Indrajit Mahanty, J.
1. The appellant has been convicted by the Special Judge (CBI), Bhubaneswar vide his judgment dated 26-2-2009 passed in T.R.No. 151 of 1999 under Section 13(2) of the Prevention of Corruption Act, 1988 on reaching a finding that the appellant had failed to explain the property worth Rs. 8,36,674.00. The trial Court found that during the relevant period the Appellant had earned income amounting to Rs. 5,74,881.00, whereas the amount of property found in his possession was determined to be worth Rs. 14,11,555.00 and since the appellant had failed to offer any explanation about the property worth Rs. 8,36,674.00; he was held guilty of possessing disproportionate assets and was sentenced to undergo R.I. for three years and to pay a fine of Rs. 50,000.00 and in default, to undergo R.I. for three months.
2. The appellant has filed Criminal Appeal No. 99 of 2009, along with Misc. Case Nos. 309 and 310 of 2009 for bail as well as stay of realization of fine. By order dated 19-3-2009, orders were passed granting the appellant bail as well as directing stay of realization of fine pending disposal of the Criminal Appeal. The appellant has also filed a petition under Section 389 of the Code of Criminal Procedure for stay of conviction and the same was registered as Misc. Case No. 311 of 2009 and the present order is concerned with the same.
3. Sri Gupta, learned Counsel for the appellant submitted that the present case is a fit case where order to say of conviction ought to be passed on the following grounds:
a) Sri Gupta, learned Counsel for the appellant further submitted that the appellant in course of the trial produced adequate evidence to substantiate his claim that the appellant's income from all sources was Rs. 36,98,604.00 and expenditure during his check period was Rs. 10,75,188.43, whereas, the value of the assets acquired by the appellant during the check period was Rs. 8,28,742.00. Therefore, based on the aforesaid assertions submitted that no question of any disproportionate assets should be established. Learned Counsel for the, appellant submitted that the learned trial Court failed jet take into account the, evidence produced by the appellant in course of the trial, therefore resulting in an, illegal order of conviction.
b) Sri Gupta, learned Counsel for the appellant strenuously submitted that the undue; haste shown by the learned, Special Judge in passing the impugned judgment would be abundantly cleared from the fact that the learned Special Judge had given a complete go bye to various heads of income which had been mentioned by the prosecution in the charge-sheet itself. It is submitted that had these heads of income as indicated in the charge-sheet (Annexure-A thereto) been taken into consideration by the Special Judge and not omitted the entire case of the prosecution would have fallen to the ground. Similarly, it is, stated that due to undue haste, shown by the Special Judge, the Special Judge in the impugned judgment has taken into consideration certain heads of expenditure as well as assets which even did not form part of the expenditure (Annexure-B) shown by the prosecution in the charge-sheet.
It is, therefore, submitted that the learned Special Judge has picked and chosen only those portions of evidence of the prosecution which he utilized against the appellant and discarded without justifiable reasons the rest, including the case of the prosecution as indicated in the charge-sheet itself. Learned Counsel however asserted that the judgment is teeming with errors of calculation, addictions and incorrect heading of the accounts and figures mentioned in various documents. It is further asserted that the bulk of the documentary and oral evidence which clearly supports the case of the appellant has been ignored in perfunctory, arbitrary, erroneous and illegal manner.
(c) The case was registered against the appellant under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act on the basis of 'source information'. Searches were conducted at the official and residential premises of the appellant at the residence and business premises of his father-in-law at Bareilly as well as at the parental house of the appellant located at Gwalior, for the check period of 1-1-1982 to 31-7-1996. Based on the search and seizures as noted hereinabove and as a result of the investigation carried out thereon, a charge-sheet was filed which is summarized hereunder:
(i) Income from all sources, Annexure-A .. Rs. 20,52,350.7O(ii) Expenditure, Annexure-B .. Rs. 19,05,956.57(iii) Likely Saving (income minus expense) .. Rs. 01,46,392.13(iv) Total assets found in possession of the .. Rs. 13,76,416.66appellant at the end of the check period,Annexure-C(v) Assets held by the appellant at the begin- .. Rs. 02,43,603.00ning of the check period i.e. till31-12-2001, Annexure-D(vi) Assets acquired during the check period .. Rs. 11,32,013.66(vii) Net disproportionate assets .. Rs. 09,86,421.53(d) It is further submitted that the order of conviction was passed by trial Court with undue haste since the learned Special Judge pronounced the judgment within ten days from closure of argument, i.e. on 26-2-2009 and it is stated that the undue haste should be apparent from the fact that while the prosecution examined 21 witnesses who had all been cross-examined on behalf of the appellant, the defence had examined 16 witnesses including the appellant and the appellant was also subjected to cross-examine by the prosecution. Learned Counsel for the appellant submitted that in toto, there were 37 witnesses and on such all documents running into 100 of pages since 247 documents have been marked as Exhibits on behalf of the prosecution and 83 documents on behalf of the defence and, therefore, submitted that such circumstance could justify the allegation of undue haste by the learned Special Judge in pronouncing the judgment which is challenged on the present appeal.
(e) The appellant possesses educational qualification of B.E. (Hons.), M.E. and Doctor of Engineering and began his professional career in the year 1962 as Technical Assistant in Bokaro Steel Plant. Thereafter, he joined Hindustan Steel Construction Company Limited as well as Kudremukh Iron Ore Company Limited where he worked till February, 1994. It is stated that the appellant joined National Aluminium Company Limited (NALCO) on 24-2-1984 and after having various capacities at Senior Management Level with NALCO, was subsequently promoted to the post of Director in the year 1991 and eventually as Chairman-cum-Managing Director (CMD) from 1993 to 1996.
(f) It is further stated that the annual profit of the NALCO during which the appellant was CMD was in the range of Rs. 600/- crores per annum and the appellant throughout his professional career had not blemished from 1962 till the retirement in 1997 while working with public sector undertakings.
(g) It is further submitted that while the appellant had a bright record and had been accorded various awards for his self same service to the State and the Company in which he has served, certain disgruntled and dissatisfied persons made baseless allegations against the appellant. As a result of which an F.I.R. came to be lodged against the appellant on 18-12-1997 (after retirement from NALCO) alleging that the appellant amassed huge wealth by corrupting illegal means and the assets were disproportionate to his known sources of income.
4. Sri. Gupta, in order to substantiate the aforesaid contentions, placed reliance on Annexure-A to the charge-sheet filed by the prosecution, which contains the computation of income of the appellant. While drawing the Court's attention to the same, he asserted therefrom that various heads of the income indicated by the prosecution, had not been taken into account by the learned Special Judge and had been ignored. The various heads of income ignored as contained in Para-graph-H of the appeal memo are extracted hereunder:
For that in the case in hand the prosecution has taken into account the income of the appellant from the sources known to it and it was therefore not open to the learned Special Judge to altogether leave out the same. The income, admitted by the prosecution in the charge-sheet in Annexure-A and left out by the learned Special Judge are enumerated below in a tabular form:(iv) Net income from HUF Rs. 21,762,75on a/c of Interest, Dividendas per I.T. file.(v) Loan from HUF as per I.T deela- Rs. 1,11,225.00ration for house building.(vi) Income from house in respect of Rs. 2,92,260.00the house at Bangalore from1982-83 (as per declaration ofthe appellant)(vii) Income from Motor Vehicle advance Rs. 80,000.00paid by Nalco vide O.O. No. dated(viii) Income from interest earned in SB Rs. 15,139.14a/c No. 1695 standing in the nameof Gaurav Tamotia and Vivha RaniTamotia (Son & Wife of the appellantin SBIIDCO Tower Branch).(xi) Income from Interest in a/c No. C9/688 Rs. 4,664.86standing in the name of the appellantin SBIIDCO Tower Branch;(xii) Income from Interest in SB a/c No. Rs. 4,147.362/975 standing in the name of theappellant with SBI Morar Branch Gwalior.(xiii) Income from Interim payment in respect Rs. 4,901.25of LIC Policy No. 57420469 on the lifeof the wife of the appellant (ChequeNo. 276122 dt.26-12-1991)(xiv) Income from interim payment in Rs. 4,999.00respect of LIC policy N6; 220003304on the life of the wife of the appellant(Cheque No. 66871 dt. 26-7-1996)(xvii) Income from I.T. Refund. Rs. 864.00(xix) Income from interest in r/o. Rs. 16,036.02TD No. 01291/602360/00 opened on21-5-1992 in SBI, Bangalore City.(xx) Income from interest in r/o TD Rs. 16,036.03No. 01291/602360/00 opened on21-5-1992 in SBI, Bangalore City.(xxi) Income from interest in r/o TD Rs. 5,211.00No. 01292/602360/opened inMay 95 in SBI, Bangalore Citytill July, 96.(xxii) Income from interest in r/o TD Rs. 5,211.00No. 01291/602360/02 opened inMay, 95 in SBI Bangalore' City branchtill July, 96.(xxiii) Maturity value of RD A/c No. 511030 Rs. 25,000.00with Sahid Nagar PO(xxiv) Maturity value of RD A/c. No. 511031 Rs. 25,000.00with Sahid Nagar PO(xxvii) Interest on FDR on Maturity at Rs. 1,220.00Canara Bank in 1983 (purchase, pricetaken as asset at the. beginningcheck period)(xxviii) Maturity value of FDB (in 1983 with Rs. 1,220.00Canara Bank, Bangalore, (Purchasevalue shown as asset at the beginningof check period)(xxix) Maturity value of FDR, at SBI in Rs. 11,350.001983 (Purchase price shown as assetat the beginning of the check period)(xxx) Income from closure of SB A/c at Rs. 6,500.00Canara Bank and New Bank ofIndia at Calcutta.Total Rs. 6,56,741.00.(Rounded)
5. It is further submitted ort behalf of the appellant that the appellant had earned income, from HUF house property amounting to Rs. 3,23,742.75 (which has been mentioned as Item No. 3 under Annexure-A to the charge-sheet) and yet, learned Special Judge came to assess the income of this head at Rs,2,81,842.00. Even apart from that, learned Counsel submitted that whereas learned Special Judge without any justifiable reason ignored the various heads of income as indicated hereinabove, here also similarly, without any basis, added a sum of Rs. 7,02,941.00 as expenditure, even though such expenditure does not find mention either in the charge-sheet (Annexure-B) nor in the prosecution case.
The expenses erroneously and allegedly computed by the learned Special Judge are extracted from Paragraph-N of the appeal memo which is given as hereunder:
Ext. 5 Rs. 13,277.00Ext. 6 Rs. 29,175.00Ext. 7 Rs. 60,000.00Ext. 9 Series Rs. 1,68,866.00Ext. 20 Series Rs. 4,27,288.00-do Rs. 355.00-do Rs. 3,980.00Rs. 7,02,941.00
6. Sri. Gupta in support of his contention submitted that in the present case had the computations contained in charge-sheet been taken as the basis for the prosecution, no case whatsoever is made out against the appellant to substantiate an allegation of disproportionate asset.
It is submitted on behalf of the appellant that while an application under Section 389 Cr.P.C. for stay of conviction is maintainable, yet, it is well settled in law that, the same may be considered' only in an 'exceptional case' and that toot by taking into consideration the 'consequences and/or ramification of the same'.
7. Learned Counsel placed reliance on an additional affidavit filed on behalf of the appellant dated 13-4-2009 whereby, the appellant has stated that in the wake of the trial Court's judgment, he had to resign from the Directorship of Vedanta Resources Plc, London, in which he had been working as a Director since 2004' where he had been paid sizeable remuneration, from which he had tendered his resignation on 6-3-2009. The appellant has also submitted his resignation from his Directorship of a company by the name of IPICOL on 21-3-2009, apart from submitting resignation from the Presidentship and the membership from the Bhubaneswar Music Circle which is the registered society for promotion of Indian Classical Music on 19-3-2009. Apart from the above, the appellant submitted that he is currently on the Board of Hindustan Dor-Oliver Ltd., Mumbai and Jai Balaji Group of Industries, Kolkatta as Non-Executive Director and it is stated that in the event this Court is not persuaded to suspend the order of sentence and conviction, the appellant would be left with no option but to tender his resignation from these companies as well. The appellant has also asserted that he having retired from NALCO since 1997, he has no other source of livelihood and denying the appellant an opportunity to earn his remuneration during the pendency of the appeal, would serve no legal purpose.
8. Sri Gupta, learned Counsel for the appellant stated that it is settled by the Hon'ble Supreme Court in the case of K.C. Sareen v. CBI Chandigarh : (2001) 6 SCC 584 : 2001 Cri LJ 4234, that while dealing with a conviction on a corruption charge against a public servant the appellate Court or the jrevisional Court should not suspend the order of conviction during the pendency of the appeal, even if, the sentence of imprisonment is suspended. It was held that 'it would be a sublime public policy flat the convicted public servant is kept under disability of the conviction spite of keeping the sentence of imprisonment in abeyance till the disposal of the appeal.
The basis for such a direction as noted in the aforesaid judgment is the following:
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 fallout would be one of shaking the system itself.
The aforesaid principle of law has been reiterated from time to time in various subsequent judgments. Iri the case of State of Punjab v. Deepak Mattu : (2007) 11 SCC 319 : (2008 Cri LJ 322); their Lordships of the Hon'ble Supreme Court while analyzing Section 389 Cr.P.C. reiterated the aforesaid finding and directed as follows:
The Court has a duty to look at all aspects including the ramifications of keeping such conviction in abeyance. The Hon'ble Supreme Court also held that '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.
Sri Gupta also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Navjot Singh Sidhu v. State of Punjab and Anr. : (2007) 2 SCC 574 : (2007 Cri LJ 1427), wherein the Hon'ble Supreme Court came to hold that 'Section 389(1) Cr.P.C. confers power not only to suspend the execution of sentence and to grant bail but also to suspend the operation of the order appealed against which means the order of conviction. Thus an appellate Court can suspend or grant stay of order of conviction. But the person seeking stay of conviction should specifically draw the attention of the appellate Court to the consequences that may arise if the conviction is not stayed.' It is further held that 'grant of stay of conviction can be resorted to in rare cases depending upon the special facts of the case.'
In conclusion, Sri Gupta submitted that the present case is an exceptional case, inasmuch as an order of conviction was passed by ignoring not only the case of the prosecution but also the computation in charge-sheet as well. It was further submitted that since the petitioner has already retired from 'public service' even before initiation of the proceeding in the event stay of conviction is granted, it would not result in the petitioner being reinstated in public Office and, therefore, the prayer of the appellant for stay of conviction should be favourably considered, since it would enable the appellant to earn his livelihood.
9. Sri S.K. Padhi, learned Senior Counsel appearing for the CBI submitted that, in the facts of the present case irrespective of all the arguments 'advanced by the learned Counsel, appearing for the appellant, until the criminal appeal is heard, the appellant remains convicted under the P.C. Act. In such facts and circumstances of the case, it is asserted that it is well settled by the Hon'ble Supreme Court in the case of K.C. Sareen : 2001 Cri LJ 4234 (supra) and various judgments that where conviction under the P.C. Act is made, the appellate Court should not grant stay of conviction since the disease of corruption has clearly eroded.
Sri Padhi further submitted that after the judgment of the Hon'ble Supreme Court in the case of K.C. Sareen (supra) passed, there has been no judgment that he has come across in which an order of conviction has been stayed by any appellate Court in a case where the appellant has been convicted under die P.C. Act.
In so far as the present case is concerned, Sri Padhi while admitting that the computation submitted by the prosecution in the charge-sheet had not been fully accepted By the Trial Court, yet he contended that the learned trial Court had only accepted those incomes/expenditure for which satisfactory documentary/oral evidence was lead by the prosecution.
10. In response to the submissions made by Sri S.K. Padhi, learned Counsel for the C.B.I., Sri Gupta, on the other hand, submitted that, while it is a-fact that there is no reported judgment available, where an order of stay of conviction has been granted by the appellate Court in a, case under the P.C. Act, yet, in all the judgments, referred to by hip and as noted hereinabove, the Hon'ble Supreme Court has nowhere stated that the appellate Court does not have power under Section 389 Cr.P.C. to grant order of stay of conviction. In other words, he asserts that in all the aforesaid judgments, the Hon'ble Supreme Court has noted a word of 'caution' for the manner in which powers under Section 389 Cr.P.C. ought to be exercised. Such power ought to be exercised in 'exceptional/rare cases' and the Court exercising such powers must take into account the 'consequences or ramifications' if the order of conviction is not stayed. Learned Counsel placed reliance in the Case of Navjot Singh Sidhu : 2007 Cri LJ 1427 (supra) as an example of a case where power under Section 389, had been exercised by the Hon'ble Supreme Court in favour of the accused and although the said case did not arise under the P.C. Act, yet, it lays down the guidelines/principles under which such power may be exercised.
11. Mr. Gupta submitted that even in the absence of any direct authority on the subject, guidelines/principles enunciated by the Hon'ble Supreme Court are to be strictly followed. Apart from this, he also placed reliance on the following:
A Dictionary of Legal Quotations by Simon James & Chantal Stabbings.
What is the argument on the other side? Only this, that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere.
The law will stand whilst the rest of the world goes on; and that will be bad for both.
Denning LJ, Packer v. Packer (1954) P. 15 at 22
We are not to be deterred by the absence of authority in the books. Our forefathers always held the law was locked in the breast of the Judges, ready to be unlocked whenever the need arose.
Lord Denning M.R., Re P.(G.E.) (An Infant), (1965) 1 Ch. 568 at 583
12. In the light of the aforesaid submissions made by the learned Counsel appearing for the parties and in view of the guidelines laid down by the Hon'ble Supreme Court in the case of K.C. Sareen : 2001 Cri LJ 4234 (supra) as well as other cases, it is clear that, the appellate Court is duly empowered under Section 389(1) to grant stay of conviction but only in an 'exceptional case' where 'the ramification and the consequences' are such which may justify the exercise of such authority. Such power is not to be casually exercised and it is necessary for the Court to look into the 'special facts' of the case if any, and not to grant by way of a routine order. It is apparent from the judgment of the Hon'ble Supreme Court in the case of Navjot Singh Sidhu : 2007 Cri LJ 1427 (supra) that though for the purpose of decision of the prayer made by the appellant for staying or suspending the order of conviction, it is not necessary to minutely examine the merits of the case, nevertheless reliance was placed on the medical evidence, which in its view, had an important bearing on the nature of the alleged offence to have been committed by the appellant and after having analyzed the aforesaid evidence, ultimately granted the relief claimed for by the appellant therein.
13. In the light of the aforesaid case laws and facts as enumerated hereinabove that the present case is a case of disproportionate assets. The charge-sheet under Annexure-A, filed by the prosecution indicated a total income of Rs. 20,52,350.00 and Annexure-B indicated total expenditure of Rs. 19,05,958.00 whereas Annexure-C, indicated assets valued at Rs. 13,76,416.00. The learned trial Court did not accept income amounting to Rs. 6,56,741.00 and also enhanced expenditure by Rs. 7,02,941.00 and only thereafter come to determine disproportionate asset to be valued at Rs. 8,36,674.00.
Even without entering into the question of as to whether the appellant's claimed income amounted to Rs. 36,98,604.00 and his expenditure was Rs. 10,75,188.00, even then, no prima facie justification is found in the impugned judgment, as to why income as indicated by the prosecution was not accepted and in fact, decreased and similarly, as to why expenditure indicated by the prosecution was not accepted and in fact, increased. From this, it would be apparently clear that in the present case, even if only the income as indicated by the prosecution in Annexure-A to the charge-sheet is taken into account, there is little or no disproportionate assets. Alternatively, if reliance is placed on the expenditure statement made by the prosecution under Annexure-B is accepted, even then, there would be hardly any case for disproportionate assets against the appellant. Apart from the above, although various other arguments have been advanced by the learned Counsel for the appellant, I. do not propose to deal with the same in detail at the present stage, since the appeal is pending consideration.
14. Further, a very important fact is that as on date, the filing of the F.I.R. on 18-12-1997, the appellant had already retired from 'public service'. The appellant is no longer in public service since more than last 12 years, therefore, if an order of stay of conviction is passed, there would be no possibility of the appellant being restored to any public post and, therefore, there is no chance of the appellant ever going back to the public office he held in the year 1997. Clearly, the appellant having tendered his resignation from various companies has also stated that he may have to submit his resignation from the Directorship of various other companies unless the order of stay of conviction is passed. I am of the considered view that since the appellant is a highly qualified techno craft, and if he succeeds ultimately, in the appeal, there is no manner in which he could ever be compensated for the loss of livelihood during this period, i.e. during pendency of appeal.
15. Considering the same and the; case laws cited above, I am bf the considered View that this is an 'exceptional or rare' Case in which the order of stay of conviction should be passed taking into consideration the ramifications/consequences of the facts of the present case justify the exercise of authority vested under Section 389(1) of the Code of Criminal Procedure.
Accordingly, in exercise of powers under Section 389(1) Cr.P.C. I direct stay of conviction/sentence during pendency of the appeal. Accordingly, the Miscellaneous case is allowed.