Full Judgement
Delhi High Court
Yad Ram Singh Shami vs Central Bureau Of Investigation on 20 January, 2023
2023/DHC/000499
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 23rd December, 2022
Pronounced on: 20th January, 2023
+ CRL.M.A. 26853/2022 in CRL. A. 312/2021
SUBHASH CHAND JAIN ..... Petitioner
Through: Mr. Mir Akhtar Hussain, Ms.
Sonia Goswami and Mr. Abdur Rasheed,
Advs.
versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Through: Mr. Nikhil Goel, SPP and Mr.
Kartik Koushal, Advs.
CRL.M.A. 26997/2022 in CRL.A. 314/2021
P.K. MATHUR ... Petitioner
Through: Mr. Mir Akhtar Hussain, Ms.
Sonia Goswami and Mr. Abdur
Rasheed, Advs.
versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Through: Mr. Nikhil Goel, SPP with Mr. Vinay
Mathew, Advocate
CRL.M.BAIL. 1595/2022 in CRL.A. 311/2021
YAD RAM SINGH SHAMI ..... Petitioner
Through: Mr. Mir Akhtar Hussain,
Advocate
versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Through: Mr. Nikhil Goel, SPP with Mr. Vinay
Mathew, Advocate
Signature Not Verified
Digitally Signed
By:MANISH KUMAR Page 1 of 15
Signing Date:23.01.2023
20:34:05
2023/DHC/000499
CORAM:
HON'BLE MR. JUSTICE ANISH DAYAL
JUDGMENT
ANISH DAYAL, J.
1. By these applications, the appellants have sought suspension of the order on conviction dated 26thAugust, 2021 convicting the appellants till the final disposal of the appeals by this Court. These appeals arise out of a common judgment dated 26thAugust, 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 26thJune, 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 14thSeptember 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. Signature Not Verified Digitally Signed By:MANISH KUMAR Page 2 of 15 Signing Date:23.01.2023 20:34:05 2023/DHC/000499
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 28 thOctober, 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
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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
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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 Signature Not Verified Digitally Signed By:MANISH KUMAR Page 5 of 15 Signing Date:23.01.2023 20:34:05 2023/DHC/000499
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 Signature Not Verified Digitally Signed By:MANISH KUMAR Page 6 of 15 Signing Date:23.01.2023 20:34:05 2023/DHC/000499
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 Signature Not Verified Digitally Signed By:MANISH KUMAR Page 7 of 15 Signing Date:23.01.2023 20:34:05 2023/DHC/000499
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..."
(emphasis supplied)
(iii) In K.C. Sareen v. CBI, (2001) 6 SCC 584 it was held:
"10. A three-Judge Bench of this Court has elaborately considered the scope and ambit of the powers of the appellate court envisaged in Section 389 of the Code (vide Rama Narang v. Ramesh Narang [(1995) 2 SCC 513] ). Ahmadi, C.J., who authored the judgment for the Bench said that what can be suspended under Section 389(1) of the Code is the execution of the sentence or execution of the order and obviously the "order" referred to in the sub-section must be an order which is capable of execution. Learned Chief Justice then observed thus:
(SCC p. 524, para 15) "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. Since the order of conviction does not on the mere filing of an appeal disappear it is difficult to accept the submission that Section 267 of the Companies Act must be read to apply only to a „final‟ order of
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conviction. Such an interpretation may defeat the very object and purpose for which it came to be enacted." Nevertheless, the three-Judge Bench further stated that in a certain situation the order of conviction can be executable and in such a case the power under Section 389(1) of the Code could be invoked. The ratio of the judgment can be traced out in the said paragraph which is extracted below: (SCC pp. 524-25, para 16) "16. 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 consequences which are 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‟. If the attention of the court is not invited to this specific consequence which is likely to fall upon conviction how can it be expected to assign reasons relevant thereto? No one can be allowed to play hide and seek with the court; he cannot suppress the precise purpose for which he seeks suspension of the conviction and obtain a general order of stay and then contend that the disqualification has ceased to operate."
11. 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 Signature Not Verified Digitally Signed By:MANISH KUMAR Page 9 of 15 Signing Date:23.01.2023 20:34:05 2023/DHC/000499
suspension of conviction of the offence under the PC Act, dehors the sentence of imprisonment as a sequel thereto, is a different matter."
(emphasis supplied)
(iv) In Navjot Singh Sidhu v. State of Punjab, (2007) 2 SCC 574, the Hon'ble Supreme Court has held as under:
"6. 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."
(v) In Ravikant S. Patil v. Sarvabhouma S. Bagali, (2007) 1 SCC 673 has held as under:
"16.3. In K.C. Sareen v. CBI [(2001) 6 SCC 584 : 2001 SCC (Cri) 1186] it was held 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, its exercise should be limited to very exceptional cases. It was further held that merely because the convicted person files an appeal to challenge his conviction, the court should not suspend the operation of the conviction and the court has a duty to look at all aspects including the ramifications of keeping such conviction in abeyance. The Bench also noted that the evil of corruption has reached a monstrous dimension. While declining the prayer of the appellant for grant of an order of stay of conviction, the Bench observed that when conviction is on a corruption charge against a public servant, the appellate court should not suspend the order of conviction during the pendency of the appeal, even if the sentence of imprisonment is suspended. The Bench further observed that 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 Signature Not Verified Digitally Signed By:MANISH KUMAR Page 10 of 15 Signing Date:23.01.2023 20:34:05 2023/DHC/000499
abeyance till the disposal of the appeal or revision. These observations would equally apply when a prayer for stay of order of conviction is made so as to remove the disability to contest an election except, as already noted, in a very exceptional and rare case."
(emphasis supplied)
(vi) In State of Maharashtra v. Balakrishna Dattatrya Kumbhar, (2012) 12 SCC 384, the Hon'ble Supreme Court has held as under:
"15. Thus, in view of the aforesaid discussion, a clear picture emerges to the effect that the appellate court in an exceptional case, may put the conviction in abeyance along with the sentence, but such power must be exercised with great circumspection and caution, for the purpose of which, the applicant must satisfy the court as regards the evil that is likely to befall him, if the said conviction is not suspended. The court has to consider all the facts as are pleaded by the applicant, in a judicious manner and examine whether the facts and circumstances involved in the case are such, that they warrant such a course of action by it. The court additionally, must record in writing, its reasons for granting such relief. Relief of staying the order of conviction cannot be granted only on the ground that an employee may lose his job, if the same is not done."
(emphasis supplied)
(vii) In Lok Prahari v. Election Commission of India, (2018) 18 SCC 114, it has held as under:
"16. These decisions have settled the position on the effect of an order of an appellate court staying a conviction pending the appeal. Upon the stay of a conviction under Section 389 CrPC, the disqualification under Section 8 will not operate. The decisions in Ravikant S. Patil [Ravikant S. Patil v. Sarvabhouma S. Bagali, (2007) 1 SCC 673 : (2007) 1 SCC (Cri) 417] and Lily Thomas [Lily Thomas v. Union of India, (2013) 7 SCC 653 : (2013) 3 SCC (Civ) 678 : (2013) 3 SCC (Cri) 641 : (2013) 2 SCC (L&S) 811] conclude the issue. Since the decision Signature Not Verified Digitally Signed By:MANISH KUMAR Page 11 of 15 Signing Date:23.01.2023 20:34:05 2023/DHC/000499
in Rama Narang [Rama Narang v. Ramesh Narang, (1995) 2 SCC 513] , it has been well settled that the appellate court has the power, in an appropriate case, to stay the conviction under Section 389 besides suspending the sentence. The power to stay a conviction is by way of an exception. Before it is exercised, the appellate court must be made aware of the consequence which will ensue if the conviction were not to be stayed.
(emphasis supplied)
11. Culling out the principles enunciated in these decisions of the Hon'ble Supreme Court, the following points are emerge:
(i) The power of Court under Section 389(1) would include the power to suspend an order of conviction apart from the order of sentence.
(ii) The power to suspend an order of conviction should be exercised in very exceptional cases.
(iii) It is merely because the convicted person files an appeal in challenging of the conviction, the Court should not suspend the operation of the order of conviction.
(iv) Before exercising the power to suspend an order of conviction, the Appellate Court must be made aware of the consequences which will ensue if the conviction were not to be stayed.
12. Based upon these general principles postulated by the Hon'ble Supreme Court, fact situations where convictions were suspended mostly related to situations where a disqualification would befall the appellant under some other statute, which could not be undone. In Navjot Singh Sidhu (supra), the issue related to the disqualification of the appellant from being able to contest elections, which would otherwise have been irreversible, as also the offence alleged in that Signature Not Verified Digitally Signed By:MANISH KUMAR Page 12 of 15 Signing Date:23.01.2023 20:34:05 2023/DHC/000499
matter related to a time prior to the election for which the relief was being sought. In Rama Naran (supra), the disqualification in question related to Section 267 of the Companies Act which precluded the appellant from being appointed as a Managing Director of a company, during the pendency of the appeal against conviction, which could not have been undone later. However, other facts and circumstances did not fall within the range of exceptional cases in which such power of stay of conviction could be exercised. In A. Jaganathan(supra), the fact that the payment of stipend to the appellant was affected because of the conviction, was not considered as sufficient enough to be an exceptional case. Most importantly, in K.C. Sareen (supra), which holds the ground, in a matter related to the Prevention of Corruption Act, it was categorically held that when the conviction was on a corruption charge against a public servant, the Appellate Court should not suspend the order of conviction during the pendency of the appeal, even if the sentence of the imprisonment is suspended. This principle was reiterated in Ravikant S. Patil(supra) where the Hon'ble Supreme Court endorsed this opinion based on a sublime public policy that the convicted public servant should be kept under the disability of conviction in spite of the sentence of imprisonment being in abeyance pending the disposal of the appeal.
In this context preference may also be made to the decision of the Hon'ble Supreme Court in Union of India v Atar Singh & Anr., (2003) 12 SSC 434 where the stay of conviction by the High Court was set aside by the Hon'ble Supreme Court in a case concerning a conviction under Prevention of Corruption Act on the ground that removal of the delinquent government servant from service was not a
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sufficient ground inviting a suspension of conviction and the discretion by the High Court ought not to have been exercised.
13. In the facts of the present case, it is evident firstly, that the case relates to offences under the Prevention of Corruption Act and therefore falls within the situation contemplated in K.C. Sareen (supra), and would not deserve a suspension of sentence; secondly, the appellants have admittedly received all the retiral benefits along with interest, pursuant to the CBI having filed a closure report on 6thNovember 2008 and not recommending any departmental action to the CVC; thirdly, the decisions of this Court which the appellants rely upon both relate to show cause notice of termination against the appellants, which is not the case here since the appellants have now retired, received their retired benefits and are only canvassing against the possibility of the withdrawal of pension in full; fourthly, granting any such relief as sought for by the appellants, merely on the account of medical expenses required for personal exigencies, would open up floodgates for all those whose appeals are pending to be granted pensionary benefits upon suspension of the conviction. The counsel for the CBI has vehemently contended that this would open up a "Pandora's Box" for convicts under the Prevention of Corruption Act wanting to secure their pensionary benefits of their service despite convictions not having been overturned in appeal. Such a situation would also create issues of restitution of the State in the event the appellants do not succeed in the appeal.
14. In these facts and circumstances and on an application of principles enunciated by the Hon'ble Supreme Court, this Court is of the considered opinion that the appellants are not entitled to the relief Signature Not Verified Digitally Signed By:MANISH KUMAR Page 14 of 15 Signing Date:23.01.2023 20:34:05 2023/DHC/000499
they have sought in the application. It is understandable that the necessity to press for a stay of conviction arose on the possibility of the NDMC imposing a penalty or withdrawal of pension in full considering that the appellants were convicted, however it would not be appropriate to grant them a stay of the conviction at this stage merely since the pension would be affected. In case the conviction is indeed set aside eventually in the appeals the petitioners may choose to exercise their rights, if any, in accordance with law for NDMC and relevant authorities to consider granting them their pensionary benefits at that stage.
15. Applications are therefore disposed of in the above terms.
16. Judgment/order be uploaded on the website of this Court.
ANISH DAYAL, J
JANUARY 20, 2023/RK
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