IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8623 OF 2003 WRIT PETITION NO. 8623 OF 2003 WRIT PETITION NO. 8623 OF 2003 Hari Krishan Hirani ...Petitioner V/s. Union of India & Ors. ...Respondents Shri Ashok Dhamija and Shri Sandeep Marne for the Petitioner. Shri T.C. Kaushik for the Respondents. CORAM : D.K. DESHMUKH & CORAM : D.K. DESHMUKH & CORAM : D.K. DESHMUKH & V.M. KANADE, JJ. V.M. KANADE, JJ. V.M. KANADE, JJ. DATED : MARCH 17, 2008 DATED : MARCH 17, 2008 DATED : MARCH 17, 2008 P.C. :- P.C. :- P.C. :- 1. By this petition, the petitioner is challenging the judgment and order dated 17th April, 2003 passed by the Central Administrative Tribunal in O.A. No.633/2002. He is also seeking a direction directing that the Order dated 26th May, 2000 passed by the respondent no.3 and the Order dated 20th July, 2001 passed by the respondent no.1 be quashed and set aside. 2. Brief facts in nutshell are as under :- . The petitioner was appointed on 30th July, 1982 as an Appraiser in the Customs Department. On 29th - 2 - December, 1987, the Disciplinary Authority passed an order of suspension on the ground that investigation was being carried out by the CBI against the petitioner. In 1992, Disciplinary Authority granted sanction to prosecute the petitioner. On 7th March, 1994, the Disciplinary Authority issued charge-sheet under Rule 14 of the CCS (CCA) Rules, 1965. In the meantime, the criminal trial against the petitioner began sometime in February 1997 and he was convicted by the Special Judge under the offences punishable under Section 120B of the IPC and 5(1)(d) of the P.C. Act, 1947. Against this order of conviction, the petitioner preferred appeal in the High Court and this court on 26th August, 1997 was pleased to stay the sentence and the order appealed against under Section 389(1) of Cr.P.C. Thereafter, on 26th May, 2000, the petitioner was dismissed from service. Against this order, the petitioner preferred an appeal. This appeal was also rejected by respondent no.1 on 20th July, 2001. Being aggrieved by the said order, the petitioner preferred O.A.No.633/2002 before the Central Administrative Tribunal. This application was also dismissed. - 3 - 3. The learned Counsel appearing on behalf of the petitioner submitted that this Court had suspended the sentence and conviction, the Disciplinary Authority could not have passed the impugned order terminating his services. He submitted that the effect of the said order passed by the High Court was that order of conviction did not exist and since it was stayed by this Court, therefore, the Disciplinary Authority could not have passed the impugned order of termination. He invited our attention to the order passed by the Division Bench of this Court on 26th August, 1997 in Criminal Application No.2224/1997 in Criminal Appeal No.465/1997. He also relied on the judgment of the Apex Court in the case of Rama Narang V/s. Ramesh Narang and Rama Narang V/s. Ramesh Narang and Rama Narang V/s. Ramesh Narang and others, reported in (1995) 2 SCC 513. others, reported in (1995) 2 SCC 513. others, reported in (1995) 2 SCC 513. He submitted that the Tribunal had failed to appreciate the term ’Order appealed against’ in Section 389 of Cr.P.C. essentially included conviction as held by the Supreme Court in the case of Rama Narang (supra) Rama Narang (supra) Rama Narang (supra). He further submitted that the Tribunal had failed to consider the fact that since this Court had suspended the conviction of the - 4 - petitioner under Section 389 of the Cr.P.C., Rule 91 of the CCS (CCA) Rules could not have been invoked by the Disciplinary Authority while dismissing the petitioner from service. 4. We have perused the impugned judgment and order passed by the CAT. Section 389 of the Cr.P.C. empowers the Court to suspend the order of sentence and the order appealed against it. Section 389 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 - 5 - 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 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 (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 executed in computing the term for which he is so sentenced." Perusal of the Section clearly indicates that the Court can suspend the sentence and the order of appeal against for reasons to be recorded in writing. In the present case, the petitioner had filed the Criminal Application - 6 - No.2224/1997 in Criminal Appeal No.465/1997 seeking the following reliefs :- A) pending the hearing and final disposal of this Appeal, the execution of the sentence in Special Case No.51/90 passed by Special Judge, Mumbai, be suspended and the Applicant be enlarged on bail in the same amount as ordered by the Trial Court in its order dated 26th June, 1997 with only fresh bonds to be furnished. b) Pending the hearing and final disposal of this Appeal, the order of conviction of Special Judge, Mumbai, in Special Case No.51/90 dated 26th June, 1997 be suspended. On this application, the following order was passed by the Division Bench (Coram : Vishnu Sahai and T.K. Chandrasekhara Das, JJ.) dated 26th August, 1997 :- "Considering the circumstances that the applicant has been sentenced to undergo 7 years RI, was on bail in the court below, and did not misuse the same, and as his appeal would take a considerable time for disposal we think it expedient to enlarge him on bail provided he furnishes a personal bond of Rs.50,000/- and two sureties of the like amount to the satisfaction of the trial Court. Realisation of the fine shall remain stayed. Execution of the sentence and the order appealed against would remain suspended in terms of - 7 - section 389(1) of Cr.P.C." 5. Perusal of the aforesaid order clearly shows that what was granted was prayer in terms of prayer clause (a) of the criminal application and prayer clause (b) was not granted. Reasons have been assigned for suspension of sentence and not for suspension on conviction. The submission of the learned Counsel for the petitioner that the conviction of the petitioner was also stayed, therefore, could not be accepted. 6. Reliance has been placed by the learned Counsel for the petitioner in the case of Rama Narang (supra) Rama Narang (supra) Rama Narang (supra). Perusal of the said judgment discloses that the ratio of this judgment is of no assistance to the petition. On the contrary, it has been observed by the Apex Court that the order of conviction being not executable, cannot be stayed. The Apex Court has observed that the order referred to Section 389(1) must be an order capable of execution and further it was observed that an order of conviction by itself is not capable of execution under the Code. Para 15 and 16 read as under - 8 - :- "15. Under the provisions of the Code to which we have already referred there are two stages in a criminal trial before a Sessions Court, the stage up to the recording of a conviction and the stage post-conviction up to the imposition of sentence. A judgment becomes complete after both these stages are covered. Under Section 374(2) of the Code any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge may appeal to the High Court. Section 384 provides for summary dismissal of appeal if the Appellate Court does not find sufficient ground to entertain the appeal. If, however, the appeal is not summarily dismissed, the Court must cause notice to issue as to the time and place at which such appeal will be heard. 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. 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 conviction. Such an interpretation may defeat the very object and - 9 - purpose for which it came to be enacted. It is, therefore, fallacious to contend that on the admission of the appeal by the Delhi High Court the order of conviction had ceased to exist. If that be so why seek a stay or suspension of the order? (emphasis supplied) 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 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". 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. xxxxxxxxxxxxx " 7. The above observations have been approved by the Apex Court in the case of K.C. Sareen V/s. C.B.I., K.C. Sareen V/s. C.B.I., K.C. Sareen V/s. C.B.I., Chandigarh, reported in 2001 CRI.L.J. 4234. Chandigarh, reported in 2001 CRI.L.J. 4234. Chandigarh, reported in 2001 CRI.L.J. 4234. In para 9 of the said order, the Apex Court has observed as under :- "A three Judge Bench of this Court have - 10 - 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 : "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 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 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 : "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 - 11 - 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 pay 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." 8. The submission of the learned Counsel for the petitioner that in Rama Narang case (supra) Rama Narang case (supra) Rama Narang case (supra), the Apex Court has held that the words "order appealed against" found in Section 389 of Cr.P.C. essentially includes ’conviction’ cannot be accepted. The CAT has considered in detail various judgments of the Supreme Court and has held that the Disciplinary Authority was entitled to go through the provisions of CCS (CCA) Rules and impose any punishment prescribed in the Rules. In our view, there is no infirmity and no error of law apparent on the face of record committed by the CAT. We do not see any reason to interfere with the impugned order passed by the CAT. 9. Petition, accordingly, is dismissed. - 12 - (D.K. DESHMUKH, J.) (D.K. DESHMUKH, J.) (D.K. DESHMUKH, J.) (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)