Pralhad Sitaram Yeole Vs. State of Maharashtra - Court Judgment

Excerpt:
criminal - sections 7 and 13 (1) (d) and 13 (2) of prevention of corruption act, 1988 - applicant was electricity board employee - found guilty of illegal gratification - convicted under sections 7 and 13 (1) (d) read with 13 (2) passed by special judge - high court while admitting appeal suspended execution of sentence - application for suspension for conviction - likelihood of termination of services cannot be rule out - petitioner would suffer irreparable injury - prima facie case made out for suspension of order of conviction. - - employees service regulation provides that no person shall be eligible to continue in service of the board if he is convicted by any court for any criminal offence and the services of an employee so convicted shall be liable for termination without the necessity of enquiry or any disciplinary action, proceedings, unless the competent authority viz, the authority higher than the appointing authority, at its discretion, if satisfied for reasons to be recorded in writing, that the offence is either technical or not of a grave nature or that there are other redeeming reasons, may relax the provisions of the regulations. the respondents then approached the high court in criminal revision accompanied with an application under section 389(1) of criminal procedure code for suspension of conviction as well as the sentences. on consideration of the fact, that the respondents would loose the stipend, if the prayer for suspending the conviction during the pendency of the revisions was not granted, the high court passed order suspending the conviction as well as sentences awarded to the respondents. ruling that the decision in rama narang's case had no application to the facts of the said case, the apex court held that in the event the revision applications against the conviction and sentence of the four respondents were to be allowed by the high court, the damage, if any, caused to the respondents with regard to the payment of stipend could well be revived and made good to the respondents and in those type of trifling matters could not be taken into consideration, as otherwise, every conviction would have to be suspended pending appeal and revision involving even slightest disadvantage to a convict. the best and probably the only guide, therefore, for suspension of sentences in a criminal appeal is the probability of the appeal being allowed. holding so, the bail was refused to the appellants/accused in the absence of a good prima facie case on merits. in a fit case if the high court feels satisfied that the order of conviction needs to be suspended or stayed so that the convicted persons does not suffer from a certain disqualification provided for in any other statute, it may exercise the power because otherwise the damage done cannot be undone; but while granting a stay of suspension of the order of conviction the court must examine the pros and cons and if it feels satisfied that a case is made out for grant of such an order, it may do so and in so doing it may, if it considers it appropriate, impose such conditions as are considered appropriate to protect the interest of the shareholders and the business of the company. b, employees service regulations and the copies of the circulars issued by the board from time to time and placed on record, undoubtedly discloses that on conviction for criminal offence of any employee of the board, his services can be terminated without there being any necessity of undergoing disciplinary proceedings against such person, unless the higher authority, in its discretion, if satisfied for the reasons to be recorded in writing, relaxes the provisions contained in section 10(a) regarding termination of employee on such ground. jagannathan as well as in rama narang's case read with the decision of the division bench of this court in laxman malhari sable's case, it is apparent that while considering the application for stay of order of conviction, the most relevant factor which is to be considered is whether the damage that would be caused to the applicant in the absence of suspension of the order of conviction could be undone. it is contended that if the appellant had indeed, repaired the meter as alleged by the prosecution, when the trap was laid, he would have been found in possession of some instruments like screwdrivers, nose-pliers etc. , entrusted with the work of preparing bills and prima facie, materials disclosing absence of any instrument with the petitioner at the relevant time when the petitioner is said to have repaired the meter, and if the contention as sought to be raised on behalf of the petitioner is found to be good on detail appreciation of materials on records, certainly, in the circumstances, it cannot be said the petitioner would not suffer irreparable injury in case of the termination of his services on account of conviction by the special judge in special case no.r.m.s. khandeparkar, j.1. heard the learned advocates for the parties. perused the records.2. this is an application for suspension of the order of conviction dated 24-8-2000 passed by the special judge, jalgaon in special case no. 6/98 in view of the pendency of the criminal appeal no. 371/2000 in this court.3. facts in brief, relevant for the decision are that the petitioner has filed criminal appeal no. 371/2000 against the judgment and order dated 24-8-2000 passed by the special judge, jalgaon in special case no. 6/1998. by the said judgment and order, the special judge has convicted the petitioner under sections 7 and 13(1)(d) read with section 13(2) of the prevention of corruption act and has sentenced him to under rule i. for one year besides, fine of rs. 3,000/- for offence punishable under section 7 and rule i. for three years and fine of rs. 5,000/- for offence punishable under section 13(2) of the said act. the appeal filed against the said judgment and order has been admitted by this court on 8th september, 2000 and while admitting the appeal, has suspended the execution of the sentence imposed by the special judge in the said case. by the present application, the petitioner is praying for suspension of the order of conviction passed in the said judgment.4. it is the case of the petitioner that he is employee of m. s. e. b. and is in service since 1978. regulation 10(a) of the m.s.e.b. employees service regulation provides that no person shall be eligible to continue in service of the board if he is convicted by any court for any criminal offence and the services of an employee so convicted shall be liable for termination without the necessity of enquiry or any disciplinary action, proceedings, unless the competent authority viz, the authority higher than the appointing authority, at its discretion, if satisfied for reasons to be recorded in writing, that the offence is either technical or not of a grave nature or that there are other redeeming reasons, may relax the provisions of the regulations. it is further the case of the petitioner that the m.s.e.b. vide its circular dated 24-11-1992, had issued certain instructions stating inter alia that upon conviction of an employee, the provisions under service regulation no. 10(a) are to be invoked and action to terminate the services of such employee should be taken forthwith. instruction no. (ii) states that in case such employee gets acquitted in appeal in the appellate court, he should be reinstated in service but he shall not be eligible for any payment from the date of termination of his service to the date of his reinstatement on the principle of no work, no pay. it is the case of the petitioner that a further circular dated 8-4-1993 issued by m.s.e.b., it has been further clarified that in case where employees have appealed to the higher court and the higher court has stayed the sentence, the convicted employee may be continued in service till vacation of the stay or till final outcome of the court case. but by latest circular dated 28-9-2000, m.s.e.b. directed all the appointing authorities to review all pending cases wherein an employee under conviction has appealed to the higher court and the higher court has admitted the appeal and suspended the sentence and released the accused on bail, and in such cases, to take administrative action to terminate services of such employees immediately as per the guidelines laid down under the circular dated 24-11-1992. in view of the circular dated 28-9-2000, it is the contention of the petitioner that the steps are being taken to terminate the services of the petitioner and he apprehends that order of termination is likely to be issued on any day. according to the petitioner, in view of the said circular dated 28-9-2000, exemption from termination on account of conviction and sentence for any criminal offence, available to the employees of the m.s.e.b. in view of the circular dated 8-4-1983 is no more available unless along with sentence imposed upon the petitioner, the conviction of the petitioner by the special judge in special case no. 6/98 is also stayed. in support of the case of the petitioner, the learned advocate for the petitioner sought to rely upon the decision of the division bench of this court in the matter of laxman malhari sable v. state of maharashtra reported in : 1997(2)mhlj780 .on the other hand, while opposing the application placing reliance upon the decision of allahabad high court in the matter of bhola and ors. v. state reported in the learned additional public prosecutor has submitted that there is no case for staying the order of conviction as the conviction is in relation to the offence punishable under the provisions of prevention of corruption act and considering the seriousness of the offence, this is not a fit case to exercise discretion in favour of the petitioner. attention has also been drawn to the decision of the apex court in the matter of state of tamil nadu v. a. jagannathan reported in : 1996crilj3495 .5. in state of tamil nadu v. a. jagannathan, those were four appeals by government employees. all the four employees were convicted by the j.m.f.c., erode for various criminal offences and ordered to undergo various sentences. the said conviction and sentences were affirmed by the sessions judge/special judge, erode. the respondents then approached the high court in criminal revision accompanied with an application under section 389(1) of criminal procedure code for suspension of conviction as well as the sentences. the high court, relying upon the decision of the apex court in the matter of rama narang v. ramesh narang reported in : [1995]1scr456 , took the view that for the reasons to be recorded in writing by the appellate court, the conviction or order of sentence can be suspended during the pendency of the same. on consideration of the fact, that the respondents would loose the stipend, if the prayer for suspending the conviction during the pendency of the revisions was not granted, the high court passed order suspending the conviction as well as sentences awarded to the respondents. against those orders, the state had filed the said appeals. ruling that the decision in rama narang's case had no application to the facts of the said case, the apex court held that in the event the revision applications against the conviction and sentence of the four respondents were to be allowed by the high court, the damage, if any, caused to the respondents with regard to the payment of stipend could well be revived and made good to the respondents and in those type of trifling matters could not be taken into consideration, as otherwise, every conviction would have to be suspended pending appeal and revision involving even slightest disadvantage to a convict. in other words, the apex court therein has held that it is not that in each and every case and more particularly, in trifling matters, that the convict would be entitled to seek discretionary relief in the form of suspension of conviction and sentence imposed by the court below.6. in bhola and ors. v. state (supra), it has been held by the learned single judge of the allahabad high court that normally, the grounds for suspending the execution of a sentence pending appeal should be the same on which ultimately the sentences are set aside in appeal, i.e. the merits of the case. the most relevant factor, therefore, for the exercise of power of suspending the sentence is the degree of probability the appeal stands of being finally allowed. of course, the entire matter cannot be considered at the stage of bail and the degree of probability, has to be determined on the basis of a prima facie satisfaction and other factors relevant for the enquiry and it will include such ancillary matters as, the nature and gravity of the offence, and the age and health of the accused. it has been further held that remaining of the accused on bail or in jail during trial in the court below cannot, of course, be a relevant reason for suspending or not the execution of the sentence, because this circumstance has no nexus with the execution or suspension of sentence and, after conviction has been recorded, this circumstance stands neutralised. similarly, the period of extent of the sentence or the quantum of punishment cannot be a relevant reason for its own suspension and it would be a relevant factor only if the sentence can, prima facie, be shown to be illegal, improper or excessive, and not otherwise. simultaneously, it has been also held that the principle of irreparable injury on which the execution of a civil decree is suspended pending appeal, can also not be made applicable to substantive sentences of imprisonment, as in such cases the injury will always be irreparable. the best and probably the only guide, therefore, for suspension of sentences in a criminal appeal is the probability of the appeal being allowed. that was a case wherein the appellants were convicted under section 396 of indian penal code. they had applied for bail pending appeal. the appellants, in order to get bail, have to make out a case for exercise of appellate court's discretion by showing that the reasons exists for suspension of the sentence. the above observations were made by the learned single judge of allahabad high court while rejecting the application for bail filed by the appellants therein. it was held that the offence with which the appellants/accused were charged in the said case, was one which was likely to be repeated against public in general. dacoity brings economic gain to the dacoit and is, or is likely to be, carried on as an occupation to earn a living and accumulate wealth. it is not an offence which comes to an end on being committed once. it would not for those reasons be appropriate unless exonerating circumstances exist, to grant bail in cases of dacoity. holding so, the bail was refused to the appellants/accused in the absence of a good prima facie case on merits.7. the apex court in rama narang v. ramesh narang (supra), has held that :'if the order of conviction is to result in some disqualification of the type mentioned in section 267 of the companies act we see no reason why we should give a narrow meaning to section 389(1) of the code to debar the court from granting an order to that effect in a fit case. the appeal under section 374 is essentially against the order of conviction because the order of sentence is merely consequential thereto; albeit even the order of sentence can be independently challenged. if it is harsh and disproportionate to the established guilt. therefore, when an appeal is preferred under section 374 of the code, the appeal is against both the conviction and sentence and therefore, we see no reason to place a narrow interpretation on section 389(1) of the code not to extend it to an order of conviction. although that issue in the instant case recedes in the background because high courts can exercise inherent jurisdiction under section 482 of the code if the power was not to be found in section 389(1) of the code.'it has been further held by the apex court that:'in a fit case if the high court feels satisfied that the order of conviction needs to be suspended or stayed so that the convicted persons does not suffer from a certain disqualification provided for in any other statute, it may exercise the power because otherwise the damage done cannot be undone; the disqualification incurred by section 267 of the companies act and given effect to cannot be undone at a subsequent date if the conviction is set aside by the appellate court. but while granting a stay of suspension of the order of conviction the court must examine the pros and cons and if it feels satisfied that a case is made out for grant of such an order, it may do so and in so doing it may, if it considers it appropriate, impose such conditions as are considered appropriate to protect the interest of the shareholders and the business of the company.'8. in laxman malhari sable's case, the petitioner was prosecuted for the offence punishable under section 302 of indian penal code and during the pendency of the trial, he was elected as municipal councillor of khopoli municipal council in december, 1996. the petitioner was held guilty of the offence punishable under section 304, part i of indian penal code by the judgment and order dated 6-2-1997 of the learned sessions judge, alibag and he was sentenced to undergo imprisonment for ten years besides fine of rs. 5000/-. appeal against the said judgment was admitted by this court on 17-2-1997 with liberty to the appellant to file separate application for bail. the facts of the case were that the appellant had entered the house of the chief officer of khopoli municipal council where the chief engineer of khopoli municipal council, deceased yeshwant patil was sitting along with the chief officer. the revolver belonging to the deceased was kept on a tea-poy nearby and after some discussion, the deceased fired first bullet from his revolver which caused two holes in safari coat worn by the appellant laxman and second bullet caused injury in the stomach of tukaram, son of the appellant and the third bullet which caused death of the engineer was fired by the appellant. under those circumstances, the question before the court was about the right of private defence, if any, and whether it was exceeded. the division bench of this court, after referring decisions of the apex court in rama narang's case, held that considering the circumstances leading to the incident where the deceased picked up his revolver and fired at the petitioner and then at the petitioner's son, prima facie, it was undoubtedly a case of the petitioner acting in exercise of his right of private defence. it was further observed that the petitioner belonged to denotified wadar tribe and as such, had been elected as a councillor and was then the president of the municipal council for one year. the period of one year was likely to expire in december, 1997 and under those circumstances, case was made out for exercise of the discretion in favour of the petitioner therein. the likely damage could not have been undone even if he was ultimately to succeed in appeal. in the peculiar facts and circumstances of that case, the division bench being inclined to exercise the discretion in favour of the appellant, suspended the conviction and sentence while granting him bail in the matter.9. reverting to the facts of the case in hand, perusal of the m.s.e.b, employees service regulations and the copies of the circulars issued by the board from time to time and placed on record, undoubtedly discloses that on conviction for criminal offence of any employee of the board, his services can be terminated without there being any necessity of undergoing disciplinary proceedings against such person, unless the higher authority, in its discretion, if satisfied for the reasons to be recorded in writing, relaxes the provisions contained in section 10(a) regarding termination of employee on such ground. from circular dated 28-9-2000, it is also apparent that the board has directed to review all the pending cases where the employees have been convicted and the sentence has been suspended during pendency of appeal. the said circular read with earlier circulars dated 24-11-1992 and 8-4-1993, as rightly submitted by the learned advocate for the petitioners, disclose that in the absence of stay of order of conviction against the employee of the board, certainly the board would be entitled to terminate such employees who are convicted for criminal offence, without following disciplinary proceedings. appeal in this case has already been admitted by order dated 8-9-2000 and the petitioner has been granted bail after suspension of sentence by order dated 8-9-2000. considering the ratio laid down by the apex court in the case of a. jagannathan as well as in rama narang's case read with the decision of the division bench of this court in laxman malhari sable's case, it is apparent that while considering the application for stay of order of conviction, the most relevant factor which is to be considered is whether the damage that would be caused to the applicant in the absence of suspension of the order of conviction could be undone. if ultimately, the applicant's appeal is allowed. undoubtedly, if the damage is of trifling nature. it cannot be contended that the same cannot be undone. equally, it is also necessary to taken into consideration the degree of probability the appeal stands of being finally allowed, the nature and gravity of offence, the age and conduct of the accused etc.10. in the case in hand, the appellant who is a public servant, has been held guilty of obtaining rs. 1000/- from the complainant as an illegal gratification other than legal remuneration for doing an official act in exercise of his official function. the case against the appellant is that on instructions from one m. a. patil, an employee of the board, the accused agreed to carry out certain repairs to the meter provided for the complainant, in consideration of receipt of a sum of rs. 1000/-. the complainant, approached the anti corruption bureau office and a trap was laid and the appellant was caught red handed while accepting the said sum of rs. 1000/- on repair being carried out to the meter by the appellant. the judgment of conviction and imposition of sentence has been challenged on various grounds including the ground to the effect that the appellant is neither technically qualified nor trained person to repair electric meter but, is a lower division clerk and in spite of that, the prosecution has not brought any evidence to establish that the appellant had sufficient technical knowledge of repairing the meters. the materials on record show that the appellant is a l.d.c. and was entrusted with the work of preparing bills. it is contended that if the appellant had indeed, repaired the meter as alleged by the prosecution, when the trap was laid, he would have been found in possession of some instruments like screwdrivers, nose-pliers etc. but none of the things was either found or recovered from the appellant. there is neither any search panchanama conducted nor the panchanama of trap discloses recovery of any such instrument or the possibility on the part of the appellant having involved in the act of repairing the meter. the whole case of the prosecution being that the amount was demanded for repair of the meter and, there being no evidence led regarding repair of the meter, it is apparently a concocted story against the appellant. there is no doubt that the appellant is working as l.d.c. in the board and materials do disclose that he was entrusted with the work of preparing bills. in the circumstances, it would be necessary to analyse the evidence on record to ascertain whether really the prosecution has been able to establish the case as regards the commission of offence by the appellant as alleged by the prosecution. prima facie, the contentions on behalf of the petitioner cannot be just brushed aside.11. at the same time, the m.s.e.b. service regulations and circulars issued regarding the employees of the board disclose that the moment the employee is convicted for a criminal offence, he can be terminated without following disciplinary proceedings. in other words, without giving any opportunity to the petitioner to defend his rights to continue in employment despite the conviction in criminal offence and the probability of the appellant succeeding in the appeal, likelihood of termination of his services, cannot be totally ruled out. in that case, it cannot be said that the petitioner would not suffer irreparable injury, nor it can be said that such an injury would be of a trifling nature. at the same time, it is to be observed that it cannot be said in each and every case of conviction of an employee that the moment he is convicted, and could be suspended on the ground of conviction that he would be entitled to get stay of order of conviction. each case will have to be decided independently, depending upon the facts of the case. considering the fact that the petitioner is l.d.c., entrusted with the work of preparing bills and prima facie, materials disclosing absence of any instrument with the petitioner at the relevant time when the petitioner is said to have repaired the meter, and if the contention as sought to be raised on behalf of the petitioner is found to be good on detail appreciation of materials on records, certainly, in the circumstances, it cannot be said the petitioner would not suffer irreparable injury in case of the termination of his services on account of conviction by the special judge in special case no. 6/1998.12. in the circumstances, therefore, there, is prima facie, case made out for suspension of order of conviction dated 24-8-2000 of the petitioner in special case no. 6/98 and hence the application succeeds. the order of conviction of the petitioner in special case no. 6/98 is hereby stayed during the pendency and till disposal of the criminal appeal no. 371 of 2000. application accordingly, stands disposed of. rule made absolute accordingly. certified copy expedited.