Supreme Court of India
CENTRAL BUREAU OF INVESTIGATION, NEW DELHIversusM.N. SHARMA
- Citation
- 2008 INSC 848
- Decided
- 21 July 2008
- Disposal
- Case Allowed
- Bench
- ARIJIT PASAYAT
Holding
A suspension of conviction under Section 389 CrPC is permissible only in very exceptional cases and must be recorded with reasons; the High Court’s order staying the conviction without reasons is therefore set aside.
Summary
The respondent, a Sub‑Registrar, was convicted by a Special Judge under the Prevention of Corruption Act, 1988 and Section 120‑B IPC and sentenced to rigorous imprisonment. While his appeal was pending, he filed an application under Section 389(1) read with Section 482 of the CrPC seeking suspension of the conviction, and the Delhi High Court stayed the conviction without recording any reasons. The CBI appealed to the Supreme Court, contending that suspension of a conviction, especially of a public servant, is permissible only in exceptional cases and must be justified in writing. The Court examined earlier decisions, notably K.C. Sareen v. CBI, which limited the power to suspend convictions to rare circumstances and emphasized the public interest in not allowing a convicted public servant to continue in office. Finding that the High Court had not provided any reasons and had not satisfied the stringent test for exceptional circumstances, the Supreme Court set aside the stay order and directed the High Court to dispose of the appeal promptly. Consequently, the conviction remained in force pending the final decision of the appeal.
Issues considered
- Whether a High Court can suspend a conviction under Section 389 CrPC without recording reasons.
- Whether suspension of conviction of a public servant under the Prevention of Corruption Act is permissible in the absence of exceptional circumstances.
- What criteria must be satisfied for a court to exercise its power to stay a conviction under Section 389 CrPC.
Legislation cited
- Code of Criminal Procedure, 1973s. 389, s. 482
- Indian Penal Code, 1860s. 120-B
- Prevention of Corruption Act, 1988s. 13(1)(d), s. 13(2)
Subjects
suspension of convictionSection 389 CrPCPrevention of Corruption Actpublic servantappealcriminal procedurestay of orderexceptional case
Judgment
,__
[2008] 11 S.C.R. 18
~
A CENTRAL BUREAU OF INVESTIGATION, NEW DELHI
v.
M.N. SHARMA
(Criminal Appeal No.· 1127 of 2008)
...
JULY 21, 2008
B
[DR. ARIJIT PASAYAT AND HARJIT SINGH BEDI, JJ.]
,.
Code of Criminal Procedure, 1973; Ss.389 and 482.'
Suspension of conviction - Special Judge convicting
c accused employ~e for committing offences. punishable un-
ders.13(1)(d) r/ws.3(2) of 1988A9'~and s.1208 IPC~Accused
filing application in terms of s. 389( 1) rlw s.482 Cr. PC. - Con-
viction· stayed .by High Court - Correctnes{3 of - Held: High
Court while directing suspension of conviction indicated no
D reasons - Hence order of the High. Coµrt not sustainable and
~
set aside -Prevention of Corruption_ Act, 1988-s 13(1)(-d) rlw A_
1--
s.13(2) ~Penal.Code, 1860 - s.120-B ..
Responderlt, an employee, was convicted by the
E Special Judge for com'mitung offences punishabfe under
Ss. 7 and 13(1)(d) read with s.13(2) ofthe Prevention of
Corruption Act, 1988 ands. 120-B IPC and sentenced him
to undergo rigorous imprisonment accordingly. Respon-
dent filed an appeal which was admitted. During pendency
of the appeal, respondent filed an application in terms of
F
s. 389(1) Cr.P.C; r~ad with s.482 of the Code for suspen-
....
sion of the judgment. The High Court stayed the c.onvic-
tion. Hence the present appeal.
Appellant contended that the suspension of the con-
G viction is clearly unsustainable. . . .. ' ~
I
Respondent submitted that the High Court took note
of the fact that this was a case where the prayer for sus- )<:-
pension of the conviction was to be granted and unless
the order of conviction was suspended, the respondent
H 18
CENTRAL BUREAU OF INVESTIGATION, NEW DELHI 19
v. M.N. SHARMA [DR. ARIJIT PASAYAT, J.
would have lo_st his job. A
Allowing the appeal, the Court
HELD: 1. Single Judge of the High Court while di-
recting suspension of conviction indicated no reasons.
Hence, the order of the Single Judge of the High Court B
~
directing the suspension/stay of the conviction cannot
stand and is set aside. (Paras 10 & 11) [25-A & B]
K. C. Sareen vs. CBI, Chandigarh (2001) 6 SCC 584;
State of Maharashtra vs. Gajanan and Another (2003) 12 SCC
432; Union of India vs. Atar Singh (2003) 12 SCC 434 and
c
State of Haryana vs. Hasmat (2004) 6 SCC 175 - referred to.
2. The High qourt to take up the matter and dispose
of the appeal as early as practicable. (Para 12) [25 D]
(2001) 6 SCC 584; Referred to 6, 7 ,8 & 9 D
(2003) 12 sec 432;
j
(2003) 12 sec 434;
(2004) s sec 175 E
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 1127 of 2008
From the final Judgment and Order dated 3.2.2006 of the
High Court of Delhi at New Delhi in Crl. Appeal No. 813/2005
F
A. Sharan, A.S.G., Vikas Sharma, AmitAnand Tiwari, B.K.
Prasad and P. Parmeswaran for the Appellant.
Uday U. Lalit, Ashutosh Lohia, Gaurav Agrawal and Jyoti
Mendiratta for the Respondent.
G
The Judgment of the Court were delivered
·~ DR. ARIJIT PASAYAT, J. 1. Leave granted.
2. Challenge in this appeal is to the order passed by a
learned Single Judge of the Delhi High Court directing that the H
20 SUPREME COURT REPORTS [2008] 11 S.C.R.
A conviction of the respondent shall remain stayed during the pen-
dency of Criminal Appeal No.813 of 2005
3. Background facts in a nutshell are as follows:
Respondent who. was working as Sub-Registrar,
B Tehasildar and was convicted by learn~d Special Judge, Tis
Hazari Courts, Delhi, for offences punishable under Sections}
and 13(1 )(d) read with Section 13(2) of the Prevention of Cor-
ruption Act, 1988 (in short 'P.C. Act') and Section 120-B of the
Indian Penal Code, 1860 (in short 'IPC') and sentenced to un-
C dergo rigorous imprisonment for a period of one year, 2 years
and one year respectively and to pay a fine of Rs.2000/- with
default stipulation. Against the judgment in question respondent
filed the aforesaid Criminal appeal which was admitted. After
admission of the appeal, respondent filed an· application in
o terms of Section 389(1) of the Code of Criminal Procedure,
1973 (in short the 'Code') read with Sectiun 482 of the Code
for suspension of the judgment of learned Special Judge.
The High Court by order dated 3.2.2006 stayed the con-
viction. According to the appellant, the view expressed by this
E Court in KC. Sareen v. CBI, Chandigarh [2001(6) SCC 584]
was not kept in view. The High Court dismissed that applica-
tion.
4. It is submitted by learned counsel for the appellant that
F the suspension of the conviction is clearly unsustainable. It is
pointed out that the High Court noted that employer had given a
notice for dispensing his services as Sub-Registrar.
5. Learned counsel for the respondent submitted that the
High Court took note of the fact that this was a case where the--
G prayer for suspension of the conviction was to be granted. Un-
less the order of conviction was suspended, the respondent
would have lost his job.
)....
6. In State of Maharashtra v. Gajanan and Another [2003
(12) sec 432], it was noted as follows:
H
CENTRAL BUREAU OF INVESTIGATION, NEW DELHI 21
v. M.N. SHARMA [DR. ARIJIT PASAYAT, J.
Having perused the impugned order as also the judgment A
of this Court in K.C. Sareen's case [2001 (6) SCC 584] we find
the High Court had no room for distinguishing the law laid down
by this Court in K. C. Sareen case supra even on facts. This
Court in the said case held: (SCC p. 589,· para 11)
B·
"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
c
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 o.
servant. is convicted of an offence under the PC Act. No
J
doubt when the appellate
. ' '
challenge of the conviction and sentence for the offence
...
court admits the appeal filed in
under the PC Act, the superior court should normally
suspend the sentence of imprisonment until disposal of E
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." F
.J (emphasis supplied)
In the said judgment of K. C. Sareen's case (supra) this
Court has held that it is only in very exceptional cases that
the court should exercise such power of ·stay in matters G
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 of this Court
that it has ·a duty to look at all aspects including ramification H
22 SUPREME COURT REPORTS [2008] 11 S.C.R.
A of keeping such conviction in abeyance. The High Court,
in our opinion, has not taken into consideration any of the
-·
above factors while staying the conviction. It s.hould also
be noted that the view expressed by this Court in K. C.
Sareen case (supra) was subsequently approved followed
B by the judgment of this Court in Union of India v. Atar
Singh r2003r12; sec 434]. )..
7. In Union of India v. Avtar Singh & Anr. (2003(12) SCC
434) it was held as follows:
c "This appeal is directed against the ·impugned order of
the High Court. The responden_t-_accused, who has been
convicted under Section 409 IPC and Section 13 OF THE
Prevention of Corruption Act, prefe.rred an appeal to the
High Court, which has been entertained. On an application
D being filed under Section 389 of the Code of Criminal
Procedure, the High Court has suspended the conviction
solely on the ground that the non-suspensio·n of conviction
may entail removal of the delinquent government servant
from service."
E 8. In K. C. Sareen's case (supra) it was noted as follows:
"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.
F
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
G 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 )....
r
challenge of the conviction and sentence for the offence
H under the PC Act, the superior court should normally
CENTRAL BUREAU OF INVESTIGATION, NEW DELHI 23
v. M.N. SHARMA [DR. ARIJIT PASAYAT, J.
suspend the sentence of imprisonment until disposal of A
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. B
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
of the republic. Unless those tentacles are intercepted C
and impeded from gripping the normal and orderly
functioning of the public offices, through strong legislative,
executive as well as judicial exercises the corrupt public
servants could even paralyse the functioning of such
institutions and thereby hinder the democratic polity.
Proliferation of corrupt public servants could garner D
momentum to cripple the social order if such men are
allowed to continue to manage and operate public
institutions. When a public servant is found guilty of
corruption after a judicial adjudicatory process conducted
by a court of law, judiciousness demands that he should E
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 ;;ind findings made against such public servants
once again should not even temporarily absolve him from F
such findings. If such a public servant becomes entitled to
hold public office and to continue to db 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. When a G
public servant who is convicted of corruption is allowed to
continue to hold public office, it would impair the morale
of the other persons manning such office, and consequently
that would erode the already shrunk confidence of the
people in such public institutions besides demoralising H
24
SUPREME· COURT RE~ORTS . [2008) 11,S.C.R.
A. the other honest public servants who would either be the
coH~?gues or subordinates o( the convicted person. If
. ho.nest public servants are compelled to take orders from
proclaimed corrupt officers on ·account of the suspension
of the conviction, the fallout would be orie of shaking the
B. system itself. j-IEmce it is riecessal-y that the court should
not aid the public servant who sfands convicted for
- corruption charges to hold only (sic) public office until he
is exonerated after conducting a judicial adjudication at
the appellate orrevisional leveL It is a different matter if a
c. corrupt public officer could continu~ to,hol9 such public
. offi.ce even without the· help-of a court order· suspending
. the conviction.
13. The abov~ poli~y can be acknowl~dged as :necessary
. for the efficacy anti proper functioning of public offfces. If
' .sq, tbe legal position can b~ laid down that ikhen conviction
· is·. on a. corruption charg.e against a· ·public servant the
. appellate court or the revisional court should not suspend
the order of convicti<;>n during the pe'ndency of the appeal
even if .the sentence of imprisonment is suspended. It
E wouldbe ~sublime public policy tha(the.convicted public
ser\iant" is kept under disability of the convictiqn in :spite of
keeping the sentence of.imprisonment in abeyLlnce·til! the
disposal of the appeaf ·or revision_;, · ·· ·
' ;; .
9. In ;State of Haryana v. Hasmat [2004(6.) ,,sec 175] it
F · was noted as follows: . ·
·· "6.' Sect:ion 389 of the Code deals with suspension of
.executiohof ~~htence pending)he:~ppeal.and ·re1ease of
,th.e appellant ·an .bail. There is a distinction between bail
G- and· suspension of sentence. One of the ·essential .
ingredients of Section 389 is the requirement fot the
appeilate court to record reasons· in writing for ordering
suspension of execution of the sentence or order appealed.
If he is in confinem~nt, the said court can dlre~t that he be
released on bail or on his own bond. The requirement of
H
CENTRAL BUREAU OF INVESTIGATION, NEW DELHI 25
v. M.N. SHARMA [DR. ARIJIT PASAYAT, J.
recording reasons in writing clearly indicates that there A
has to be careful co.nsideration of the relevant aspects
and the order directing ·suspension of sentence and grant
of bail should not be passed as a matter of routine."
10. It is to be noted that learned Single Judge while direct-
8
-+ ing suspension of conviction indicated no reasons.
11. Above being the position the order of the learned Single
Judge, directing the suspension/stay of the conviction cannot
stand and is set aside.
12. It is submitted by learned counsel for the appellant that G
hearing of the cases was posted to 22.5.2008. Since the cases
of both M.N. Sharma and Roshan Lal Saini were not posted,
the matter has been adjourned to 22.9.2008. We requestthe
High Court to take up the matter and dispose of the appeal"as
early as practicable, preferably by end of 2008·. · D
;
13. Appeal is allowed.
S.K.S. Appeal allowed.
) .
..
I
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