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RAJA RAM versus STATE OF PUNJAB

High Court of Punjab and Haryana, Chandigarh

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Raja Ram v. State of Punjab - CRM-60268-M-2006 [2006] RD-P&H 7634 (22 September 2006)

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

Date of Decision:- 28.9.2006

Raja Ram ..Petitioner

Vs.

State of Punjab

...Respondent

CORAM: HON'BLE MR.JUSTICE RANJIT SINGH
Present: Mr.Vikram K.Chaudhri, Advocate for the petitioner.

-----

RANJIT SINGH, J.

The prayer made in the present petition filed under section 482 Cr.PC is for setting aside the order passed by the Additional Sessions Judge, Ferozepur declining the prayer of the petitioner for suspending his conviction recorded under section 408 IPC. The petitioner, who was charged for offences under sections 408, 409, 465, 468, 471 and 120-B IPC and was convicted for an offence under section 408 IPC by the Judicial Magistrate Ist Class, Abohar, preferred an appeal against the same before the Additional Sessions Judge, Ferozepur, who while admitting the same stayed the sentence of RI of 2 years awarded to the petitioner. Thereafter, the petitioner moved an application under section 389 (1) Cr.PC praying for staying the suspension of his conviction under the aforesaid section on the ground that the petitioner, who was serving as Inspector in the Department of Co-operative Societies, Punjab, was likely to suffer the effect of this conviction and may lead to his termination. It was further pleaded that the petitioner had also been proceeded against departmentally for the same set of allegations as set out in the FIR and that he was let off by awarding a warning as the charges against him were not considered grave and serious.

Pleading that it would be a travesty of justice and violation of Article 21 of the Constitution of India in case the conviction recorded by the trial court would result in adversely affecting the service of the petitioner for the allegations for which he had just been warned. The said application was rejected by Additional Sessions Judge, Ferozepur vide his order dated 23.9.2006 by holding that the allegations levelled against the petitioner were quite serious in nature for which he stood convicted. The Judge, accordingly, found that no ground was made out for suspending the conviction of the petitioner. It is against this order that the petitioner has filed the present petition under Section 482 Cr.PC for setting aside the order.

Mr.Vikram K.Chaudhri, Advocate appearing on behalf of the petitioner mainly submitted that the conviction recorded against the petitioner can be stayed in this case as he had been exonerated in the departmental inquiry for the same allegations for which he has been convicted and awarded the sentence. In this regard, the counsel placed reliance on the case of G.L.Didwana and another Versus Income Tax Officer and another 1995 Supp (2) Supreme Court Cases 724.

The first question that would arise in this case may relate to the maintainability of the present petition. It was pointed out to the counsel that the appeal in this case is still pending before the Additional Sessions Judge, Ferozepur and whether under such circumstances, it would be open for this Court to entertain this petition under Section 482 Cr.PC to suspend the conviction of the petitioner when no case or appeal is pending before this Court for being adjudicated on merits. Only answer the counsel could give was that pending any appeal, execution of the sentence or the conviction appealed against can be suspended. On further query, the counsel could not confirm if the order passed in the inquiry exonerating the petitioner had been placed before the trial or appellate Court while praying for suspension of the conviction. Incidentally, this order had also not been placed on record in the present petition. The perusal of the petition would show that only prayer made in this petition is for setting aside the order dated 23.9.2006 passed by the Additional Sessions Judge, Ferozepur. No prayer has been made for suspending the conviction except for saying that ad interim stay suspending the conviction may be granted during the pendency of the petition.

Section 389 Cr.PC governs the suspension of sentence pending appeal and for release of appellant on bail. Section 389 (1) Cr.PC provides that pending any appeal by a convicted person, the appellate Court may, for reasons to be recorded by it in writing, order that execution of the sentence or order appealed against be suspended and, also, if he is in confinement that he be released on bail. Though the counsel for the petitioner did not rely on the provisions of Section 389 (2) Cr.PC, but this Section seems to be conferring the power on the High Court as are available with the appellate Court in case of an appeal by a convicted person to a Court subordinate thereto. Section 389 (2) Cr.PC says:-

"The power conferred by this section on an appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto." This petition, filed under Section 482 Cr.PC is obviously with a prayer for exercise of inherent powers by this court to set aside the order passed by the Additional Sessions Judge, Ferozepur while exercising the powers of appellate Court. The application moved before Additional Sessions Judge seeking suspension of conviction placed on record as Annexure P-4, would show that it was filed under Section 389 (1) Cr.PC.

Would it now be open for the petitioner to invoke inherent jurisdiction under Section 482 Cr.PC in view of the provisions of Section 389 (2) Cr.PC reproduced above. Besides some other exceptions to the exercise of inherent powers under the provisions of Section 482 Cr.PC, this power is not to be resorted to of there is specific provisions in the Code for redress of grievances of aggrieved party. In other words, it can not be invoked in respect of any matter covered by the specific provisions of the Code.

Section 389 (2) Cr.PC apparently covers this matter and as such the present petition filed under Section 482 Cr.PC cannot be held maintainable. In ---------Versus--------AIR 1945 P.C.94, it was held that the High Court had no inherent power and Section 389 was the only Section which refers to grant of bail to a convicted person. Then Rajasthan High Court in _____Vs._____1988 Crl.L.R. (Raj.) 485 also held that order relating to suspension of sentence is passed under Section 389 of the Code and under Section 482 of Code. It may need a notice here that powers to suspend execution of sentence and the order appealed is jointly provided under Section 389 of Code and as such same principles would govern the exercise of powers whether it be a suspension of sentence or order appealed against.

Though Section 389 of Code contemplates suspension of sentence by appellate Court only pending appeal, yet provisions of Section 389 (2) tend to indicate that the High Court may also exercise the powers conferred on the appellate Court in those cases where appeal is filed by a convicted person to a Court subordinate thereto. From the aforementioned, I am inclined to hold that the present petition under Section 482 of the Code would not be maintainable. It has also been viewed that it would be inappropriate to exercise inherent jurisdiction/power when Court refuses relief by exercising discretion. AIR 1958 Bombay 406 can be seen in this regard.

Even on merits, no case is made out to suspend the conviction of the petitioner or to interfere in the order passed by Additional Sessions Judge. The sole ground pleaded by the petitioner in this regard is that he has been exonerated in the departmental inquiry for the same very allegations and as such the criminal prosecution cannot continue under any circumstance whatsoever. Though it has been averred in the petition that the petitioner was completely absolved of the charges, but said findings of the inquiry proceedings have not been placed on record. In para 4 (iv) of the petition, it is averred that:-

"That the learned trial Court has utterly failed to appreciate that in the departmental proceedings the petitioner was completely absolved of the charges and he was merely warned for being careless."

This averment is in contrast with the plea raised in this regard in the application moved before the appellate Court, Annexure P4. In para No.5 of Annexure P4, it is recorded that "the applicant was proceeded against departmentally also on the same allegations as set out in the FIR.

However, as the charges against him were not considered to be grave and serious, he was let off with a warning." In application, Annexure P4, the petitioner never pleaded that he was 'completely absolved' as averred in the present petition. The order passed in the departmental proceedings, as already noticed, is not forthcoming. It appears that the petitioner has made a deliberate attempt to mis-state the facts, which may lead to mislead the Court. The petitioner apparently has not been completely absolved as otherwise he would not have been warned, which fact in fact is admitted by him. Warning is a punishment, though a minor one, and is awardable under the provisions of the Service Rules. The sole basis, to seek suspension of conviction i.e. exoneration of the petitioner, does not appear to be existing in the present case. If the petitioner has not been absolved of the allegations in the departmental proceedings, his plea that his prosecution cannot be continued is without basis. Perhaps, realizing this difficulty, the petitioner has not placed the order passed in the departmental proceedings either before the appellate Court or with the present petition. The judgment relied upon by the counsel for the petitioner is not at all applicable to the facts of this case. G.L.Didwania's case (supra) was a case where prosecution had been launched for making a false statement before the Income Tax authority. The petitioner Didwania, in the said case, had allegedly stated that M/s Young India Transport Company was not owned by him and thus had intentionally concealed the income of the said Company, which income really belonged to him. On the same allegations, assessing authority had proceeded against him for concealing his income derived from 'Y' Company. In appeal filed against the assessment order, the appellate Tribunal set aside the finding of the assessing authority by holding that there is no material to show that 'Y' Company belonged to assessee. It was in this background that Dadwania filed a petition before the Magistrate to drop the criminal proceedings against him. It is on the basis of these facts that the Hon'ble Supreme Court observed that "if that is the position then we are unable to see as to how criminal proceedings can be sustained." Ratio of this case would not apply to the instant case and rather has no applicability.

There is no evidence or material on record to show that the petitioner earlier had been absolved. Rather the record clearly reveals that he was awarded punishment of warning. It is further required to be noticed that criminal proceedings had not been launched against the petitioner on the basis of any statement made by him or on any finding returned by any Tribunal that he had made any false statement etc. The petitioner had been prosecuted for a criminal offences, as already noticed, and has been convicted for an offence under section 408 IPC on the basis of the evidence led before the Court.

Here is not a case where criminal prosecution is in progress that departmental proceedings can have any effect thereupon. The finding of the Magistrate is based on the evidence led by the prosecution as well as the defence. The finding of the Magistrate in this regard is as under:- "As a sequel to my above discussion, after appreciating and evaluating the evidence led by the prosecution and defence, the court comes to the considered opinion that prosecution, in the present case, has been able to prove its allegations regarding charge No.2 i.e. between 5.1.1986 to 28.12.1986, accused Mohinder Pal working as Secretary, Gurmel Singh working as Salesman, Surinder Kumar working as Cashier, Raj Kumar working as Manager, Ram Chand working as Cashier-cum- Manager, Raja Ram working as Inspector, Darshan Singh as Presiding of the Executive Committee of the Co-operative Agriculture Service Society, Burj Hanumangarh, embezzled an amount of Rs.2,41,779-25 Paise having dominion over that property and thereby committed an offence of criminal breach of trust with respect to this amount, punishment u/s 408 IPC, for which, they are liable to be held guilty under the said section."

How a departmental proceedings or findings returned by any departmental officer would have an affect on a finding returned by a Court trying a criminal charge cannot be appreciated. The finding in this case has been returned after appreciation and analysis of the evidence. The standard of proof is rather stringent in determining a criminal liability vis a vis the finding required to be made in departmental proceedings. Such a course if allowed to be adopted, would, in my opinion, can lead to miscarriage of justice in large number of cases. It cannot be discounted that the finding in the departmental proceedings is not given by a trained mind or a Judge whereas the finding in the criminal trial is by a Judge, who does so on the basis of the legal principle laid down and fine-tuned on account of experience that he carries by holding such trial on daily basis. Any finding given by a person holding a departmental proceeding, as such cannot be allowed to have any effect on the judicial verdict given in a criminal trial. If that is permitted or allowed, it may amount to ousting of jurisdiction of the criminal court. Such a course is certainly not permissible or cannot be permitted under any provisions of law.

Since I am not inclined to interfere in thiscase on merits, I am not going into the aspect of permissibility of suspension of conviction. It was observed by Hon'ble supreme Court in Rama Narang vs. Ramesh Narang and Ors. J.T. 1995 (1) S.C.515 that, "what can be suspended under this provision is the execution of sentence or execution of the order. Does 'order' in Section 389 (1) mean an order of conviction or an order similar to the one under Section 357 or 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 it not capable of execution under the Code." Relying on Rama Narang's case (supra), Hon'ble Supreme Court in K.C.Sareen Vs. C.B.I.Chandigarh, 2001 (3) RCR (Criminal) 718, held that though the power to suspend an order of conviction, apart from order of sentence, is not a lien to Section 389 (1) of the Code, its exercise should be limited to very exceptional cases. This was so held in this case, based on the observation made in the case Rama Narang to the effect that in certain situations, the order of conviction can be executable and in such a case, the power under section 389 (2) of the Code could be invoked. Having said so, Supreme Court in K.C.Sareen's case went on to hold that when conviction is on a corruption charge against a petitioner, 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.

Present one is a case of embezzlement. In some case, this Court and some other High Court have suspended conviction. See Roop Chand vs. State of Punjab, 2005 (2) RCR (Criminal) 799, Hari Narayan Vs. State of Rajasthan, 2005 (2) RCR (Criminal) 507 and K.Bhagyanath Vs. State, 2003 (1) RCR (Criminal) 145. However, some other High Courts have taken a contrary view and have held that conviction being not an executable order can not be suspended and would remain in force till it is set aside in appeal or in revision. See 1993 Crl.L.J.558. I need not go into this aspect any further as Criminal Misc.No.60268-M of 2006

it is not directly in issue in the present petition.

In view of above discussion, this petition is without any merit and is, accordingly, dismissed.

(Ranjit Singh)

Judge

28.9.2006

AS


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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