IN THE HIGH COURT OF KERALA AT ERNAKULAM
R.NARAYANA PISHARADI, J.
Crl.M.A.No.01 of 2021 in Crl.A.No.309 of 2018; 27 July, 2021
Crl. M. Appl. No.1 / 2021 in Crl. A No. 309 of 2018 CC No. 10 / 2014 of the Special Court (SPE/CBI) III, Ernakulam.
Savitha S. Kannan
Inspector of Police
M/s V. John Sebastian Ralph, P. V. Dency, K. J. Joseph Ernakulam, V. John Thomas, V. T. Lissy, Advocates for the Petitioner and the Standing Counsel For CBI.
O R D E R
The petitioner was the second accused in the case C.C.No.10/2014 on the file of the Court of the Special Judge (SPE/CBI)-III, Ernakulam.
2. The trial court convicted the petitioner for the offence punishable under Section 8 of the Prevention of Corruption Act, 1988 (for short ‘the PC Act’) and also under Section 120B of the Indian Penal Code read with Section 8 of the PC Act.
3. The petitioner has filed the appeal (Crl.A.No.309/2018) challenging the order of conviction entered against and the sentence imposed on her by the trial court. The sentence imposed on her by the trial court was suspended by this Court as per the order dated 02.03.2018.
4. The present application is filed by the petitioner under Section 482 of the Code of Criminal Procedure, 1973 (for short ‘the Code’) for suspension of the order of conviction passed against her by the trial court.
5. The petitioner was a person employed as Airline Attendant in the Air India Express. The prosecution case is that, she entered into a criminal conspiracy with the first and the third accused for collecting illegal gratification from candidates for appointment to the post of Airline Attendant and pursuant to such conspiracy, money was collected from such candidates by the first and the third accused. It is also alleged that the petitioner obtained an amount of Rs.6,50,000/- out of the illegal gratification received by the first and the third accused.
6. Heard learned counsel for the petitioner and the learned Central Government Standing Counsel who appeared for the C.B.I.
7. Section 389(1) of the Code deals with powers of the appellate court regarding suspension of execution of the sentence of order appealed against. There can be no dispute with regard to the fact that, in exceptional circumstances, the appellate court has power to suspend the order of conviction passed against an accused.
8. If the High Court feels satisfied, in a fit case, that the order of conviction needs to be suspended or stayed so that the convicted person 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 (See Rama Narang v. Ramesh Narang : (1995) 2 SCC 513). Such power should be exercised only in exceptional and rare circumstances where failure to stay the conviction would lead to injustice and irreversible consequences (See Ravi Kant S. Patil v. Sarvabhouma S. Bagali : (2007) 1 SCC 673).
9. While considering the question of suspension of sentence, the moral conduct of the accused is also relevant (See State of Tamil Nadu v. A. Jaganathan : AIR 1996 SC 2449).
10. The petitioner has prayed for suspension of the order of conviction passed against her by the trial court mainly on the following ground stated in this application, which reads as follows:
“The petitioner is getting many job offers in the flying field since she has vast experience in that field. Unless and until the conviction is suspended, she may not be able to get any employment. Due to the pandemic situation she is finding it difficult to look after her family.”
11. Learned counsel for the petitioner submitted that the petitioner has lost her job on account of the conviction entered against her by the trial court and she could not also now get any other employment for that reason. It is submitted that the petitioner has got no means of livelihood now.
12. In K.C.Sareen v. C.B.I : AIR 2001 SC 3320, the question arose whether conviction against a public servant for an offence under the PC Act can be stayed or suspended on the ground that the conviction would adversely affect the career prospects of the convicted person. The Apex Court summarized the legal position on this point as follows:
“The legal position, therefore, is this : 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 PC 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, dehors the sentence of imprisonment as a sequel thereto, is a different matter”.
The Apex proceeded further and held as follows:
“When a public servant was found guilty of corruption after a judicial adjudicatory process conducted by a Court of law, judiciousness demands that he should be treated as corrupt until he is exonerated by a superior Court. 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 such public servants once again should not even temporarily absolve him from such findings. If such a public servant becomes entitled to hold public office and to continue to do official acts until he is judicially absolved from such findings by reason of suspension of the order of conviction it is public interest which suffers and sometimes even irreparably. 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 exonerated after conducting a judicial adjudication at the appellate or revisional level. It is a different matter if a corrupt public officer could continue to hold such public office even without the help of a Court order suspending the conviction”.
The Apex Court ultimately concluded as follows:
“The legal position can be laid down that when conviction is on corruption charge against a public servant the appellate Court or the revisional Court should not suspend the order of conviction during the pendency of the appeal even if the sentence of imprisonment is suspended. It would be a sublime public policy that the convicted public servant is kept under disability of the conviction inspite of keeping the sentence of imprisonment in abeyance till the disposal of the appeal or revision”.
13. In Union of India v. Atar Singh : (2003) 12 SCC 434, the accused was convicted for the offence under Section 13 of the PC Act. In appeal, the High Court suspended the conviction on the ground that non-suspension of conviction would entail removal of the accused public servant from Government service. The Apex Court set aside the order of the High Court holding that discretion should not have been exercised by the court in favour of the accused.
14. In State of Maharashtra v. Gajanan : AIR 2004 SC 1188, the accused was convicted for the offence under Section 7 of the PC Act. In appeal, the High Court suspended the conviction to facilitate the accused public servant to continue to hold the civil post. After reiterating the principles laid down in K.C.Sareen (supra), the Apex Court set aside the order of suspension of conviction granted by the High Court.
15. In State of Punjab v. Navraj Singh : AIR 2008 SC 2962, the accused was convicted for offences under the PC Act. An order of suspension of conviction was granted by the High Court in favour of the accused on the ground that the conviction would lead to loss of his employment. After reiterating the principles laid down in K.C.Sareen (supra), the order of suspension of conviction granted by the High Court in the appeal was set aside by the Apex Court.
16. In C.B.I v. M. N. Sharma: AIR 2009 SC 1185, the accused was convicted for the offences under Sections 7 and 13(1) of the PC Act. The High Court granted order of suspension of conviction in favour of the accused on the ground that he would lose his job. The Apex Court set aside the order of the High Court.
17. In State of Maharashtra v. Balakrishna Dattatrya Kumbhar : (2012) 12 SCC 384, the accused was convicted for the offence under Section 13(1)(e) of the PC Act. The High Court suspended the order of conviction so that the department shall not precipitate the matter further. The Apex Court set aside the order of the High Court.
18. In the light of the dictum laid down by the Apex Court in K.C.Sareen (supra), which has been consistently followed in the subsequent decisions, the prayer made by the petitioner for suspension of the order of conviction, cannot be allowed.
19. Learned counsel for the petitioner submitted that there was no sufficient evidence to enter a conviction against the petitioner for the offences alleged against her. Learned counsel invited the attention of this Court to the deposition of PW1 and also the relevant passages of the impugned judgment in an attempt to substantiate the aforesaid plea.
20. The question whether the conviction entered against the petitioner by the trial court is on sufficient evidence or not cannot be considered in this application for suspension of the order of conviction as it would amount to prejudging the merits of the appeal itself. Sufficiency or otherwise of the evidence adduced against the petitioner by the prosecution to substantiate the charges levelled against her cannot be decided in this application. A similar contention raised by the accused in K.C. Sareen (supra) that the conviction was based on slender reasoning and there was a fair chance of getting acquittal in appeal was negatived by the Apex Court.
21. The discussion above leads to the conclusion that the prayer made by the petitioner for suspension of the order of conviction against her cannot be allowed.
Consequently, the application is dismissed.