso reads as follows:-Provided further that this clause shall not apply-(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge.

Following the decision held by the Supreme Court in the above referred earlier case, in the subsequent case, the Apex Court observed as follows at page 1366:-

We need not however, concern ourselves, any more with the power of the appellate court under the Code of Criminal Procedure for the reason that what is relevant for clause (a) of the second Proviso to Article 311 (2) is the conduct which has led to his conviction on a criminal charge and there can be no question of suspending the conduct. We are, therefore, of the opinion that taking proceedings for and passing order of dismissal, removal or reduction in rank of a Government servant who has been convicted by a criminal court is not barred merely because the sentence or order is suspended by the appellate court or on the ground that the said Government servant accused has been released on bail pending the appeal.

Therefore, it is made clear that the Apex Court has pronounced the legal ratio to be followed in a case of this nature that ''for the reasons to be recorded in writing by the Appellate Court, the conviction or order of sentence whatever may be, can be suspended by a Appellate Court during the pendency of the same. To this extent the Appellate Court must be approached properly and the parties cannot play a hide and seek game in seeking such relief. It was, thus, made clear that even though the order of sentence or conviction suspended by the Appellate Court during the pendency of the appeal or revision or other wise. If one wants to stop the proceedings which have been initiated for disqualification or removal from service or reduction in rank in respect of a public servant, one has to look into the moral conduct very much involved in such a case and only in such case, when the Court is satisfied with such conduct, the remedy provided under the different statute cannot at all be stopped.

There was no controversy or dispute with regard to the power vested with the appellate court in suspending the sentence or conviction as very much involved in this revision. For the very reasoning that concurrent findings, recorded by both the courts below are being challenged in this revision for want of its legality, propriety and validity and the said revision is pending - Section 401 of the Code of Criminal Procedure clearly makes it applicable also to the revisions filed u/s 389 of the Code of Criminal Procedure. Such being the case, the power empowered with this High Court or the Appellate Court to suspend the sentence or conviction is always inherent and can be exercised at any stage, subject to the condition that the Appellate Court should be approached and should be satisfied with the reasonings to be recorded in writing. But, however, this suspension alone will not put a total stop for the proceedings, or some other action provided under different statute viz., to disqualify or reduce in rank or suspend the public servant for the very involvement of the moral conduct.,,

Learned Public Prosecutor Mr. B.Sriramulu, relying upon the latest decision of the Supreme Court above referred to has contended that the petitioner being a constable entrusted with the duty of enforcing law and order and giving protection to others is found very much involved in a crime specified under the Penal Code of our land, that itself shows that he is being involved very badly and that in this regard the conduct of the petitioner is a total betrayal to get any relief in this case, which would mean that he cannot be provided with any obstacle for being proceeded with under the different statute, viz., The Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules by issuing a show cause notice for the purpose of disqualification, suspension or reduction in rank.

While controverting the said contention Mr. N.T. Vanamamalai. learned Senior Counsel would make an attack that the legal ratio held by the Apex Court would not mean to the extent that the parties concerned are not so remedyless in the context of this moral conduct and even the concurrent judgments purely depend upon the identification of such overt-acts as spelt out by the Courts, of law, i.e., only on the basis of mere facts of law. While saying so. Learned Counsel would draw my attention to the very contents of the first information report available in this case. He has stated that the mere recovery of some money from the house of the petitioner herein at a subsequent stage seems to be the only ground for recording conviction against the petitioner by both the Courts below. Learned Senior Counsel has contended that there was no scope to imply that even the conduct of the petitioner is so cruel or so bad, which cannot be accepted to render any help as held by the Supreme Court in the above case-laws. For the limited purpose of this petition, looking into the contents of the first information report and other materials relied on by the Bar is enough for me, at this stage, to mould the relief asked for viz., the suspension of conviction as provided u/s 389(1) of the Code of Criminal Procedure and the rest could be looked into only during the hearing revision petition. In short to say, I have not expressed any of my opinion about the merits of this revision at this stage, while disposing this petition. In this context, I am inclined to say that the conduct clearly spelt out and the ratio held by the Supreme Court as provided under Article 311(2) of the Constitution of India cannot be held adverse to the interest of the petitioner. It is therefore, under the circumstances, having considered the factual aspects and the case-laws held in this regard, the petitioner will definitely lose the merge stipend, if I am not inclined to grant the prayer suspending the conviction during the pendency of the revision on the same terms and conditions imposed already in this Court, while suspending the sentence.

In the result, for all the reasons above referred to, the petition is allowed. Consequently, the conviction against the peti-tioner/2nd accused recorded by the trial court and confirmed by the Appellate Court is hereby suspended pending disposal of the revision on the same terms and conditions imposed already while suspending the sentence.