M. Papanna, J.
1. This is an application under Section 389 of the Code of Criminal Procedure filed by the petitioner (appellant) seeking suspension of order of conviction and sentence passed by the learned Special Judge (CBI), Bhubaneswar in T.R. No. 45 of 1993 under Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (in short 'the P.C. Act.')
2. The petitioner was put up on trial before the learned Special Judge (CBI), Bhubaneswar on the accusation that during his incumbency as Branch Manager of Koraput Panchabati Grarnya Bank at Kenduguda during the year 1991 he demanded as well as accepted bribe of Rs. 900/- in total from the loanees such as Pitamber Lim, Dayanidhi Lima, Samuel Lima and Ghani Misal out of loan amount under I.R.D.A. Scheme implemented by the B.D.O., Padampur. After trial, the learned Special Judge (C.B.I.), by a judgment dt. 12.10.2001 convicted the petitioner under Sections 7 and 13(1)(d) read with Section 13(2) of the P.C. Act and sentenced him to undergo R.I. for one year and to pay a fine of Rs. 5000/- and in default to undergo R.I. for three months on each count which is under challenge in the aforesaid appeal. While admitting the appeal on 16.10.2001, this Court also directed the petitioner to be released on bail and stayed realisation of the fine amount. Subsequently, the petitioner moved the present application under Section 389, Cr. P.C. seeking suspension of the impugned order of conviction and sentence passed by the learned Special Judge (C.B.I), Bhubaneswar, as stated above.
3. In support of the application under Section 389, Cr. P.C, the petitioner has relied upon the order dt. 24.8.2001 passed by the then Chief Justice Shri N. Y. Hanumanthappa of this Court (as he then was) in Misc. Case No. 216 of 2001 arising out of Crl. Appeal No. 88 of 2001 suspending order of sentence passed by the learned Special Judge (Vigilance), Bhubaneswar in T.R. Case No. 60 of 1996 till disposal of the Criminal Appeal. The petitioner has also placed reliance on the order dated 13.9.1995 passed by his Lordship Hon'ble Shri R. K. Patra, J. of this Court in Misc. Case No. 310 of 1995 arising out of Crl. Appeal No. 337 of 1994 directing suspension of the conviction of the appellant recorded by the Special Judge (Vigilance), Bhubaneswar. That apart relying on the decision of Ram Narang v. Ramesh Narang and Ors. reported in 1995 (1) SCALE 276, the petitioner has submitted for suspension of the order of conviction and sentence impugned in the appeal.
4. On the other hand, reliance has been placed on (2001) 21 OCR (SC) 325 (K. C. Sereen v. C.B.I., Chandigarh), on behalf of the C.B.I. In support of the contention that the appellate Court, on appeal of a public servant against his conviction and sentence of corruption charges can suspend the sentence during the pendency of the appeal but cannot suspend the conviction.
5. On 7.11.2001, the petitioner appeared before this Hon'ble Court in person when the learned counsel appearing for him and also the learned Addl. Standing Counsel for the Republic of India were on All Orissa Lawyers' strike. Therefore, I heard the petitioner being assisted by his friends who supplied case laws on the subject for adjudication of the matter.
6. Before-proceeding to discuss the case laws on the subject relevant provision of Section 389(1) of the Code of Criminal Procedure may be quoted as below :
'389. Suspension of sentence pending appeal, release of appellant on bail :
Pending any appeal by a convicted person the appellate Court may, for the reasons to be recorded by it in writing, the order that execution of the sentence or order appealed against be suspended and also, if he is in confinement though he be released on bail or at his own bond.'
In the case at hand, the petitioner seeks suspension of both the sentence and conviction recorded against him by the learned Special Judge (C.B.I.), Bhubaneswar. under Section 389, Cr.P.C, there is provision for suspension of sentence pending appeal, but there is no such provision in the Section to suspend conviction of the appellant.
7. In (1995) 8O.C.R. 246 (Benzamin Khira @ Kira v. State of Orissa and Anr.) a view has been taken that provisions of granting bail and conviction and punishment of imposition of sentence are different. Conviction means findings or determination of guilt. Thus, conviction cannot be suspended. In (1995) 9 O.C.R. 353 (Udayanath Behera v. State of Orissa), this Court has ruled that in appropriate cases conviction can be suspended pending appeal. In (2001) 4 Supreme Court Cases 355 (Akhtari Bi (Smt.) v. State of M.P.),their Lordships having borne in mind the circumstances of the case allowed the appeal by setting aside the impugned order with a direction that the order of conviction and sentence against her shall be kept in abeyance and she be released on bail on furnishing personal bond with two sureties and to the satisfaction of the trial Court.
8. In (1995) 3 Supreme Court Cases 377(Deputy Director of Collegiate Education (Admn.), Madras v. S. Nagoor Meera) the Hon'ble Apex Court held as follows :1995 (I) OLR 503
'Clause (a) of the Second proviso to Article 311(2) of the Constitution of India speaks of 'conduct which has led to his conviction on a criminal charge'. It does not speak of sentence or punishment awarded. Merely because the sentence is suspended and/or the accused is released on bail, the conviction does not cease to be operative. Section 389 of the Code of Criminal Procedure. 1973, although empowers the appellate Court to suspend the sentence or the order appealed against or to release the accused on bail and does not expressly speak of suspension of conviction, still in certain situation, the appellate Court may also have the power to suspend the conviction.'
In the case of Ram Maranga v. Ramesh Maranga (1995) 2 Supreme Court Cases, 513. the learned Apex Court has observed that when appeal preferred under Section 374 of the Code, the appeal is against both the conviction and sentence and, therefore, there is no reason to place narrow interpretation on Section 389(1) of the Code not to extend it to an order of conviction.
9. It is equally needed to refer hereto (1996) 5 S.C.C. 329 (State of Tamilnadu v. A. Jaganathan) wherein their Lordships have explained the law as contemplated under Section 389(1). Cr.P.C. regarding suspension of conviction as well as sentence. The High Court of Tamilnadu considered the ambit and scope of the provisions contained in Sections 374 and 389(1). Cr.P.C. and the relevant provisions of law relying on the decision rendered in (1995) 2 S.C.C. 513 (supra).
10. Law on the subject needs to be discussed thoroughly. In (1996) 5 S.C.C. 329 (supra) High Court of Madras has taken a view that the power of the appellate Court or the High Courts to suspend the conviction or sentence is always inherent and can be exercised at any stage subject to the condition that the appellate Court should be approached and satisfied that the reasonings to be recorded in writing and further if any one wants to stop the proceeding^ which has been initiated for disqualification or removal from service or reduction in rank in respect of a public servant, one has to look into the normal conduct from their involvement in such a case and only when the Court is satisfied with such conduct, then the remedy provided under different statutes cannot at all be stopped. After taking the aforesaid view and- on consideration of the fact that the respondent will lose the meagre stipend, if the prayer for suspending the conviction during the pendency of the revision it, not granted, the High Court passed the impugned orders suspending the conviction as well as the sentence awarded to the respondents. Against these orders the State of Tamil Nadu went on appeal to the Apex Court before whom, it was argued on behalf of the State that the High Court of Madras passed the impugned order relying on the decision in the case of Rama Naranga wherein the Apex Court took the view with appropriate cases only the conviction and sentence can be suspended in exercise of power under Section 482. Cr.P.C.
11. Therefore, the Apex Court after going through the decision referred to above held that the decision relied upon by the High Court of Madras has no application to the facts of the cases before them. Their Lordships have further observed that in Rama Naranga's case the conviction and sentences were suspended on the reasoning that if the conviction and sentences are not suspended the damage would be caused which could not be undone if ultimately the revision of the appellants of that case was allowed. So in the reported case, their Lordships found that in the event the revisions against their conviction and sentences are allowed by the High Court, the damage, if any caused to the respondents with regard to payment of stipend etc. can well be revived and made good to the respondents. In such a view of the matter, their Lordships held that if such trifling matters are taken into consideration, then every conviction will have to be suspended pending appeal or revision involving the slightest disadvantage to a convict. In such a case, on the opinion of their Lordships, the discretionary power to suspend the conviction either under Section 389(1) or under Section 482, Cr.P.C. should not have been exercised. Ultimately, their Lordships maintained the order of the High Court with regard to suspension of sentence and set aside the order of suspension of conviction.
12. While summing up the discussion made above, on the power of the appellate Court under Section 389(1) of the Code of Criminal Procedure, on appeal of a public servant against his conviction and sentence, it is of paramount importance to refer to a recent decision of the Apex Court in the case of K. C. Sereen v. C.B.I., Chandigarh reported in (2001) 21 O.C.R. (SC) 325, wherein their Lordships have explained the power of appellate Court on appeal of a public servant against his conviction and sentence on corruption charges and held that during the pendency of the appeal sentence can be suspended but not the conviction.
13. In paragraph-11 of the reported decision, their Lordships have laid down1 legal position as below :
'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 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 servant is convicted of an offence under the Act. No doubt, when the appellate Court admits the appeal filed in challenge of the conviction and sentence for the offence under the PC Act, the superior Court should normally suspend the sentence of imprisonment until disposal of 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, de hors the sentence of imprisonment as a sequal thereto, is a different matter.'
14. In the case of K. C. Sareen (supra), the Apex Court, as revealed from the decision, was constrained to hold as follows:
'When a 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 the other honest public servants who would either be the colleagues or subordinates of the convicted person. If honest public servants are compelled to take orders from proclaimed corrupt officers on account, of the suspension of the conviction, the fall-out 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 any public office until he is exenorated after conducting a judicial adjudication at the appellate or revisional level.'
15. No doubt in the case of Ram Narang v. Ramesh Narang (supra) the High Court suspended the sentence as well as the conviction passed against the public servant in exercise of power under Section 389(1) of the Code of Criminal Procedure but on a motion made by the State before the Apex Court, such order of suspension of conviction was quashed by two Judges' Bench of the Apex Court with a remark that in such cases the discretionary power to order suspension of conviction either under Section 389(1) or even under Section 482 of the Code of Criminal Procedure should not have been exercised.
16. In the present case, the appellant while working as a Branch Manager of Koraput Panchabati Gramya Bank at Kenduguda demanded and accepted bribe of Rs. 900/- from the loanees and that being so, having been convicted and sentenced of corruption charges, the sentence recorded against him can be suspended but not the conviction in the light of the dictum laid down by the Apex Court but this Court has nothing to say if the appellant, continues to hold such public office even without the help of the Court's order suspending conviction.
17. In the ultimate result, the order of sentence appealed against is suspended but not the conviction.
Accordingly the Misc. Case is allowed in part.