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Friday, March 21, 2014

Sc.389 (1) of Cr.P.C. - conviction under Sections 120B, 384 IPC and Sections 7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 (for short "PC Act"). - already removed from service pending trial - Stay on conviction orders - their lordships held that in the absence of exceptional circumstances that the appellant would suffer irreparable and irreversible loss and even if ultimately succeeds in the appeal, it would be of no use, No stay of execution of conviction be granted and further the accused are involved in moral turpitude and as such not entitled for stay and as such dismissed the petition =Neelakanti Gunaker..... Appellant/Accused No.2 State of Andhra Pradesh Rep. by its Special P.P. for CBI,High Court of A.P, Hyderabad .... Respondent = 2014 (March.Part) judis.nic.in/judis_andhra/filename=10971

 Sc.389 (1) of Cr.P.C. - conviction under Sections 120B, 384 IPC and Sections 7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 (for short "PC Act"). - already removed from service pending trial - Stay on conviction orders - their lordships held that in the absence of  exceptional circumstances that the appellant would suffer irreparable and irreversible loss and
even if  ultimately succeeds in the appeal, it would be of no use, No stay of execution of conviction
be granted and  further the accused are involved in moral turpitude and as such not entitled for stay and as such dismissed the petition =

The instant petition is filed by the appellant/A2 under Section 389
Cr.P.C. seeking stay of conviction passed by the II Additional Special Judge for
CBI cases, Visakhapatnam in his judgment dated 30-04-2013 in C.C.No.6 of 2007  
convicting him and A1 for the offences under Sections 120B, 384 IPC and Sections
7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 (for short "PC
Act").=

"Whether the petitioner deserves stay of execution of conviction pending
appeal?"
 K.C.SAREEN v. CBI.,
CHANDIGARH4 deprecated granting stay of execution of conviction in the offences
under the PC Act.  It held thus:
"Though 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. The Court has a duty to look at all aspects
including the ramifications of keeping such conviction in abeyance. Therefore,
when conviction is on a 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 against conviction 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 in spite of
keeping the sentence of imprisonment in abeyance till the disposal of the appeal
or revision".
  In NAVJOT SINGH SIDHU v. STATE OF PUNJAB3 it was observed thus:       
"The legal position is, therefore, clear that 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. Unless the
attention of the court is drawn to the specific consequences that would follow
on account of the conviction, the person convicted cannot obtain an order of
stay of conviction. Further, grant of stay of conviction can be resorted to in
rare cases depending upon the special facts of the case".
 I have carefully gone through the judgment.  The trial Court found accused
guilty of the charges under Sections 120B and 384 IPC and Section 7 and 13(2)
r/w 13(1)(d) of PC Act for the accusation that when both the accused were sent
to make inspections in various Central Government undertakings in Visakhapatnam, 
while making inspections at different sites, they demanded and accepted bribes
from contractors and companies.  Of course, the legality of the judgment is
under challenge in the appeal. 
That being so, in the petition, the petitioner
mainly raised points challenging the validity of the judgment.  
I am afraid,
these points raised by him at best will help him while arguing the main appeal
but by no means they can be taken as exceptional circumstances to consider 
suspension/stay of execution of conviction.  
As already discussed supra, the
exceptional circumstances shall be such that if stay of execution of conviction
is not granted, the appellant would suffer irreparable and irreversible loss and
even if  ultimately succeeds in the appeal, it would be of no use.  That is not
the case here.  
In the instant case, the petitioner was dismissed from service
way back on 27-11-2013 as per the order of Chief Labour Commissioner (Central).
By virtue of the said order the Regional Labour Commissioner (Central) Hyderabad
passed consequential order dated 02-12-2013 and struck the name of the
petitioner from the roles of organisation and Region. 
Whereas the petitioner
filed the instant petition only on 24-01-2014 for grant of stay of execution of
conviction. 
As rightly argued by the learned Special Standing Counsel, long
prior to the date of petition he was already dismissed from service and so, the
question of petitioner suffering irreversible loss if stay of conviction is not
granted does not arise, as petition has already become infructuous.
10)     That apart the petitioner was convicted for the offences under PC Act. In
view of the nature of the offences involving moral turpitude of the petitioner,
I am not inclined to grant stay of execution of conviction.  So, in any view of
the matter, there are no merits in the petition.
11)     Accordingly, this Crl.A.M.P. is dismissed.


2014 (March.Part) judis.nic.in/judis_andhra/filename=10971
THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO          

Crl.A.M.P.No.110 of 2014 and batch

05-03-2014

Neelakanti Gunaker..... Appellant/Accused No.2

State of Andhra Pradesh Rep. by its Special P.P. for CBI,High Court of A.P,
Hyderabad .... Respondent

Counsel for Appellant: Sri T. M. K.Chaitanya

Counsel for Respondent  : Sri P. Kesava Rao,
                          Standing Counsel for CBI
<Gist:

>Head Note:

?Cases referred:
1) (1995) 2 SCC 513
2) (2007) 1 SCC 673
3) (2007) 2 SCC 574
4) AIR 2001 SC 3320 (1) = (2001) 6 SCC 584

HON'BLE SRI JUSTICE U. DURGA PRASAD RAO        

Crl.A.M.P.No.110 of 2014

in
Crl. A. No.407 of 2013

Order:

        The instant petition is filed by the appellant/A2 under Section 389
Cr.P.C. seeking stay of conviction passed by the II Additional Special Judge for
CBI cases, Visakhapatnam in his judgment dated 30-04-2013 in C.C.No.6 of 2007  
convicting him and A1 for the offences under Sections 120B, 384 IPC and Sections
7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 (for short "PC
Act").
2)      A1 is the Assistant Labour Commissioner (Central), Hyderabad and
appellant/A2 is the Labour Enforcement Officer (Central), Rajahmundry.
        Prosecution case is thus:
a)      The Regional Labour Commissioner (Central), Hyderabad directed A1 and A2
to conduct inspections at various Central Government organisations/undertakings
at Visakhapatnam particularly the work sites of contractors who were executing
the contract works in those Central Government organisations/undertakings from
24-08-2006 to 26-08-2006.  A1 and A2 pursuant to the aforesaid direction
occupied room No.3 in HPCL guest house at Visakhapatnam. It is alleged that on
24-08-2006 and 25-08-2006 A1 and A2 visited work sites of the contractors in
various Central Government undertakings/organisations like HPCL, Visakhapatnam,
Port Trust etc. and demanded the contractors illegal gratification and accepted
bribes totalling about Rs.60,000/-.They need not make proper and serious
inspections of the work sites but, made only eye-wash inspections and prepared
the reports which were deficient.
b)      On reliable information about collection of bribe by A1 and A2 from
various contractors, a team of CBI officials conducted sudden and surprise
search in room No.3 of HPCL guest house on
25-08-2006 in the presence of two independent mediators i.e. PW21-
M.Satyanarayana and LW13-G.Siva Rama Krishna and seized an amount of Rs.60,000/-    
which was the bribe amount collected from various contractors from the
possession of A1 and A2.  A case was registered in R.C.15(A)/2006 against A1 and
A2, investigated and tried and they were ultimately convicted and sentenced for
the offences as stated supra.
        Challenging the conviction and sentence A2 preferred the instant appeal.
3)      While so, the instant petition is filed seeking stay of conviction on the
following grounds.
i)      Pursuant to conviction, Ministry of Labour and Employment removed A1 from
service with all retirement benefits but discriminatingly petitioner/A2 was
dismissed from service as per the order dated 02-12-2013 solely on the ground of
conviction recorded by the CBI Court without conducting any disciplinary
proceedings.  There are fair chances for A2 to succeed in the appeal and there
is no scope to hear the Criminal Appeal in near future.
ii)     The trial Court failed to see that there is no cogent and unimpeachable
evidence for convicting the petitioner/A2.
iii)    The trial Court failed to take into account the evidence produced by the
petitioner which resulted in an illegal order of conviction.
iv)     Since appeal being a statutory right, the trial court's verdict will not
attain finality during pendency of the appeal and it is the duty of the
appellate Court to appraise the evidence and arrive at an independent conclusion
and as such during pendency of appeal trial is deemed to be continuing despite
conviction.
v)      The exceptional circumstances for staying the conviction are that CBI
erroneously sent the alleged writings of the petitioner in brown colour paper
under Ex.P40 to hand writing expert without permission of the Court which is
against the thesis of Section 73 of the Evidence Act. Even the Court cannot
direct for comparison of specimen writings at the stage of investigation.
vi)     The CBI ought not to have investigated the case basing on anonymous or
pseudonymous complaints as per the Central Vigilance Commission's directions.
vii)    The so-called source information was nothing but a subterfuge to
unjustifiably get over the embargo under Section 162 Cr.P.C.
viii)    Mere proof of recovery of bribe money from the accused is not sufficient
to prove the offence and the prosecution has to establish demand also.
ix)     There is no preliminary enquiry in the case of petitioner.
x)      The cell phones through which the alleged demand was made found to be
false.
xi)     The petitioner is having unblemished and excellent record throughout his
carrier and he will not involve himself in any offence using the currency of the
suspension of order of conviction, if granted.
xii)    The petitioner has no source of income and he is the only earning member
of his family.
4)      Heard arguments of learned counsel for petitioner Sri T.M.K.Chaitanya and
learned Special Standing Counsel for CBI Sri P.Kesava Rao.
5)      The precise argument of learned counsel for petitioner is that following
the conviction in this case, the Chief Labour Commissioner (Central) in its
order dated 27-11-2013, has dismissed the petitioner from service solely on the
basis of conviction impugned in this appeal without conducting any disciplinary
enquiry. The petitioner has very strong grounds to succeed in the appeal and
therefore pending appeal the dismissal of service would cause any amount of
hardship for him, as he and his family members depend on his employment only.
He has two daughters pursuing B.Tech. and Intermediate respectively.  So,
considering his case as an exceptional case, conviction may be stayed pending
appeal. He relied upon a number of decisions on the subject matter.

6)      Per contra, opposing the petition, learned Special Standing counsel argued
that Courts shall not use the discretionary power of staying the conviction for
mere asking, unless there exists exceptional circumstances where refusal to stay
conviction would lead injustice and irreparable and irreversible loss to accused
if stay of conviction is not granted.  He further argued that in the instant
case on the own submission of petitioner, he was dismissed from service and so
even if the stay of conviction is granted, it will be otious.
He further submitted that the conviction passed was for the offences under PC
Act involving his moral turpitude and generally, if conviction in such a case is
stayed and accused is allowed to continue in service, it will defeat the moral
of other honest employees who have to work with him and under him thereafter.
So, Courts must be extremely slow and cautious in staying the conviction granted
under PC Act.  He thus prayed to dismiss the petition.

7)      In the light of above rival arguments, the point for determination in this
petition is:
"Whether the petitioner deserves stay of execution of conviction pending
appeal?"
8) POINT: Regarding the powers of an appellate Court to suspend/stay the
execution of sentence or order "appealed against" i.e. conviction the Apex Court
has clearly delineated in the case of Rama Narang v. Ramesh Narang1 thus:
"Section 389(1) empowers the Appellate Court to order that the execution of the
sentence or order appealed against be suspended pending the appeal. What can be  
suspended under this provision is the execution of the sentence or the execution
of the order. Does 'order' in Section 389(1) mean order of conviction or an
order similar to the one under Section 357 or Section 360 of the Code? Obviously
the order referred to in Section 389(1) must be an order capable of execution.
An order of conviction by itself is not capable of execution under the Code. It
is the order of sentence or an order awarding compensation or imposing fine or
release on probation which are capable of execution and which, if not suspended,
would be required to be executed by the authorities".
"In certain situations the order of conviction can be executable, in the sense,
it may incur a disqualification as in the instant case. In such a case the power
under Section 389(1) of the Code could be invoked. In such situations the
attention of the Appellate Court must be specifically invited to the consequence
that is likely to fall to enable it to apply its mind to the issue since under
Section 389(1) it is under an obligation to support its order "for reasons to be
recorded by it in writing".
As per the above ruling, it is clear that the appellate Court is empowered to
suspend not only the execution of the sentence but also the execution of the
"order appealed against" i.e. conviction when the execution of such conviction
entails some disqualification or hardship to the convict. (emphasis supplied)
a)      In RAVIKANT S. PATIL v. SARVABHOUMA S. BAGALI2 the Supreme Court on        
appraisal of the earlier decisions observed thus:
"All these decisions, while recognising the power to stay conviction, have
cautioned and clarified that such power should be exercised only in exceptional
circumstances where failure to stay the conviction, would lead to injustice and
irreversible consequences".
        So, the Supreme Court while reiterating that the appellate Court has power
to stay the conviction, cautioned that such power should be exercised only in
exceptional circumstances i.e. non-exercise of such power may result in
injustice and irreversible consequences to the accused.
b)      In NAVJOT SINGH SIDHU v. STATE OF PUNJAB3 it was observed thus:       
"The legal position is, therefore, clear that 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. Unless the
attention of the court is drawn to the specific consequences that would follow
on account of the conviction, the person convicted cannot obtain an order of
stay of conviction. Further, grant of stay of conviction can be resorted to in
rare cases depending upon the special facts of the case".
c)      So, from the above decisions it is clear that appellate Court undoubtedly
has the power to stay/suspend the execution of sentence and also the execution
of conviction under Section 389(1) Cr.P.C. However, the rider is that for
exercise of such power the appellant/accused must project rare and exceptional
circumstances to convince the court that if such stay of execution of conviction
is not granted, he will face irreversible loss.
d)      Apart from the above, the Supreme court in the case of K.C.SAREEN v. CBI.,
CHANDIGARH4 deprecated granting stay of execution of conviction in the offences
under the PC Act.  It held thus:
"Though 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. The Court has a duty to look at all aspects
including the ramifications of keeping such conviction in abeyance. Therefore,
when conviction is on a 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 against conviction 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 in spite of
keeping the sentence of imprisonment in abeyance till the disposal of the appeal
or revision".
        So, the above principles have to be kept in mind while considering the
case of the petitioner.
9)      I have carefully gone through the judgment.  The trial Court found accused
guilty of the charges under Sections 120B and 384 IPC and Section 7 and 13(2)
r/w 13(1)(d) of PC Act for the accusation that when both the accused were sent
to make inspections in various Central Government undertakings in Visakhapatnam, 
while making inspections at different sites, they demanded and accepted bribes
from contractors and companies.  Of course, the legality of the judgment is
under challenge in the appeal. That being so, in the petition, the petitioner
mainly raised points challenging the validity of the judgment.  I am afraid,
these points raised by him at best will help him while arguing the main appeal
but by no means they can be taken as exceptional circumstances to consider 
suspension/stay of execution of conviction.  As already discussed supra, the
exceptional circumstances shall be such that if stay of execution of conviction
is not granted, the appellant would suffer irreparable and irreversible loss and
even if  ultimately succeeds in the appeal, it would be of no use.  That is not
the case here.  In the instant case, the petitioner was dismissed from service
way back on 27-11-2013 as per the order of Chief Labour Commissioner (Central).
By virtue of the said order the Regional Labour Commissioner (Central) Hyderabad
passed consequential order dated 02-12-2013 and struck the name of the
petitioner from the roles of organisation and Region. Whereas the petitioner
filed the instant petition only on 24-01-2014 for grant of stay of execution of
conviction. As rightly argued by the learned Special Standing Counsel, long
prior to the date of petition he was already dismissed from service and so, the
question of petitioner suffering irreversible loss if stay of conviction is not
granted does not arise, as petition has already become infructuous.
10)     That apart the petitioner was convicted for the offences under PC Act. In
view of the nature of the offences involving moral turpitude of the petitioner,
I am not inclined to grant stay of execution of conviction.  So, in any view of
the matter, there are no merits in the petition.
11)     Accordingly, this Crl.A.M.P. is dismissed.
__________________________  
U. DURGA PRASAD RAO, J    
Date: 05.03.2014

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