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Judgment
B. Akbar Basha Khadiri, J.—The petitioner is the appellant in Criminal Appeal No.231 of 2000. He has preferred the Criminal Appeal against the Judgment dated 16.02.2000 passed in C.C.No. 16 of 1997 by the learned XI Additional City Civil Judge and Special Judge, Madras, convicting him for an offence u/s 13(2) read with Section 13(l)(e) of the Prevention of Corruption Act. 1988 and sentenced him to undergo R.1. for one year and to pay a fine of Rs.5,000/-.
The petitioner had paid the fine. He had also sought for suspension of sentence in Crl.M.P.No.1355 of 2000. The sentence was suspended. The petitioner was enlarged on bail. Subsequently, the petitioner had received a confidential '' communication dated 25.04.2000 from the Chief Secretary to the Government to the effect that because the petitioner has been convicted and sentenced to the above imprisonment and pay a fine and he had also paid the fine, action is contemplated as per Rule 3(1) of All India Services Conduct Rules, 1968. In that communication, it is stated that by virtue of his conviction u/s 13(2) read with 13(l)(e) of the Prevention of Corruption Act, the Government has proposed to impose the penalty of dismissal on him. The petitioner now seeks suspension of conviction also.
According to him. if the conviction is not suspended, the Government would eventually dismiss him resulting in irreparable hardship. According to him, if he succeeds in the appeal and the conviction is set aside, the dismissal will remain in force.
The learned Public Prosecutor took notice of the matter.
Heard both the sides. The learned Counsel appearing for the petitioner and the learned Public Prosecutor submitted about the scope of Section 389(1) of the Code of Criminal Procedure and the effect of conviction etc.
In Rama Narang v. Ramesh Narang (19950 2 SCC 513), the Apex Court has analysed the Provisions of Section 389(1) of the Code of Criminal Procedure and the effect of conviction and also whether or not conviction can be suspended by the appellate Court. In that case, the Apex Court has held as under:-
15.Under the provisions of the Code to which we have already referred there are two stages in a criminal trial before a sessions Court, the stage up to the recording of a conviction and the stage post- conviction up to the imposition of sentence, a judgment becomes complete after both theses stages are covered. u/s 374(2) of the Code any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge may appeal to the High Court. Section 384 provides for summary dismissal of appeal if the Appellate Court does not find sufficient ground to entertain the appeal. If, however, the appeal is not summarily dismissed, the Court must cause notice to issue as to the time and place at which such appeal will be heard. 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. Does ''order'' in Section 389(1) mean order of conviction or an order similar to the one u/s 357 or Section 360 of the Code''? Obviously the order referred to 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 to be executed by the authorities....
16.1n 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. In such situations 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 recorded by it in writing.
19.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 u/s 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 u/s 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, 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.
Therefore, there is no dispute that a conviction can be suspended, if order of conviction is executable. No doubt, the conviction in the instant case is executable, in that the Government has taken action against the petitioner. As pointed out by the Apex Court, the Court has a discretion to suspend the conviction, if it causes irreparable hardship to the convict.
In Deputy Director of Collegiate Education (Administration), Madras Vs. S. Nagoor Meera, the Apex Court has pointed out that the action contemplated is on the basis of the conduct which has led to conviction on criminal charge, there can be no question of suspending the conduct. Their Lordships of the Apex Court have observed as under:-
.....We are. therefore, of the opinion that 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.
Their Lordships have further held that once a Government servant was convicted for a criminal charge, the more proper course in all such cases is to take action and not to wait for the appeal or revision, as the case may be. It was also observed as under:
.......1f, 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 most specific question in the instant case is whether the Court should exercise its discretion in favour of a person who had been convicted for commission of offence under the Prevention of Corruption Act.
In State of Tamil Nadu Vs. A. Jaganathan, ). Their Lordships of the Apex Court have conferred to the earlier decision rendered in Rama Nargang''s case and held that in that case, by virtue of Provisions of Section 267(c) of the Companies act, the conviction, ipso facto expects discontinuous of appointment or employment made prior to the conviction and putting an end to such appointment or employment once for all, would cause so much of damage that could not be undone if ultimately revision of the appellants of that case was allowed, and that but in cases where the status and position can be revived and made good, then the conviction need not be suspended. That was a case relating to a Police Inspector who was convicted u/s 392, 218 and 466 IPC, while the other accused who were also public servants were convicted under the provisions of Prevention of Corruption Act. Their Lordships of the Apex Court have observed that in such a case, the discretionary power to suspend the conviction either u/s 389(1) or u/s 482 Code of Criminal Procedure should not have been exercised, indicating that in cases where a person is convicted under the Prevention of Corruption Act, the discretion ought not to be exercised in favour of such person to suspend the conviction. This has been followed by this Court in KSelvaraj and Another v. The State, Etc. (1998 2 L.W.(Cri.) 757), wherein Sidickk J., has referred to Rama Narang''s case cited supra and also Jaganathan ''s case cited supra and held that 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 Code of Criminal Procedure.
It would thus appeal that the march of law is that the discretion to suspend the conviction ought not to be exercised in favour of a person who has been convicted under the provisions of Prevention of Corruption Act. In his petition, the petitioner herein had stated that he is due to retire on superannuation on 31.05.2000. It is not as if he would continue in service for a long time and lose the accumulating benefits. Even in case of dismissal, ultimately if he succeeds in the appeal, he would regain all the benefits, which he may lose in the event of dismissal. It therefore cannot be said that the damage cause to him cannot be undone. The Criminal Miscellaneous Petition is therefore dismissed.