Judgment:
ORDER
Pradip Mohanty, J.
1. Mr. Asok Mohanty, Sr. Advocate enters appearance for the appellant by filing appearance memo. The same be placed on record. The name of Mr. Asok Mohanty, Sr. Advocate be indicated in the cause list henceforth.
2. This is an application for suspension of conviction and sentence passed against the appellant-petitioner.
3. Heard Mr. Mohanty, learned Sr. Counsel for the appellant and Mr. S.K. Das, learned Additional Standing Counsel (Vigilance).
4. The appellant has been convicted for commission of offence under Section 13(1)(d) punishable under Section 13(2) of the P.C. Act, 1988 and Section 7 of the said Act and sentenced to undergo R.I. for one year and R.I. for six months respectively with an observation that the sentences are to run concurrently. Learned Counsel for the appellant-petitioner submits that the complainant (P.W.3) has turned hostile. P.W.2, who is stated to be an overhearing witness, did not support the prosecution case. In this view of the matter, it cannot be said that the prosecution has established the accusation against the appellant, but the trial court has erroneously recorded an order of conviction against him. As a result the appellant is going to be dismissed from service, for which process has been initiated. He, therefore, submits that the conviction may be suspended since there is every chance of acquittal. He further submits that it is the settled principle of law that while considering the application for suspension of conviction, it is the duty of the Court to see whether there is prima facie evidence against the appellant. In support of his submission, he relies on the decision of the apex Court in Central Bureau of Investigation, New Delhi v. M.N. Sharma AIR 2009 SC 1185.
5. Learned Additional Standing Counsel (Vigilance) vehemently opposes the prayer. He states that the complainant (P.W.) handed over Rs. 2000/- (tainted G.C. notes) to the accused, who accepted the same and kept it in his chest pocket. Therefore, the trial court has not committed any infirmity and illegality in convicting the appellant. In support of his contention he relies on the decision in K.C. Sareen v. C.B.I., Chandigarh (2001) AIR SCW 3339. He also submits that Misc. Case No. 66 of 2009 with the self-same prayer having already been dismissed by order dated 16.03.2009 passed by another Bench of this Court, the present application deserves no consideration.
6. Perused the L.C.R. and decisions cited by the parties. P.W.1 is a witness to the preparation report (Ext.1), P.W.2 is an overhearing witness who corroborated the statement of P.W.1. He specifically stated that the decoy handed over the tainted G.C. notes to the accused-appellant, who accepted and kept the same in his chest pocket. He also stated that he gave the pre-arranged signal. Getting his signal, two constables of the vigilance Department rushed to the room of the appellant and caught hold of both his hands. Simultaneously, the Vigilance Inspector and other members reached there and gave their identity. Thereafter, 20 number of the G.C. notes were recovered from the possession of the appellant. P.W. 10 is the Addl. C.T.O. who corroborated the evidence of P.Ws.1 and 2. P.W.3 is the complainant who turned hostile. But leading questions were put to him and he admitted the above fact. He also admitted in his cross-examination that he handed over the money as per demand of the appellant, who accepted the same and kept it in his shirt pocket. P.Ws.11 and 12, who are the I.Os., corroborated the statement of P.Ws.1, 2 and 3.
7. In K.C. Sareen's case (supra), it has been held that suspension of order of conviction during pendency of appeal or revision is not permissible. It would be a sublime public policy that the convicted Public servant is kept under disability of the conviction in spite of keeping the sentence of imprisonment in abeyance till the disposal of the appeal or revision. It has also been held that 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 demoralizing 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 is necessary that the court should not aid the public servant who stands convicted for corruption charges to hold only public office until he is exonerated after conducting a judicial adjudication at the appellate or revisional level. Therefore, the apex court dismissed the appeal and observed for early hearing of the case. In M.N. Sharma's case (supra), by following the ratio decided in K.C. Sareen the apex court set aside the stay of conviction and remitted the matter back to the High Court for early hearing.
8. On consideration of the aforesaid ratio decided by the apex court, the legal position is that where there is an order of conviction, though the power to suspend such order of conviction 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. It is the duty of the Court to look at all aspects including the ramifications of keeping such conviction in abeyance. 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 the public servants should not even temporarily absolve him from such findings.
9. Keeping in view the principle decided in the above noted cases and in view of analysis of the evidence available on record, this Court is not inclined to allow the prayer of the appellant in the instant case and directs for early hearing of the appeal.
10. The Misc. Case is accordingly dismissed. It is made clear that the observations made herein are confined to the present Misc. Case only.