STATE OF PUNJAB v. DEEPAK MATTU

Citation: [2007] 10 S.C.R. 90

Court: Supreme Court of India

Bench: S.B. SINHA, H.S. BEDI

Case summary

STATE OF PUNJAB v. DEEPAK MATTU.pdf

Judgment text

STATE OF PUNJAB f V. DEEPAK MATTU SEPTEMBER 18, 2007 [S. B. SINHA AND H. S. BEDI, JJ. ) Code ofCriminal Procedure, 1973: s. 389-Conviction ofpublic -~servant under Prevention ofCorruption Act-Special Court allowed suspension ofconviction during pendency ofappeal -High Court dismissed application for vacation ofsuspension-Correctness of- Held: Not correct-Power to suspend order of conviction to be exercised only in exceptional cases-Court required to look at all aspects including ramification ofkeeping such conviction in abeyance. Interlocutory order: Modification ofits own interlocutory order by High Court-Scope of-Discussed-Code ofCriminal Procedure, ~ 1973-s. 362. Prosecution case was that the respondent who was public servant was proceeded against in a case under Prevention of Corruption Act. He was sentenced to 1Yz years RI. He filed appeal. In the said appeal, an application u/s. 389 Cr. P. C. was filed by him for suspension ofconviction.

Special Court allowed the application and suspended the conviction during pendency of appeal on the yground that it would take long time to decide the appeal and there were good points to argue. High Court dismissed the application for vacation ofstay ofconviction. In appeal to this Court, appellant contended that the High Court being aware ofthe decisions ofthis Court holding that ordinarily the suspension ofconviction should not be granted, must be held to have committed a manifest error in passing the impugned judgment. _,Jo The respondent contended that he being a government servant and he having been convicted only for a period of1Yz years, the High Court cannot be said to have committed any error in suspending the STATE v. DEEPAKMATTU 91 judgment ofconviction. ) Allowing the appeal, the Court HELD: 1. Po! lsible delay in disposal ofthe appeal and arguable points therein by itself may not be sufficient to grant suspension of a sentence.

The High Court while passing the order merely noticed some points which could be raised in the appeal. The ground~ so taken do not suggest that the respondent was proceeded against by the State, malafide or any bad faith. [Para 7) [96-B, CJ KC Sareen v. CB. I, Chandigarh, [2001) 6 SCC 584, relied ou. 2. 1. Though the power to suspend an order ofconviction, apart from the order of sentence, is not alien to s. 389(1) of the Cr. P. C. , its exercise should be limited to very exceptional ca~es. rilerely because the convicted person files an appeal in challenge of the conviction the court should not suspend the operation ofthe order ofconviction. The court has a duty to look at all aspects including the ramifications of keeping such conviction in abeyance. [Para 7) [96-D-E] 2. 2.

When a public servant is found guilty ofcorruption 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 aim should not even temporarily absolve him from such findings. Ifsuch a public servant becomes entitled to hold public office and continues to do official acts until he is judicially absolved from such findings by reason of suspension ofthe order ofconviction, it is public interest which suffers and sometimes, evefl. irreparably.

When a public servant who is convicted ofcorruption is allowed to continue to hold public office, it would impair the morale ofthe other persons manning such office, and consequently that would erode the already shrunk confidence of the people in such public institutions besides demoralising the other honest public servants who would either be the colleagues or subordinates ofthe convicted person. Ifhonest public servants are compelled to take orders from proclaimed corrupt officers on ' }.. _ ~ account ofthe suspension ofthe conviction, the fallout would be one of shaking the system itself. Hence it is necessary that the court should not aid the public servant who stands convicted for corruption charges to hold public office until he is exonerated after conducting a judicial adjudication at the appellate or revisional level. [Para 7) [97-B, G] State ofMaharashtra v. Gajanan and Anr. , [2003) 12 SCC 432 and Union ofIndia v. Atar Singh, [2003) 12 SCC 434, relied on. . L 3.

Thus impugned order is passed in a wrong, illegal premise. There is no impediment which comes on its way not to correct an apparent error. S. 362 of the Code of Criminal Procedure is only operative in a situation where a final order has been passed. The Code of Criminal Procedure confers inherent power in the High Court unlike the lower court's. There is no reason as to why High Court cannot modify its own interlocutory order when the matter is yet to be finally disposed of. [Paras 9 andlO) [98-D-F] .... CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1251of2007. From the Judgment and Order dated 17. 01. 2006 ofthe High Court ofPunjab & Haryana at Chandigarh in Crl. Misc. No. 51634 of2005 in Crl. A. No. 1022-SB of 2004. Ruchira Gupta and Kuldip Singh for the Appellant. 'r Neeraj Kumar Jain, Bharat Singh, Sanjay Singh, Sandeep Chaturvedi and Ugra Shankar Prasad for the Respondent. The Judgment ofthe Court was delivered by S. B. SINHA, J. 1. Leave granted. 2.

Respondent is a public servant. He was proceeded against in a case under Prevention of Corruption Act. He was sentenced to one and ..... ; a half years (18 months) rigorous imprisonment. A fine of Rs. 1,000/- (Rupees One Thousand Only) was also imposed upon him by Special Judge, Fatehgarh Sahib, Punjab. He preferred an appeal thereagainst marked as Criminal Appeal No. 1022-SB/04. In the said appeal, an STATE v. DEEPAK MATTU [SINHA, J. ] ) application was filed by the respondent for suspending ofconviction purported to be under Section 389 ofthe Code ofCriminal Procedure, 1973. By reason of the Order dated 11. 1. 2005, learned Judge of the Special Court allowed the said application holding; "I have heard Ld. Counsel for the applicant-appellant Deepak Mattu and Deputy Advocate General, Punjab appearing for the respondent on an application moved under Section 389 Cr. P. C. for suspension ofconviction recorded under Sections 7 and 13(2) ofthe Prevention ofCorruption Act.

The sentence ofthe appellant has already been suspended. He is working as Junior Engineer in Punjab State Electricity Board. It is argued that ifhis conviction is not suc;pended, he may have to face dismissal from service. Three flaws in the impugnedjudgment have been pointed out. Firstly, that shadow witness has not been examined; secondly, that the alleged demand was ofRs. 2000/and this bribe money was allegedly paid but at the time ofrecovery, only an amount ofRs. 1900/- was recovered; and thirdly, there is no corroboration to the demand in as much as the complaint alone proved the same and the shadow witness in whose presence it was made has not been examined. It will take a long time to decide the appeal. There are fairly good points to argue. This application is allowed and the conviction of the appellant is suspended during the pendency ofthe appeal. '' 3.

An application was filed by the appellant herein for vacation of stay ofconviction granted to him by reason orthe said order with a prayer to recall the same, whereby the Court attention was drawn to a judgment ofthis Court in KC. Sareen v. CB. I, Chandigarh, (2001] 6 SCC 584. By reason ofthe impugned judgment while the Court accepted that an order suspending the conviction could be allowed only in avery exceptional t--case, dismissed the application of stay holding; "The present petition is not maintainable. Order dated 11. 1. 2005 can neither be reviewed nor recalled. It was passed in the presence ofthe Deputy Advocate General, Punjab, who represented the respondent-State. The merits ofthe case were considered. It was ( considered that it will take a long time to decide the appeal and there are fairly good points to be argued. Hence, application under Section 389 Cr. P. C.

was allowed and the conviction of the appellant recorded under Sections 7 and 13(2) ofthe Prevention of Corruption Act was suspended during pendency of appeal. There is no blanket bar imposed on the Appellate Court to grant stay of conviction in corruption cases. After going through the 'grounds ofappeal' and the contents ofthe application moved under I .. L- Section 389 Cr. P. C. , it was considered that it was an exceptional case. Hence, the conviction was stayed during pendency ofthe appeal. Sentenced imposed on the appellant had already been stayed. Now, there exists no reason, either for vacation ofthe order dated 11. 1. 2005 or to review/recall the same. " 4. Ms. Ruchira Gupta, learned counsel appearing on behalfof the appellant would submit that the High Court being aware ofthe decisions ofthis Court holding that ordinarily the suspension ofconviction should -~not be granted, must be held to have committed a manifest error in passing the impugnedjudgment. Mr.

Neeraj Kumar Jain, learned counsel appearing on behalfof the respondent on the other hand would submit that the respondent being a government servant and he having been convicted only for a period of one and a half years, the High Court cannot be said to have committed any error in suspending the judgment ofconviction. In any event, the learned counsel submitted that the Court for all intent and purport having arrived at a decision that an exceptional case have been made out, no interference therewith by this Court is warranted. 5. Section 389 ofthe Code of Criminal Procedure, 1973 reads as under:- "389.

Suspension of sentence pending the appeal; release of appellant on bail - (1) 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: ' Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted ofan offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release. Provided further that in cases where a convict~ person is released on bail it shall be open_ to the Public Prosecutor to file an application for the cancellation ofthe bail.

t (2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case ofan appeal by a convicted person to a Court subordinate thereto. (3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall- (i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or (ii) where the offence ofwhich such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford I sufficient time to present the appeal and obtain the orders ofthe Appellate Court under sub-section (1 ), and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.

(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is ~ so released shall be excluded in computing the term for which he is so sentenced. " 6. An order ofsuspension ofconviction admittedly is not to be readily granted. The High Court in its order dated 11. 1. 2005 passed a judgment ( irrespective ofconviction and sentence, only on two grounds; (t) A long time may be taken to decide the appeal. (ti) There are good points to argue. 7. While passing the said Order, the High Court did not assign any special reasons. Possible delay in disposal ofthe appeal and there are arguable points by itselfmay not be sufficient to grant suspension ofa sentence. The High Court while passing the said Order merely noticed some points which could be raised in the appeal. The grounds so taken do not suggest that the respondent was proceeded against by the State, malafide or any bad faith. In KC.

Sareen (supra), this Court opined; "11. The legal position, therefore, is this: though the power to suspend an order ofconviction, apart from the order of sentence, is not alien to Section 389(1) ofthe Code, its exercise should be limited to very exceptional cases. Merely because the convicted person files an appeal in challenge ofthe conviction the court should not suspend the operation ofthe 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 ofthe 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 ofthe conviction and sentence for the offence under the PC Act, the superior court should normally suspend the sentence ofimprisonment until disposal of the appeal, because refusal thereofwould render the very appeal otiose unless such appeal could heard soon after the filing ofthe appeal. But suspension ofconviction ofthe offence under the PC Act, dehors the sentence ofimprisonment as a sequel thereto, is a different matter. 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 ofthe republic.

Unless those tentacles are intercepted and impeded from gripping the normal and orderly functioning of the public offices, through strong \ ( legislative, executive as well asjudicial exercises the corrupt public servants could even paralyse the functioning ofsuch institutions and thereby hinder the democratic polity. Proliferation ofcorrupt public servants could gamer momentwn to cripple the social order ifsuch men are allowed to continue to manage and operate public institutions. When a public servant is found guilty ofcorruption 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 findings.

Ifsuch 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 ofsuspension ofthe order ofconviction, it is public interest which suffers and sometimes, even irreparably. When a public servant who is convicted ofcorruption is allowed to continue to hold public office, it would impair the morale ofthe other persons manning such office, and consequently that would erode the already shrunk confidence ofthe people in such public institutions besides demoralising the other honest public servants who would either be the colleagues or subordinates of the convicted person. Ifhonest public servants are compelled to take orders from proclaimed corrupt officers on account ofthe suspension ofthe conviction, the fallout would be one ofshaking . the system itself.

Hence it is 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 ajudicial adjudication at the appellate or revisional level. It is a different matter ifa corrupt public officer could continue to hold such public office even without the help of a court order suspending the conviction. '' 8. In State ofMaharashtra v. Gajanan andAnr. , [2003112 SCC 432, relying upon another decision ofthis Court in Union ofIndia v. Atar Singh, [2003] 12 SCC 434 and also KC. Sareen (su. pra), it was held; . A "5. In the said judgment ofK. C. Sareen this Court has held that f 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 ofthis Court that it has a duty to look at all aspects including ramification ofkeeping such conviction in abeyance. The High Court, in our opinion, has not taken into consideration any ofthe above factors while staying the conviction. It should also be noted that the view expressed by this Court in K. C. Sareen case was subsequently approved followed by the judgment ofthis Court in Union ofIndia v. Atar Singh". 9. Relying on the aforementioned two decisions, an order is passed in wrong, illegal premise. There is no impediment which comes on its way not to correct an apparent error. Section 362 ofthe Code ofCriminal Procedure is only operative in a situation where a final order has been passed. The Code ofCriminal Procedure confers inherent power in the High Court unlike the lower court's. 10. We, therefore, see no reason as to why High Court cannot modify its own interlocutory order when the matter is yet to be finally disposed of. 11.

We, therefore, are ofthe opinion that the High Court was not correct in its view. We, therefore, allow this appeal by setting aside both the orders. No costs. D. G. Appeal allowed.