STATE OF MAHARASHTRA THROUGH CBI, ANTI CORRUPTION BRANCH, MUMBAIversusBALAKRISHNA DATTATRYA KUMBHAR

                     [2012] 9 S.C.R. 601


     STATE OF MAHARASHTRA THROUGH CBI, ANTI                          A
           CORRUPTION BRANCH, MUMBAI
                                v.
          BALAKRISHNA DATTATRYA KUMBHAR
            (Criminal Appeal No. 1648 of 2012)
                                                                     B
                     OCTOBER 15, 2012

     [DR. B.S. CHAUHAN AND FAKKIR MOHAMED
               IBRAHIM KALIFULLA, JJ.]

     Code of Criminal Procedure, 1973 - s. 389(1) -                  C
Suspension of conviction - Conviction of public servant uls.
 13(2) rlw s. 13(1 )(e) of Prevention of Corruption Act - Pursuant
thereto show-cause notice from employer for removal from
service - Application for suspension of conviction - Allowed
by High court - On appeal, held: Power to suspend the                D
conviction can be exercised only in exceptional case - High
Court was not justified in suspending the conviction in a case
involving corruption - Such order could not be passed to save
the job of the appellant - It was not such a case where
damage, if done, could not be undone - Prevention of                 E
Corruption Act, 1988 - s. 13(2) rlw s.13(1)(e).

     The respondent was convicted u/s. 13(2) r/w s.
13(1)(e) of Prevention of Corruption Act, 1988. Pursuant
thereto, he was put under suspension and show cause
notice was issued for his dismissal from service in view             F
of provisions of r. 11 of CCS (CCA) Rules, 1965. The
respondent filed an application u/s. 389(1) Cr.P.C. for
suspension of his conviction during pendency of his
appeal. The application was allowed. Hence the present
appeal.                                                              G

    Allowing the appeal, the Court

    HELD: 1. The appellate court in an exceptional case,
                              601                                    H
    602    . SUPREME COURT REPORTS              [2012] 9 S.C.R.


A may put the conviction in abeyance along with the
  _sentence, but such power must be exercised with great
  circumspection and caution, for the purpose of which, the
  applicant must satisfy the court as regards the evil that
   is likely to befall him, if the said conviction is not
B suspended. The court has to consider all the facts as are
   pleaded by the applicant, in a judicious manner and
  examine whether the facts and circumstances involved
   in the case are such, that they warrant such a course of
  action by it. The court additionally, must record in writing,
c its reasons for granting such relief. Relief of staying the
   order of'conviction cannot be granted only on the ground
   that an employee may lose his job, if the same is not
   done. [Para 12) [608-G-H; 609-A-B]                           -

       2. Corruption is not only a punishable offence but
D also undermines human rights, indirectly violating them,
  and systematic corruption, is a human rights' violation in
  itself, as it leads to systematic economic crimes. Thus, in
  the aforesaid backdrop, the High Court should not have
  passed the order of sentence, in a case involving
E corruption. It was certainly not the case where damage
  if done, could not be undone as the employee/respondent
  if ultimately succeeds, could claim all consequential
  benefits. [Para 14) [609-E-G]

F      Rama Narang v. Ramesh Narang and Ors. (1995) 2
  SCC 513:1995 (1) SCR 456; State of Tamil Nadu v. A.
  Jaganathan AIR 1996 SC 2449:1996 (3) Suppl. SCR 572 ;
  K.C. Sareen v. Central Bureau of/nvestigation, Chandigarh
  AIR 2001 SC 3320: 2001 (1) Suppl. SCR 224; State of
G Maharashtra v. Gajanan and Anr. AIR 2004 SC 1188; Union
  of India v. Afar Singh and Anr. (2003) 12 SCC 434; Ravikant
  S. Patil v. Savabhouma S. Bagali (2007) 1 SCC 673:2006(8)
  Suppl. SCR 1156 ; Navjot Singh Sidhu v. State of Punjab
  and Anr. AIR 2007 SC 1003: 2007 (1) SCR 1143; State of
H
STATE OF MAHARASHTRA THR. C.B.I., v. BALAKRISHNA 603
             DATTATRYA KUMBHAR
Punjab v. Navraj Singh AIR 2008 SC 2962: 2008 (10) SCR          A
924; CBI, New Delhi v. Roshan Lal Saini AIR 2009 SC 755
- relied on.

                     Case Law Reference:
     1995(1) SCR 456            Relied on          Para 6       B
    1996 (3) Suppl. SCR 572 Relied on              Para 7

    2001 (1) Suppl. SCR 224 Relied on              Para 8
    AIR 2004 SC 1188            Relied on          Para 9       c
    (2003) .12 sec 434          Relied on          Para 9
    2006(8) Suppl. SCR 1156 Relied on              Para 10
    2007 (1) SCR 1143           Relied on          Para 11
                                                                D
    2008 (10) SCR 924           Relied on          Para 11
    AIR 2009 SC 755             Relied on          Para 11
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1648 of 2012.                                               E

     From the Judgment & Order dated 08.04.2008 of the High
Court of Judicature at Bombay in Criminal Application No. 157
of 2008 in Criminal Appeal No. 1243 of 2007.

      P.P. Malhotra, ASG, Prakriti Purnima, B. Krishna Prasad   F
for the Appellant.

    Sushil Karanjkar, Nikhilesh Kumar, K.N. Rai for the
Respondent.
                                                                G
    The Judgment of the Court was delivered by

     DR. B.S. CHAUHAN, J. 1. This Criminal Appeal has been
preferred against the impugned judgment and order dated
8.4.2008 in Criminal Application No. 157 of 2008 in Criminal
Appeal No. 1243 of 2007 passed by the High Court of Bombay,     H
    604      SUPREME COURT REPORTS                 [2012] 9 S.C.R.

A   by way of which, the High Court passed an order of suspension
    of the conviction of the respondent under Section 13(2) r/w
    Section 13(1 )(e) of the Prevention of Corruption Act, 1988
    (hereinafter referred to as the ·Act 1988'), passed by the
    Special Judge, vide order dated 15.10.2007 in Special Case
B   No. 93 of 2000.

         2. The facts and circumstances giving rise to this appeal
    are as follows:

         A) On 8.1.1999, Special Case No. 93 of 2000 in R.C. No.
C   39-A of 1999 was registered against the respondent, the then
    Superintendent of Central Excise, Mumbai, for the offences
    punishable under Section 13(2) r/w 13(1)(e) of the Act 1988,
    alleging that he possessed assets disproportionate to his
    disclosed source of income which was to the extent of Rs.
D   7,64,368/-.

         B) After completing the investigation of the case, the
    investigating agency filed a charge-sheet dated 27.12.2000,
    under the said provisions of the Act, 1988. The trial court
E   concluded the trial and convicted the respondent under the said
    provisions and awarded him a sentence of two years, along
    with a fine of Rs.1 lakh and, in default, to undergo imprisonment
    for a further period of three months, vide judgment and order
    dated 15.10.2007.

F      C) Subsequent to his conviction, the respondent was put
  under suspension by the competent authority vide order dated
  1.11.2007 and was served a show-cause notice dated
  25.1.2008, to explain that in view of his conviction for the
  offence punishable under the Act 1988, why he shou:d not be
G dismissed from service, in view of the provisions of Rule 11 of
  CCS (CCA) Rules, 1965. The respondent was given 15 days
  time to make his representation against the said show cause
  notice.

          D) The respondent approached the High Court by filing an
H
STATE OF MAHARASHTRA THR. C.B.I., v. BALAKRISHNA 605
   DATIATRYA KUMBHAR [DR. B. S. CHAUHAN, J.]
application under Section 389(1) of the Code of Criminal            A
Procedure 1973, (hereinafter referred to as the 'Cr.P.C.')
requesting that during the pendency of his appeal against the
said impugned judgment, the order of conviction against him
be suspended. The said application of suspension of
conviction has been allowed vide impugned order dated               B
8.4.2008.

     Hence, this appeal.

     3. Shri P.P. Malhotra, learned ASG, appearing on behalf
of the appellant, submitted that the High Court could exercise      C
its power under Section 389(11 Cr.P.C., for suspension of such
conviction only in the rarest of rare case. In the instant case,
as the respondent was a public servant and had been convicted
on charges of corruption, the High Court was not justified in
passing the said order of suspension of conviction. The High        D
Court should have considered the ramifications of such
suspension, as such an order would, no doubt demoralise the
employers and also other public servants. Under no
circumstance, does the case of the respondent fall under the
exceptional circumstances under which, such an order would          E
be warranted. Thus, it is nothing but an abuse of the
adjudicatory process of law and justice demands that he should
be treated as a corrupt and guilty person, unless he is proved
to be innocent. The appeal deserves to be allowed and the
impugned judgment and order is liable to be set aside.              F

     4. On the contrary, Shri Sushi! Karanjkar, learned counsel
appearing on behalf of the respondent, has vehemently
opposed the appeal contending that the respondent did not
have disproportionate assets as alleged. There has been a
serious error on the part of the trial court in making such         G
assessment and convicting the respondent on the basis of the
same. In fact, it is the income of his wife which was duly proved
before the statutory authorities, under the Income Tax Act 1961.
Subsequent to the conviction of the respondent, the appeal was
allowed by the Income Tax Appellate Tribunal, Mumbai, vide          H
    606      SUPREME COURT REPORTS                    [2012] 9 S.C.R.


A order dated 17.3.2009 wherein, it was accepted that the said
    amount, belonged to respondent's wife. The High Court hence,
    committed no error in passing the impugned order. The special
    leave petition also, was filed at a belated stage and the said
    impugned order was passed over 4-1/2 years ago. The appeal
B   of the respondent is in the list of matters listed for final hearing
    before the Bombay High Court, and thus, no interference is
    required. The appeal is liable to be dismissed.

          5. We have considered the rival submissions made by
C   learned counsel for the parties and perused the records.

       6. In Rama Narang v. Ramesh Narang & Ors., (1995) 2
  SCC 513, this Court dealt with the said issue elaborately and
  held that if, in a befitting case; the High Court feels satisfied
  that the order of conviction needs to be suspended, or stayed,
D so that the convicted person does not have to suffer from a
  certain disqualification, provided for by some other statute, it
  may exercise its power in this regard because otherwise, the
  damage done cannot be undone. However, while granting such
  stay of conviction, the court must examine all the pros and cons
E and then, only if it feels satisfied that a case has intact been
  made out for grant of such an order, it may proceed to do so
  and even while doing so, it may, if it so considers it appropriate,
  impose ~uch conditions as are deemed appropriate, to protect
  the interests of the other parties. Further, it is the duty of the
F applicant to specifically invite the attention of the appellate court
  as regards the consequences, which are likely to follow, upon
  grant of such stay, so as to enable it to apply its mind fully to
  the issue, since under Section 389(1) Cr.P.C., the court is
  under an obligation to support its order in a manner provided
G therein, the same being, "for the reasons to be recorded by it
  in writing".

        7. In State of Tamil Nadu v. A. Jaganathan, AIR 1996 SC
    2449, this Court dealt with a case wherein the High Court
    stayed the order of conviction for the sole reason that, in
H   absence of such a stay, the accused was likely to lose his job.
 STATE OF MAHARASHTRA THR. C.B.1., v. BALAKRISHNA607
    DATTATRYA KUMBHAR [DR B. S. CHAUHAN, J.]
This Court reversed the impugned order therein observing:            A

     " ...... the High Court, though made an observation but did
     not consider at all the moral conduct of the respondent.. ...
     who was the Police Inspector. ... had been convicted under
     Sections 392, 218 and 466 l.P.C. while the other
                                                                     8
     respondents, who are also public servants, have been
     convicted under the provisions of the Prevention of
     Corruption Act. In such a case, the discretionary power to
     suspend the conviction either under Section 389 or under
     Section 482 Cr.P.C. should not have been exercised. The
     order impugned, thus, cannot be sustained."
                                                                     c
    8. In K. C. Sareen v. Central Bureau of Investigation,
Chandigarh, AIR 2001 SC 3320, this Court examined a case
wherein a government servant who had been convicted under
the provisions of the Prevention of Corruption Act would lose D
his job in the event that the convictior was not stayed. The Court
held that when a public servant is found guilty of corruption by
a Court, he has to be treated as corrupt until he is exonerated
by .a superior Court in appeal/revision. Mere stay of the
conviction during the pendency of the appeal should not confer E
any benefit upon such an employee, for the reason that if such
a public servant is permitted to hold office and to perform official
acts (unless he is a~solved from such findings by a superior
Court), public interest may suffer tremendously. It may also
impair the moral of other persons manning such office and may F
farther, erode the confidence of the people in public institutions,
besides of course, demoralising all other honest public servants.

     9. In State of Maharashtra v. Gajanan & Anr., AIR 2004
SC 1188, this Court reiterated a similar view, placing reliance
upon the judgment in K.C. Sarin (supra) and Union of India v.        G
Atar Singh & Anr., (2003) 12 SCC 434. In the latter case, this
Court held that an order of conviction should not be suspended
merely on the ground that non-suspension of such conviction
may entail the removal of the government servant from service.
                                                                     H
    608      SUPREME COURT REPORTS                   [2012] 9 S.C.R.

A       10. In Ravikant S. Patil v. Savabhouma S. Bagali, (2007)
    1 SCC 673, this Court held as under:-

          "lt deserves to be clarified that an order granting stay of
          conviction is not the rule but is an exception to be resorted
          to in rare ca~es depending upon the facts of a case.
B
          Where the execution of the sentence is stayed, the
          conviction continues to operate. But where conviction itself
          is stayed, the effect is that the conviction will not be
          operative from the date of stay. An order of stay, of course,
          does not render the conviction non-existent, but only non-
c         operative ....... All these decisions, while recognizing the
          power to stay conviction, have cautioned and clarified that
          such power should be exercised only in exceptional
          circumstances where failure to stay the conviction, would
          lead to injustice and irreversible consequences."
D
                                                   (emphasis added)

       11. In Navjot Singh Sidhu v. State of Punjab & Anr., AIR
  2007 SC 1003, this Court held that the Appellate Court can
E suspend "an order appealed against", i.e. an order of
  conviction, only if the convict specifically establishes the
  consequences that may follow if the operation of the said order
  is not stayed. Stay of conviction must be granted only in a rare
  case and that too, only under special circumstances.

F   (See also: State of Punjab v. Navraj Singh AIR 2008 SC 2962;
    and CBI, New Delhi v. Roshan Lal Saini, AIR 2009 SC 755).

       12. Thus, in view of the aforesaid discussion, a clear
  picture emerges to the effect that, the Appellate Court in an
G exceptional case, may put the conviction in abeyance along with
  the sentence, but such power must be exercised with great
  circumspection and caution, for the purpose of which, the
  applicant must satisfy the Court as regards the evil that is likely
  to befall him, if the said conviction is not suspended. The Court
H has to consider all the facts as are pleaded by the applicant,
STATE OF MAHARASHTRA THR. C.B.I., v. BALAKRISHNA 609
   DATIATRYA KUMBHAR [DR. B. S. CHAUHAN, J.]
in a judicious manner and examined whether the facts and              A
circumstances involved in the case are such, that they warrant
such a course of action by it. The court additionally, must record
in writing, its reasons for granting such relief. Relief of staying
the order of conviction cannot be granted only on the ground
that an employee may lose his job, if the same is not done.           B

     13. The instant case is required to be examined in light of
the aforesaid settled legal propositions. The relevant part of the
impugned order reads as under:

    "As the applicant would suffer serious prejudice on account C
    of order of dismissal, in my opinion, the applicant is
    justified in applying to this Court for suspending the order
    of conviction so that the Department shall not precipitate
    the matter further. The applicant through counsel fairly
    submits that relying on this order, the applicant will not D
    claim further relief of setting aside the order of suspension
    which is already operating against the applicant passed
    by the Department on 1st November, 2007."

      14. The aforesaid order is therefore, certainly not
sustainable in law if examined in light of the aforementioned E
judgments of this Court. Corruption is not only a punishable
offence but also undermines human rights, indirectly violating
them, and systematic corruption, is a human rights'. violation in
itself, as it leads to systematic economic crimes. Thus, in the
aforesaid backdrop, the High Court should not have passed the F
said order of suspension of sentence in a case involving
corruption. It was certainly not the case where damage if done,
could not be undone as the employee/respondent if ultimately
succeeds, could claim all consequential benefits. The
submission made on behalf of the respondent, that this Court G
should not interfere with the impugned order at such a belated
stage, has no merit for the reason that this Court, vide order
dated 9.7.2009 has already stayed the operation of the said
impugned order.
                                                                  H
    610      SUPREME COURT REPORTS                 [2012) 9 S.C.R.


A        15. Thus, in view of the above, the appeal is allowed and
    the impugned order dated 8.4.2008 is hereby, set aside.

        Before parting with the case, we clarify that the
    observations made in this judgment will not adversely affect the
    case of the respondent at the time of final disposal of his
8
    appeal.

    K.K.T.                                        Appeal allowed.