Subhash Chand Jain v. Central Bureau of Investigation

1. By these applications, the appellants have sought suspension of the order on conviction dated 26th August, 2021 convicting the appellants till the final disposal of the appeals by this Court. These appeals arise out of a common judgment dated 26th August, 2021 passed by the learned Special Judge PC Act CBI-03, Rouse Avenue Courts convicting the appellants under provisions under Sections 420/471IPCr/w Section 468 IPC and under Section 13 (1)(d)r/w Section 13 (2) of the Prevention of Corruption Act (PC Act). An incident dated 26th June, 2006 wherein it was alleged that the accused conspired amongst themselves to defraud the New Delhi Municipal Corporation (NDMC)in a matter pertaining to execution an award of electrical works and for which purpose they awarded the work and released the payments to the contractor without ensuring that the related work was executed.

2. The subsequent order on sentence dated 14th September 2021 awarded a sentence of one-year rigorous imprisonment for offence punishable under Section 120-B IPC with fine of Rs. 20,000/-(2 months SI in default of payment of fine), 3 years RI for offences punishable under 420/468/471 IPC, and fine of Rs. 40,000/-, (6 months SI in default of payment of fine), and 3 years RI for offence punishable under Section 13 (2)r/w 13 (1)(d) PC Act with fine of Rs. 40,000 (6 months SI in default of payment of fine) for all three appellants. These sentences were to run concurrently.

3. Since applications under Section 389 (3) Cr.P.C. had been moved by the appellants, this sentence was suspended by the learned Trial Court for a period of 60 days to enable them to file a statutory appeal. By order dated 9th October, 2021, this Court suspended the sentence of the appellants during the pendency of the appeal subject to conditions as mandated in the said order. The appellants, pursuant to the suspension of sentence and pending the final adjudication of the appeals, have preferred these applications for stay of conviction on the ground that the Chairman Disciplinary Authority, NDMC, issued a show cause notice dated 23rd November, 2022 under Rule 8 of the Central Civil Services (Pension)Rules 2021r/w Rule 19 (i) of CCS (CCA) Rules 1965 r/w regulation 5 (2) (a)of NDMC(Conditions of Service of Municipal Officer) Regulations, 2016 asking the appellants to show cause as to why on the basis of the conviction, the penalty of withdrawal of pension in full, permanently be not imposed. The appellants filed a short reply to the said notice for seeking appropriate orders and clarification from this Court.

4. The appellants have already deposited the fine of Rs. 1 Lakh with the learned Trial Court and the appeals of the appellants have been admitted by this Court by virtue of order dated 28th October,

2021. The appellants submit that their withdrawal of pension is an extreme circumstance and if the order of conviction is not stayed/suspended, the pension being the only source of livelihood of the appellants will be permanently withdrawn and will cause suffering in the life of the appellants who are senior citizens and are suffering from multiple ailments. Contending that these are exceptional cases where this Court, to prevent abuse of process of law and in the interest of justice, could exercise its powers and stay the conviction till the disposal of the appeal.

5. The appellants have appended their medical documents in support of their asserting extreme circumstances and also submitted that the pension amount for each of them are in the range of Rs. 50- 60,000 per month. In support of their submissions, the appellants have relied upon the following decisions: Rama Narang v. Ramesh Narang, (1995) 2 SCC 513; Ravikant S. Patil v. Sarvabhouma S. Bagali, (2007) 1 SCC 673; Navjot Singh Sidhu v. State of Punjab & Anr., (2007) 2 SCC 574; Lalsai Khunte v. Nirmal Sinha, (2007) 9 SCC 330.

6. Relying upon these decisions, the learned counsels for the appellants contended that the orders on conviction can be stayed provided specific consequences which are likely to be fall upon the appellants have been pleaded. Further relying upon these decisions, the learned counsel for the appellants have also pleaded that the order of conviction can be suspended to avoid the convicted person from suffering any disqualification of a particular nature. Reliance was also placed on the decision of this Court in Om Prakash v. State (Crl. M.A. No. 11259 of 2005 in Crl. A. 32 of 2000) and Ram Mahesh Yadav v. State (Crl. A. 951 of 2012) where DDA had issued show cause notice of termination against the appellant.

7. Appellants have further contended that they have had an unblemished career of 34-35 years and had superannuated on 30th November, 2005, 31st October, 2009 and 31st October, 2009 respectively. It is also contended that the CBI had filed two closure reports and had not sanctioned for the prosecution, a competent authority and therefore the entire trial was vitiated.

8. The learned counsel for the CBI has vehemently refuted the allegations and relief sought by the appellants by virtue of these applications contending that when the application under Section 389 Cr.P.C. was preferred by the appellants, a prayer for the stay of the impugned judgment of conviction was also made and vide order dated 14th October, 2021 only the sentence was suspended while the conviction was not stayed (in the case of PK Mathur, the order reference is of 28th October, 2021). The learned counsel for the CBI, further relied upon the fact that pursuant to the registration of the FIR in 2005, the trial had taken 12 years to conclude and that there was a distinct difference between ensuring continuance in service, as was the case on facts in the decisions of this Court in Om Prakash and Ram Mahesh (supra), than an issue of granting pensionary benefits despite the appellants having been convicted. The learned counsel for the CBI relied upon the decision of the Hon’ble Supreme Court in K.C. Sareen v. CBI (2001) 6 SCC 584, which has clearly laid down the principles relevant to suspension of conviction inter-alia that suspension of conviction is not a sequel to suspension of sentence and that public policy require that a convicted public servant is kept under disability of conviction till the decision of his appeal. The Hon’ble Supreme Court had held thus, on account of the principle that if a public servant is convicted of corruption and is allowed to hold public office, it would be the public interest which suffers and would erode the confidence of people in public institutions. The Hon’ble Supreme Court had noted that Courts should not aid a public servant who stands convicted for corruption charges unless exonerated. This decision, as contented by the learned counsel for CBI has been consistently followed for the last 21 years and reference was made to a decision of the Hon’ble Supreme Court in Union of India v. Atar Singh, 2003 12 SCC 434, State of Maharashtra v. Gajanan, 2003 12 SCC 432; State of Punjab v. Deepak Mattu (2007) 11 SCC 319; State of Punjab v. Navraj Singh, (2008) 11 SCC 71; Lok Prahari v. Election Commission of India, (2018) 18 SCC 114.

9. It was contended that the power to stay a conviction was only by way of an exception and on the basis of a finding that the conviction is untenable and on frivolous grounds. It was submitted that there was no exceptional circumstance pleaded in the present case and that convictions in Navjot Singh Sidhu(supra) had been suspended after examining the fact that the appellant therein entered politics in the year 2004, while the incident for which he was convicted took place in 1988 and it was not a case of conviction under the PC Act.

10. It would be apposite to refer to some passages in some of these decisions of the Hon’ble Supreme Court cited by the parties, which would have bearing on issues involved in the matter. These are chronologically arranged below for ease of reference:-

(i) In Rama Narang v. Ramesh Narang, (1995) 2 SCC 513 329, it has held as under:

11.“19. That takes us to the question whether the scope of Section 389(1) of the Code extends to conferring power on the Appellate Court to stay the operation of the order of conviction. As stated earlier, 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 to 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. We are, therefore, of the opinion that the Division Bench of the High Court of Bombay was not right in holding that the Delhi High Court could not have exercised jurisdiction under Section 482 of the Code if it was confronted with a situation of there being no other provision in the Code for staying the operation of the order of conviction. 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 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; 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 (sic or) 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.” (emphasis supplied)

(ii) In State of T.N. v. A. Jaganathan, (1996) 5 SCC 329 it has held as under: “3.… The submission of the learned counsel appearing for the State is that the High Court has passed the impugned orders relying on the decision in Rama Narang case [(1995) 2 SCC 513] wherein this Court took the view that in appropriate cases the conviction and sentences can be suspended in exercise of powers under Section 482 CrPC. After going through the decision referred to above and the facts of the present case we find that the decision relied upon has no application to the facts of the cases before us. In Rama Narang case [(1995) 2 SCC 513] the conviction and sentences both were suspended on the reasoning that if the conviction and sentences are not suspended the damage would be caused which could not be undone if ultimately the revision of the appellants of that case was allowed. But in the present case, we find that in the event the revisions against their conviction and sentences are allowed by the High Court the damage, if any, caused to the respondents with regard to payment of stipend etc. can well be revived and made good to the respondents. If such trifling matters are taken into consideration, we think, then every conviction will have to be suspended pending appeal or revision involving the slightest disadvantage to a convict…”

(iii) In K.C. Sareen v. CBI, (2001) 6 SCC 584 it was held: