1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION (APPA) NO. 272 OF 2011 IN CRIMINAL APPEAL NO. 192 OF 2011 ( Chandrabhan Mahadeorao Sadavarti Vs. State of Maharashtra thr Dy. Superintendent of Police ACB Nagpur) ........................................................................................................................................................................ Office Notes, Office Memoranda of Coram, appearances, Court orders or directions Court's or Judge's Order and Registrar's orders ........................................................................................................................................................................ Shri S. S. Ghate Adv for applicant. Shri S. S. Doifode APP for non applicant/State. CORAM: M. N. GILANI J. DATED: 30th JUNE, 2011. . This is an application, presumably, under Section 389 of the Code of Criminal Procedure for staying the effect, operation and execution of the judgment and order dated 31.03.2011, passed by Special Judge Warora in Special Case No. 9 of 2008 pending hearing of the criminal appeal. Applicant-original accused in Special Case No. 9 of 2008 decided on 31.03.2011 by Special Judge Warora, learned Special Judge convicted the applicant for the offence punishable under Section 7 and Section 13(1)(d) punishable 2 under Section 13(2) of the Prevention of Corruption Act and for each offence sentenced to suffer R. I. for a period of one year and to pay fine of Rs. 8000/- in default to suffer S. I. for three months. Being aggrieved by the judgment and order of conviction and sentence Criminal Appeal No. 192 of 2011 has been filed tin this Court which is admitted. Execution of substantive sentence imposed upon the applicant/appellant has been suspended by this Court vide order dated 27.03.2011. Now it is prayed that order of conviction be also stayed. In support of this application it is contended that the applicant/appellant is a Government Servant and has been discharging his official duties from last 20 years. Presently he is working in the office of Collectorate Bhandara. In view of the conviction in Special Case No. 9 of 2008 he has become vulnerable to the action under the Maharashtra Civil Services (Discipline & Appeal) Rules. There is likelihood of he losing the job. If he loses the job he and his family will be ruined. The next ground canvased in support of the application is, he has exceptionally strong primafacie case showing his 3 innocence. Learned counsel for the applicant took me through the evidence of P. W. 1 Prabhakar. It is true that this witness has given number of admissions supporting the defence. He went to the extent of admitting that bribe amount was kept on the cot and that time accused questioned as to whose amount it was and asked the complainant to keep that amount with him, i.e. with the complainant. This is not the stage to go through the evidence and assess its probative value. Such exercise can only be under taken at the stage of final hearing of this appeal. Section 389 of the Code of Criminal Procedure speaks of suspension of sentence pending appeal. That means the execution of the sentence imposed on accused can be suspended. In Navjot Singh Sidhu Vs. State of Punjab And Another (2007)2 Supreme Court Cases 574, the Apex Court while dealing with power of the appellate Court under Section 389(1) Criminal Procedure Code observed that: "Section 389(1) CrPC confers power not only to suspend the execution of sentence and to grant bail but also to suspend the operation of the order 4 appealed against which means the order of conviction. Thus 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." Learned counsel for the applicant further relied upon the decision of learned Single Judge of this Court in Criminal Appeal No. 531 of 2010 dated 20.10.2010. With respect, I say that I have already taken contrary view in such similar case by stating that the case of such nature i.e. when public servant is convicted for the offence punishable under Prevention of Corruption Act does not fall within the category of rare case. There are no special facts which would entitle 5 the appellant to claim stay to the order of conviction. The consequence of, action in an appeal and conduct rules by which the public servant is governed, is inevitable consequence of his being trapped by the Anti Corruption Department. Conviction in such offence amounts to misconduct involving moral turpitude. Therefore, under the Service Rules the consequences which are supposed to follow cannot be halted. It may be observed that, if the action is taken purely based upon the conviction of a public servant by Criminal Court, on reversal of such conviction, he is relegated to the original position. To put it differently, he is reinstated in service. This is for the reason that the action taken against him is not in pursuance to the disciplinary proceedings held against him but it is purely based upon the conviction by the Criminal Court. Once conviction is set aside, the very foundation goes away and as a matter of right an employee is reinstated or placed in a same position, as he was at the time when action was taken. I am, therefore, of the view that the case of such nature cannot be termed as a rare case or the case having special facts. 6 For the reasons stated above the application is rejected. Learned counsel for the applicant prayed for early hearing of the matter. Appeal be listed for final hearing on or about July 2012. JUDGE svk