$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI + [CASE NUMBER] in [CASE NUMBER] 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 [CASE NUMBER] NAVINDER KUMAR SHARMA Appellant Through: Mr. [ENTITY], Sr. Adv. with Dr. [ENTITY] & Mr. [ENTITY], Advs. versus [ENTITY] Respondent Through: Mr. [ENTITY], Standing Counsel with Mr. [ENTITY], Adv. + [CASE NUMBER] in CRL.A. 1077/2013 SUBHASH CHANDRA AGGARWAL Appellant Through: Mr. [ENTITY], Sr. Adv. with Dr. [ENTITY] & Mr. [ENTITY], Advs. [CASE NUMBER] in [CASE NUMBER], [CASE NUMBER] in [CASE NUMBER], Crl.M.B.1712/2013 in CRL.A.1077/2013, Page 1 of 12 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 off [CASE NUMBER] in [CASE NUMBER], [CASE NUMBER] in [CASE NUMBER], [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 418 [ACT], under [SECTION] [ACT] read with [SECTION] [ACT] and under [SECTION] read with [SECTION] of [ACT] and sentenced as under:
All the three appellants were sentenced to undergo two years rigorous imprisonment and a fine of Rs.5,000/-, in default one month simple imprisonment, each, for offence u/[SECTION] [ACT] read with [SECTION] [ACT] and for the offence u/[SECTION] [ACT] read with [SECTION] [ACT], three years rigorous imprisonment and a fine of Rs.10,000/-, in default two months simple imprisonment each;
[CASE NUMBER] in [CASE NUMBER], [CASE NUMBER] in [CASE NUMBER], Appellants [ENTITY] and [ENTITY] were sentenced to three years rigorous imprisonment and a fine of Rs.25,000/-, in default six months simple imprisonment each for offence u/s [SECTION] read with [SECTION] of the [ACT];
Appellant [ENTITY] was sentenced to undergo rigorous imprisonment for four years and a fine of Rs.25,000/-, in default six months simple imprisonment for offence u/s [SECTION] read with [SECTION] of the [ACT].
All the sentences were to run concurrently.
2. It is submitted by learned counsel for the appellants that they were proceeded against for allegedly entering into a criminal conspiracy with [ENTITY], [ENTITY] and [ENTITY] during the period October, 2002 to March 2003 to get building plans of property No.13, Kasturba Gandhi Marg, New Delhi regularised in violation of terms of lease deed, Master Plan of Delhi and the building bye-laws, 1999-2003 thereby causing wrongful loss to NDMC. They were also charged for abusing official position to obtain pecuniary advantage for [ENTITY] and [ENTITY] in getting the premises regularised.
3. It was submitted by learned counsel for the appellant [ENTITY] that the charges have not been proved by [ENTITY] since main accused [ENTITY] died during the proceedings of the case. The trial court has [CASE NUMBER] in [CASE NUMBER], [CASE NUMBER] in [CASE NUMBER], acquitted the Chief Architect [ENTITY] and the alleged beneficiary [ENTITY], hence no case of conspiracy is made out against the appellant. She was the Chairperson of NDMC and was to be guided by the technical and administrative advice given by the Chief Architect who is the administrative and technical head of the Unauthorised Construction Cell, hence there was no question of any misconduct or abuse of official authority by the appellant [ENTITY].
4. The noting file pertaining to the regularisation of the unauthorised construction of the premises shows the history of the premises and the circumstances leading to the regularization of the unauthorised construction. A perusal of this file disproves the charge that any unfair advantage was given to the beneficiaries by the appellants, or that any loss whatsoever has been caused to the NDMC.
5. The file relating to the regularization of the premises was being considered by the NDMC pursuant to orders passed by a Division Bench of this Court in [CASE NUMBER] and subsequent orders passed by the learned Appellate Tribunal, MCD in 2002. The building file of the premises was not traceable in NDMC, and was subsequently reconstructed. A detailed note dated 10.01.2003 made by the Junior Engineer (UC)N, was reviewed by [ENTITY] on 28.01.2003, who added several queries relating to betterment charges and permissible height. After being satisfied, he forwarded a one page note dated [CASE NUMBER] in [CASE NUMBER], [CASE NUMBER] in [CASE NUMBER], 07.02.2003 to appellant, setting out the suggested measures to be taken in detail. She marked the note `Pls. Discuss'and sent it back to [ENTITY]. On 13.02.2003, [ENTITY], in his capacity as the Chief Architect, affirmed that his technical proposal dated 07.02.2003 was within the limits of ground coverage and FAR and height provided in the Building Bye laws and therefore sought approval of the same. He also acknowledged discussing the matter with appellant on 07.02.2003. Based on this positive affirmation by the Chief Architect, appellant accorded her assent by way of her signature on 13.02.2003.
6. No loss has been caused to the NDMC, since compounding fees were charged on the entire covered area of their building except for the portions that was being sought to be demolished. The interest of the NDMC were fully taken care of and the appellant [ENTITY] ensured that compounding proposal was within the limits of ground coverage and FAR and height provided in the Building Bye laws as assured by the Chief Architect. Furthermore, the said notesheet clearly states that it is a conditional order enumerating four conditions and only upon their fulfilment, will the order dated 13.02.2003 would have come into operation. Therefore, the allegation of regularizing the unauthorised construction is ex facie incorrect. Therefore, apart from incorrect presumptions made by the learned Court, there is no material on record [CASE NUMBER] in [CASE NUMBER], [CASE NUMBER] in [CASE NUMBER], to prove that the appellants are guilty under [SECTION] [ACT] of any misconduct or for having abused official position in any way whatsoever.
7. The acts of the appellant on the basis of which charges have been framed were official acts and appellants ought to have been granted the benefit of [SECTION] of [ACT]. There are no allegations of demand or acceptance of any illegal gratification which is the sine qua non for proving charge under the [ACT].
[ENTITY] had been appointed as Chairman of NDMC between 01.11.2002 and 30.03.2003, however the condition for regularisation of the unauthorised construction has not been completed till date, hence there is no question of any offence having been committed by her. She has a good prima facie case to succeed in the appeal.
8. It was further submitted that 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 condition 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, pending the appeal, sentence be suspended.
[CASE NUMBER] in [CASE NUMBER], [CASE NUMBER] in [CASE NUMBER],
9. It was submitted by learned counsel for the appellants, [ENTITY] and [ENTITY] that after the matter was decided by the ATMCD and was referred to the Chief Architect for deciding it afresh, the same was considered in the light of the provisions of [SECTION] of the building bye-laws and the file was forwarded to the Chief Architect for examination and further decision, who approved the same subject to certain conditions. It is submitted by learned counsel for the appellants that the appellants have been convicted in the present case because of misinterpretation of the order of the ATMCD and wrong approach to the facts and circumstances of the case. It is also submitted that the learned Special Judge while passing the order of conviction has neither considered the cross-examination of any of the witnesses nor has put any questions u/[SECTION] relating to the facts.
10. It was further submitted that both the appellants were on bail throughout the trial and never misused the terms and conditions of the bail. The appellant [ENTITY] has an unblemished career throughout his service. He is on the verge of retirement. There is no apprehension of his absconding or fleeing from justice. Similarly [ENTITY] has throughout remained on bail and never misused the concession of bail; he is 65 years of age and is suffering from various diseases; he has deep roots in the society; he is not a previous convict; there are no chances of his absconding or fleeing from [CASE NUMBER] in [CASE NUMBER], [CASE NUMBER] in [CASE NUMBER], justice.
11. Reliance was placed on [ENTITY] vs. State of Delhi, 2008(1) JCC 564; [ENTITY] & Another v. State of Rajasthan, 2009(2) Scale 241 and [PRECEDENT].
12. The applications were opposed by learned Public Prosecutor for [ENTITY]. Reliance was placed on [PRECEDENT]; [PRECEDENT] and [ENTITY] vs. State of N.C.T. of Delhi, 2008 (16) SCALE 27.
13. [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.
[CASE NUMBER] in [CASE NUMBER], [CASE NUMBER] in [CASE NUMBER], (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
(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 [SECTION]; 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."
14. [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.
[CASE NUMBER] in [CASE NUMBER], [CASE NUMBER] in [CASE NUMBER],
15. 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], (2001) 6SCC 584 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 conviction order but they are seeking suspension of sentence only. [ENTITY]) 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 [CASE NUMBER] in [CASE NUMBER], [CASE NUMBER] in [CASE NUMBER], sentence and release the convict on bail during the pendency of the appeal in case the period of sentence does not exceed three years.
16. [ENTITY] & Another (supra) was also a case where the accused were awarded sentence of four years rigorous imprisonment with fine. The 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.
17. In the instant case also, the submissions made by learned counsel for the appellants on the factual matrix of the case have not been controverted by learned Public Prosecutor 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 [CASE NUMBER] in [CASE NUMBER], [CASE NUMBER] in [CASE NUMBER], of the case, the sentence of the appellants are ordered to be suspended till disposal of the appeal, subject to:-
(i) their furnishing personal bond in the sum of Rs.50,000/- each with two sureties in the like amount to the satisfaction of the learned Trial Court;
(ii) the appellants will not leave the country without the permission of this Court;
(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] (JUDGE) SEPTEMBER 24, 2013 as [CASE NUMBER] in [CASE NUMBER], [CASE NUMBER] in [CASE NUMBER],