The prayer of the appellant S.K.Agrawal is that pending appeal the execution of the sentence awarded to him be suspended. I have heard learned counsel for the parties on such prayer.
It has been submitted from the side of the appellant that he has been released on bail in this case by this Court. It has further been submitted that he has been falsely implicated in this case and the judgment of the learned trial Court is studded with so many discrepancies. It has further been contended that there is absolutely no evidence to show that the appellant, in any manner, has by corrupt or illegal means obtained for himself or for any other person any valuable thing or pecuniary advantage or by abusing his position as a public servant obtained for himself or for any other person any valuable thing or any kind of other advantage, and thus his conviction under section 13(1)(d) of Prevention of Corruption Act read with section 13(2) of the same Act is illegal. Learned counsel for the appellant has further argued with vehemence that by no stretch of imagination it can be said that the appellant has committed any criminal misconduct as is held by the learned trial Court because there is absolutely no material on record on this point. It has also been submitted that there is no evidence which may indicate that the appellant has cheated the bank. It has also been submitted that the appellant is confident that his appeal shall be allowed as and when it is finally heard and decided. He is apprehending that his services may be terminated which may cause untold hardship and miseries to him and his family. It has also been submitted that he is the branch manager of a nationalized bank and due to the judgment and order impugned herein he may be thrown out of service.
The prayer is vehemently opposed by the learned counsel for C.B.I. He pointed out that the appellant has been found guilty under sections 420/120-B IPC and section 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988 and sentenced to various terms of imprisonment with fine. It has also been submitted that the act of the appellant involves moral turpitude and therefore, relief of suspension of sentence can not be granted to him.
In (2008) SCC 549 Central Bureau of Investigation, New Delhi Vs. M.N.Sharma and the connected appeal the Apex Court has laid down certain guidelines which should be followed while disposing of the prayer for suspension of sentence pending appeal by an appellant. Quoting the cases of the State of Maharashtra Vs. Gajanan (2003) 12 SCC 432 , K.C.Sareen Vs. C.B.I. (2001) 6 SCC 584, Union of India Vs. Atar Singh (2003) 12 SCC 434 and State of Haryana Vs. Hasmat (2004) 6 SCC 175 the Apex Court has said that the legal position is 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 yet its exercise should be limited to very exceptional cases. Merely because the convicted person files an appeal in challenge of the the conviction the Court should not suspend the operation of the order of conviction. The Apex Court has further said that it is the duty of the Court to look at all aspects including the ramifications of keeping such conviction in abeyance. Keeping in view this legal position the Court should examine the question as to what should be the position when a public servant is convicted of an offence under the Prevention of Corruption Act, 1988.
In 2008 (60) ACC 471 Alld.(Daya Shankar Rai & another Vs. State of U.P.) a single Judge of this Court has opined that it is well within the powers of the appellate Court to invoke its jurisdiction under section 389 (1) Cr.P.C. provided its attention is invited to the consequences that would ensue if conviction is not stayed. The Hon'ble Judge is also of the view that conviction can only be stayed in exceptional circumstances.
Similar opinion has been expressed by another Bench of this Court in 94 AWC(1) 606 (Yogendra Kumar & others Vs. State of U.P.).
A copy of the order passed in Criminal Appeal No.3712 of 2010, Prabhu Yadav and others Vs. State of U.P. has been filed. In this case another Bench of this Court on 11.2.2011 had stayed the sentence. But this case was not under the Prevention of Corruption Act as the appellants were found guilty and convicted under section 3(1)(10) of SC/ST Act and they were acquitted of the offences punishable under sections 323/324/504/506 IPC.
In (2007) 9 SCC 330, Lalsai Kunte Vs. Nirmal Sinha & Others the Apex Court has said that the appellate Court has power not only to suspend execution of sentence but also to stay order of conviction appealed against. It has further been said that the stay of order of conviction results in rendering the order temporarily non-operative. But this result does not ensue in case of suspension of the order under appeal.
Infact the law laid down in this case distinguishes between order of suspension of the sentence and stay of conviction.
In AIR (2007) SC 1003(Navjot Singh Sidhu Vs. State of Punjab & another) the Apex Court has said that sub section (1) of Section 389 says that pending any appeal by a convicted person the appellate Court may, for reasons to be recorded by it in writing order that the execution of the sentence or order appealed against be suspended, and also, if he is in confinement be released on bail, meaning thereby Sub-section confers power upon the Court not only to suspend the execution of sentence and grant bail but also to suspend the operation of the order appealed.
From perusal of Navjot Singh Sidhu's case(supra) it appears that the Court has power to suspend the sentence but such power should not be exercised in a routine manner. The Court has to see its ramification and after considering the facts and circumstances of the case an appropriate order should be passed.
In Rama Narang Vs. Ramesh Narang 1995 STPL(LE) 20354 SC the Apex Court has said that in certain situations the order of conviction can be executable, in the sense, it may incur a disqualification . In appropriate cases the power under Section 389(1) of the Code can be invoked. In nutshell in this case law also the Apex Court has said that an order to suspend the sentence should not be passed in a routine manner and before disposing of such prayer the Court should look into the entire facts and circumstances of the case and the ramification which may ensue if an order is passed in favour of the appellant.
Keeping in view the above guidelines this Court has to see whether in the instant case it should exercise its discretion in favour of the appellant or not. In the case in hand the appellant S.K.Agarwal has been found guilty and convicted under section 13(2) read with section 13(1) (d) of the Prevention of Corruption Act, 1988. I have examined the judgment of the learned lower Court with caution. Keeping in view the facts and circumstances of the case I do not find that this Court should exercise its discretion in favour of the appellant.
On the basis of the above discussions, I am of the view that the relief of suspending the sentence prayed for by the appellant can not be granted and therefore, the same is refused.
Order Date :- 19.10.2012 IA