$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI + [CASE NUMBER] in CRL.A. 986/2013 Date of Decision: 24th September, 2013 SMT. P.M SINGH Appellant Through: Mr. [ENTITY], Sr. Adv. with Mr. [ENTITY],Ms. [ENTITY], Mr. Shri [ENTITY] Mr. [ENTITY], Ms. [ENTITY], Mr. [ENTITY] & Ms. [ENTITY], Advs. versus [ENTITY] Respondent Through: Mr. [ENTITY], Standing Counsel with Mr. [ENTITY], Adv. + [CASE NUMBER] in CRL.A. 1031/2013 DR. G.S.THIND Appellant Through: Dr. [ENTITY] with Mr. [ENTITY] & Mr. [ENTITY], Advs. versus [ENTITY] Respondent Through: Mr. [ENTITY], Standing Counsel with Mr. [ENTITY], Adv. + Crl.M.B. 1649/2013 in CRL.A. 1029/2013 DR. R. PAL Appellant Through: Mr. [ENTITY], Sr. Adv. with Mr. [ENTITY] & Mr. [ENTITY], Advs. versus [ENTITY] Respondent Through: Mr. [ENTITY], Standing Counsel with [CASE NUMBER] in [CASE NUMBER], [CASE NUMBER] in [CASE NUMBER], [CASE NUMBER] in Crl.A.No.1029/2013 and [CASE NUMBER] in [CASE NUMBER] Page 1 of 13 Mr. [ENTITY], Adv. + [CASE NUMBER] in CRL.A. 1030/2013 SH.RAJ KUMAR GUPTA Appellant Through: Mr. [ENTITY] with Mr. [ENTITY], Advs. versus [ENTITY] Respondent Through: Mr. [ENTITY], Standing Counsel with Mr. [ENTITY], Adv. CORAM: HON'BLE MS. JUSTICE [ENTITY] JUDGMENT
:[ENTITY], J.
1. Vide this common order, I shall dispose of [CASE NUMBER] in [CASE NUMBER], [CASE NUMBER] in [CASE NUMBER], [CASE NUMBER] in [CASE NUMBER] and [CASE NUMBER] in [CASE NUMBER] as the applications have been filed in respective appeals against a common judgment dated 23.07.2013 and order on sentence dated 31.07.2013 wherein the appellants were convicted for offences punishable u/[SECTION] [ACT] read with Section 420 [ACT] and under Section [SECTION] read with Section 13(i)(d) of [ACT] and under Section 13(1)(d) punishable under Section [SECTION] of the [ACT]. The appellants were sentenced as under:-
[CASE NUMBER] in [CASE NUMBER], [CASE NUMBER] in [CASE NUMBER], Three years rigorous imprisonment and a fine of Rs.10,000/-each, in default two months simple imprisonment, each, for offence u/[SECTION] [ACT] read with Section 420 [ACT] and Section [SECTION] read with Section 13(1)(d) of [ACT]; Four years rigorous imprisonment and a fine of Rs.25,000/- , in default six months simple imprisonment for offence u/s [SECTION] read with Section 13(1)(d) of [ACT].
All the sentences were to run concurrently.
2. The charge against the appellants are that they entered into a conspiracy with co-accused [ENTITY], proprietor of M/s Centre Point, 13 K.G Marg, New Delhi and issued health licence to [ENTITY] by abusing their official position.
3. It is submitted by learned senior counsel for the appellant [ENTITY] that the appellant was not the competent authority to grant the health licence hence there was no question of any misconduct or abuse of official authority. Admittedly, the competent authority was the Medical Officer of Health (MOH), who in fact granted the said permission vide his note dated 15.01.2003. When the appellant [ENTITY] did not even have the power to issue the health licence, the question of abuse of power did not arise, and hence the charges framed in this regard have not been proved against her. In any event, [ENTITY] received a detailed technical note dated 15.01.2003 written [CASE NUMBER] in [CASE NUMBER], [CASE NUMBER] in [CASE NUMBER], by the then Chief Medical Officer (CMO), Dr. [ENTITY] which was endorsed by the MOH, Dr. [ENTITY]. This note relied on the modified Master Plan of Delhi which clearly stated that the request of the applicant therein was justified and could be considered under the provisions of the modified Master Plan. Further the note of Dr. [ENTITY] very clearly records that the license has been renewed and the note was put up only for the information of the Chairperson. The note sheet received by the appellant dated 15.01.2003 was tampered with subsequently and the endorsement of the MOH contained significant interpolations hence there is no question of the appellant [ENTITY] having entered into any conspiracy with any other accused persons. The acts of the appellant on the basis of which charges have been framed were official acts and she should have been granted the benefit of [SECTION] of [ACT].
4. She has a good prima facie case to succeed in the appeal; she is a senior citizen, aged about 64 years; she had contested the case for about 10 years and has been on bail throughout the case. She never misused the privilege of bail and never violated any of the conditions of bail throughout the trial; she had an unblemished record of public service; she also worked as Member Secretary for Delhi Commission for Women after her retirement in 2009; she has an aged and ailing mother, besides her husband; there is no apprehension that she will flee or abscond, as such, the sentence be suspended pending disposal of the [CASE NUMBER] in [CASE NUMBER], [CASE NUMBER] in [CASE NUMBER], appeal.
5. Seeking suspension of sentence, it was submitted by counsel for the appellant, Dr. [ENTITY] that there is actually no criminal case. The question of re-entry and issue of licence from hygiene point of view are matters of civil nature which can be corrected by deposit of the required amount with L&DO. There is no complainant and [ENTITY] claims source information. The learned Trial Court mislead about re-entry and vesting of property in the President of India of Centre Point allegedly in 1999 and cancellation of health licence in 2000 on the basis of re-entry, intimation in 1999. The cancellation of licence was not correct on the said basis as this property had been re-entered way back on 03.02.1986 and the NDMC and its Administrator was fully aware of it. Despite the said re-entry in 1986 and not withdrawn till date (not at least till 2005), the Centre Point was running continuously from 1982 to 2004 and even now. The resolution of [CASE NUMBER] is on record that re-entry is matter between lessor and lessee. The sanction was also bad for this reason. The note sheets clearly show that all the facts were mentioned. The health officers were cheated by [ENTITY] and shown only the notification of 1999 without its guidelines and not being legal persons accepted the notification for mixed use which does not make them criminal. Everything was done with the approval of CMO, MOH and the Chairman. There is not a whisper that any of the accused took any [CASE NUMBER] in [CASE NUMBER], [CASE NUMBER] in [CASE NUMBER], benefit from [ENTITY] or his wife [ENTITY]. The main beneficiary have been acquitted. Moreover the sanction order by Ms. [ENTITY] is bad for want of authority in Chairperson NDMC for issue of sanction for prosecution of the appellant. The same is bad for non- application of mind. The sine qua non for prosecution u/[SECTION] of [ACT] is demand and acceptance. There is not even a whisper that any demand was made by the appellant or any of the accused or any pecuniary or any other gain was obtained by any of the accused. Raid was conducted on the residence of the appellant and nothing was recovered. Cheating, if any, was done by [ENTITY] in not submitting the guidelines. The appellant is 66 years of age; he is suffering from number of ailments; he was not arrested and has been on bail for the past eight years and he never misused the bail.
6. On behalf of Dr. [ENTITY] and Sh. [ENTITY], it is submitted by learned counsel for the appellants that one hotel in the name and style of M/s Centre Point Hotel with 10 rooms and 20 beds came into existence at 13, K.G. Marg, New Delhi in the year 1979. Registration/licence to run the guest house was granted on 27.08.1980. The first NDMC Health Licence was approved by the then Administrator, NDMC Shri [ENTITY] on 10.05.1984 for 16 rooms and 32 beds after receipt of NOC from DDA. The licence for the year 1999 to 2000 was approved. In the meanwhile, Dy. L & D.O., Ministry [CASE NUMBER] in [CASE NUMBER], [CASE NUMBER] in [CASE NUMBER], of Urban Development, Government of India, New Delhi had informed NDMC that premises situated at 13, Curzon Road had been re-entered and vested with the President of India. Col. [ENTITY] had ordered for cancellation of health licence to M/s Centre Point on 27.12.1999 which decision was duly communicated to Sh. [ENTITY]. However, no action was taken by L& D.O and M/s Centre Point continued to run its business without health licence.
7. On 20.11.2002, an application was received for renewal of lodging house licence from Sh. [ENTITY] in the office of Dr. [ENTITY], the then MOH who marked the application to Sh. [ENTITY], Sanitary Inspector-V on the same day. Sh. [ENTITY] put up a note stating therein that the licence could not be renewed. Dr. [ENTITY], the then CMO requested Dr. [ENTITY] to advice on the matter who called upon the party to submit certain documents. Subsequently on 23.12.2002, an undated letter was received from Sh. [ENTITY] along with a copy of notification dated 07.05.1999 where mixed land use was allowed in residential areas, subject to certain conditions. Dr. [ENTITY] marked the same to Dr. [ENTITY], CMO(Lic & Mal.) who further marked it to the appellant [ENTITY]. After inspecting the premises in question from health point of view on 26.12.2002, appellant [ENTITY] recommended the renewal/grant of health licence to the lodging house with 31 rooms and 62 beds on temporary basis till such time some final [CASE NUMBER] in [CASE NUMBER], [CASE NUMBER] in [CASE NUMBER], decision is taken by DDA/L&D.O. Thereafter the matter was considered by Dr. [ENTITY], Dr. [ENTITY] and Chairperson Smt. [ENTITY] and the health licence was renewed for the year 2003-2004 on 28.01.2003 under the signature of Dr.[ENTITY].
8. It was submitted that the appellants have been sentenced for a fixed period of sentence and there are no exceptional circumstances warranting the rejection of their prayer for suspension of sentence. Further the disposal of the appeal is likely to take considerable time and in the event the sentence is not suspended, the same would render the present appeals infructuous. It was urged on behalf of Dr.[ENTITY] that he is aged about 63 years and is suffering from various ailments. He has two daughters and there is no other male member in the family; he has an unblemished exemplary record of service and there are no criminal antecedents; he has deep roots in the society and there are no chances of his absconding or fleeing away from justice; he was on bail through the trial and never misused the concession of bail. Similarly on behalf of the appellant [ENTITY], it was submitted that he is a heart patient and has undergone heart surgery in 2007; he has an unblemished and exemplary record of service and is still in service. There are no chances of his absconding or fleeing from justice.
9. Reliance was placed on [ENTITY] vs. State of Delhi, 2008(1) JCC 564; [ENTITY] & Another v. State of Rajasthan, 2009(2) [CASE NUMBER] in [CASE NUMBER], [CASE NUMBER] in [CASE NUMBER] and [PRECEDENT].
10. The applications were opposed by learned Public Prosecutor for [ENTITY]. Reliance was placed on State of Punjab v. [ENTITY], (2007) 11 SCC 319; [PRECEDENT] and [ENTITY] vs. State of N.C.T. of Delhi, 2008 (16) SCALE 27.
11. [SECTION] of the [ACT] reads as under:
"389. Suspension of sentence pending the appeal; release of appellant on bail.-
(1) 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, that he be released on bail, or on his own bond.
[Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release:
Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.
(2) 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. (3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,-
(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or [CASE NUMBER] in [CASE NUMBER], [CASE NUMBER] in [CASE NUMBER],
(ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub- section (1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.
(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced."
12. [ENTITY] was a case under the [ACT] and the respondent was sentenced to 1-1/2 year rigorous imprisonment and fine of Rs. 1,000/-. He preferred an appeal in which an application was filed by him for suspending conviction u/[SECTION] of the [ACT] The application was allowed and conviction of the appellant was suspended during the pendency of the appeal. State of Punjab preferred an appeal before Hon'ble Supreme Court and an application was filed for vacation of stay of conviction granted to the accused with a prayer to recall the same. Hon'ble Supreme Court observed that the order of suspension of conviction is not to be readily granted.
13. Possible delay in disposal of the appeal and that there are arguable points by itself may not be sufficient to grant suspension of a sentence. The grounds do not suggest that the respondent was proceeded against by the State, mala fide or in any bad faith. Relying upon K.C. Sareen vs.[ENTITY], [CASE NUMBER] in [CASE NUMBER], [CASE NUMBER] in [PRECEDENT] and [PRECEDENT], the order was set aside. It was rightly submitted by learned counsel for the appellants that this case is distinguishable inasmuch as in that case the order of conviction was suspended and in the instant case the appellants are not seeking stay of the eviction order but they are seeking suspension of sentence only. [ENTITY] (supra) was a case where the accused was convicted u/[SECTION] [ACT], yet keeping in view his age (70 years), the sentence was suspended and he was released on bail. Although in [ENTITY]'s case (supra) which was also a case u/[SECTION] and [SECTION] of the [ACT], the sentence was not suspended and directions were given to the High Court to dispose of the appeal as early as practicable. However, in [ENTITY]'s case (supra) which was also a case u/[SECTION] and [SECTION] of [ACT], the sentence was suspended by observing that [SECTION] [ACT] empowers the Trial Court to suspend the sentence of such convicts, who have been convicted for a period not exceeding three years, for such period as will afford them sufficient time to present an appeal. [SECTION] also empowers the appellate Court including the High Court to suspend the sentence and release the convict on bail during the pendency of the appeal in case the period of sentence does not exceed three years.
14. [ENTITY] & Another (supra) was also a case where the accused were awarded sentence of four years rigorous imprisonment with fine. The [CASE NUMBER] in [CASE NUMBER], [CASE NUMBER] in [CASE NUMBER], sentence was suspended and appellants were granted bail. In [ENTITY]) and [ENTITY]), it was held that when a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances. No exceptional circumstances were highlighted, as such, the sentence was suspended and the appellants were released on bail.
15. In the instant case also the statements made by learned counsel for the appellant on factual matrix of the case have not been controverted by learned PP for [ENTITY] except placing reliance on the authorities as referred above. It is the case of the appellants that they were on bail throughout the trial and never misused the concession of bail. They have raised arguable points which requires consideration. They have deep roots in the society; there are no chances of their fleeing from justice; it is likely to take time for the appeal to be heard, under the circumstances, keeping in view the totality of the facts and circumstances of the case, the sentence of the appellants are ordered to be suspended till disposal of the appeal:-
(i) On their furnishing personal bond in the sum of Rs.50,000/- each with two sureties in the like amount to the satisfaction of the Trial Court;
(ii) The appellants will not leave the country without the permission of this Court;
[CASE NUMBER] in [CASE NUMBER], [CASE NUMBER] in [CASE NUMBER],
(iii) They will surrender their passport, if not already surrendered.
The applications are accordingly disposed of.
Copy of this order be given dasti under the signature of Court Master.
[ENTITY], J SEPTEMBER 24, 2013 as [CASE NUMBER] in [CASE NUMBER], [CASE NUMBER] in [CASE NUMBER],