1 3520.11 Cri.Appln. IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 3520 OF 2011 in CRIMINAL APPEAL NO. 338 OF 2011 Rahim Baig Mirza Baig Mogal APPLICANT VERSUS State of Maharashtra RESPONDENT ..... Shri Joydeep Chatterji, Advocate for applicant Shri N.H. Borade, APP for the respondent State ..... CORAM : U.D. SALVI, J. DATED : 15 th &16 th September, 2011. PER COURT : 1. The applicant / accused, who has preferred an appeal against the Judgment and Order of conviction for the offences punishable under Sections 7, 13(1)(d) and Section 13(1)(2) of the Prevention of Corruption Act, 1988 (For short ‘P.C. Act’), passed by the learned Special Judge, Beed in Special Case No. 33/2001, is now seeking suspension of the said order of conviction during pendency of the said Appeal – Criminal Appeal No. 338/2011. 2 3520.11 Cri.Appln. 2. The applicant/accused was Executive Engineer, Public Works Department, Beed, and as such, seized with the work of supervision of Civil works executed in Ashti, Patoda, Beed and Georai Talukas. According to the prosecution, the applicant / accused demanded and accepted an amount of Rs. 1,00,000/- (Rs. One lakh) as a bribe from a Government Contractor- the complainant, Mohan Kale as a reward for sanctioning the bills in respect of the works undertaken and executed by the complainant. The acceptance of the bribe amount, according to the prosecution, was at the residence of the applicant / accused in the morning on 24-03-2000. The prosecution examined the complainant-PW-1, Mohan Kale, PW-2 Shrikant Anarse, witness to the demand PW-3 Ratnakar Kulkarni, Sanctioning Officer PW-4 Rasheed Gaffor, and Investigation Officer-PW-5, Mahendra to prove its case. 3. The accused controverted the case and tendered his written statement in defence in response to his examination under Section 313 of Criminal Procedure Code. The accused disclosed in his written statement (Exhibit 115), that while he was busy in his official work at his residence in company of Deputy Engineer Rode, and contractor Shri Pashabhai, the complainant-Kale came to the room at around 9.00 a.m. on 24-03-2000, and started discussing his work, and at that time he received two or three telephone calls 3 3520.11 Cri.Appln. and he also left the said room for getting tea for other persons in the room, and after consuming tea, contractor Shri Pashabai and Deputy Engineer were about to leave room, when 3 or 4 persons including Shri Bhokre, Deputy Superintendent of Anti-Corruption Bureau, Beed came in the room and asked about the money given by the complainant- Mr. Kale. He further disclosed that he then responded to the query made by Shri Bhokre, Deputy Superintendent of Police (A.C.B.) that he neither demanded nor any money was given to him and there was no reason for him to accept the money from the complainant and thereupon the complainant told Deputy Superintendent of Police that the money was lying in the table drawer near the door. Thus, he disclosed that the alleged bribe amount was planted in the table drawer and false case was made out against him. 4. After considering the evidence on record and the submissions made by the rival parties, the learned trial Court dismissed the theory of complainant regarding planting of the tainted amount in the table drawer. What weighed in the mind of learned trial Court, is the situation inside the room, particularly, location of the table in which the tainted notes were found and the oral testimonies of the complainant and PW-2 Shrikant Anarse, who witnessed the entire episode at the material time. 4 3520.11 Cri.Appln. 5. The learned Advocate Shri Chatterji for the applicant / accused pointed out from the evidence that the incriminating conversation allegedly tape recorded was not available in the evidence before the trial Court, and the evidence showed that there were occasions for the applicant / accused to receive and engage himself in two or three telephone calls, and during such occasions his attention was diverted thereby giving opportunity to the complainant to plant the tainted amount in the table drawer near the door of the room. This circumstance in the evidence, he submitted, are indicators of high degree of probability of appeal finally succeeding, and on these backdrop, it is just and necessary to consider the damage that would come to the lot of the applicant / accused as a result of the conviction remaining in force. 6. The learned Advocate Shri Chatterji for the applicant / accused, submitted that since the appeal is unlikely to be heard finally in near future, the applicant / accused would suffer irreparable loss, inasmuch as he would lose not only his job but all consequential benefits like pension. According to him, the applicant / accused is due for retirement in 2016, and he has no other source of income to support himself and his dependants i.e. 5 3520.11 Cri.Appln. wife, mother and two sons. In support of his submission, the learned counsel relied on the Judgments, which are as under : “i] Pralhad Sitaram Yeole V. State of Maharashtra, 2002 (Cri.Supp.) Bom.C.R. 930. ii] S. Manik Reddy V. The State of Maharashtra, in Criminal Application No. 1941/2008, dated 01-07-2008. iii] Ashok Bhagchand Wardhane V. The State of Maharashtra, in Criminal Application No. 2321/2008, dated 01-08-2008. iv] Mukund Narharrao Chavare R/o Shahu Nagar, Nanded V. The State of Maharashtra in Criminal Application No. 2824/2008, dated 29-08-2008.” He further submitted that the present case is the most eligible one for staying of the conviction, for the reason that he fulfills all the criteria set out for staying the conviction. In Pralhad Sitaram Yeole’s case (referred supra), he pointed out, the Hon’ble Justice Mr. R.M.S. Khandeparkar arrived at the criteria for staying the conviction and culled out the relevant factors therefor from the judicial precedents-prominent amongst them being Rama Narang V. Ramesh Narang ’s case decided by Hon’ble Apex Court. 6 3520.11 Cri.Appln. 7. The learned Advocate Shri Chatterji for the applicant / accused, with reference to the relevant provisions contained in the Maharashtra Civil Services Rules, 1981 and Rule 72 & 70, submitted that the reinstatement of the applicant / accused with full back-wages in the case of his exoneration from the guilt in the present appeal would remain a matter of discretion of the concerned authorities, and as such the damage that the applicant / accused would sustain as a result of the conviction remaining in force is not capable of being undone. 8. Considering these facts, the learned Advocate for the applicant / accused, urged for suspension of the order of conviction passed by the learned trial Court. 9. The learned APP submitted that the suspension of conviction was an exceptional thing and the conviction can be stayed only in exceptional circumstances. According to the learned APP, there was nothing exceptional in the present case to warrant the suspension of conviction. 10. In Pralhad Sitaram Yeole’s case (referred supra), the Hon’ble Justice Mr. R.M.S. Khandeparkar, while answering the 7 3520.11 Cri.Appln. question as to whether conviction ought to be stayed pending appeal, made the following observations : “ most relevant factor to be considered is whether damage that would be caused to appellant in absence of suspension of order of conviction, could be undone, if ultimately the appeal is allowed. Undoubtedly if damage is of trifling nature it cannot be contended that same cannot be undone. It is also necessary to consider the degree of probability of appeal finally succeeding, nature and gravity of offence, age and conduct of accused.” Taking cue from these observations, it would be worthwhile to consider the issue of damage that the applicant / accused would sustain, in absence of suspension of conviction and find out whether such damage is capable of being undone, if ultimately appeal is allowed. 11. The learned Advocate for the applicant / accused submitted that the applicant / accused was initially suspended and thereafter, was reinstated by withdrawal of the suspension during the pendency of the trial, and he continues to be in service as on date, but with this conviction in the present case, he is likely to lose his job. This only shows that the concerned authorities are not un- kindly and have not resorted to any harsh measures till this date. Relevant Rule 70 of the Maharashtra Civil Services Rules, 1981 reads as under : 8 3520.11 Cri.Appln. “ Regularization of pay and allowances and the period of absence from duty where dismissal, removal or compulsory retirement is set aside as a result of appeal or review and such Government servant is re-instated. (1) When a Government servant who has been dismissed, removed or compulsorily retired is re- instated as a result of appeal or review or would have been so re-instated but for his retirement on superannuation while under suspension or not, the authority competent to order re-instatement shall consider and made a specific order- (A) regarding the pay and allowances to be paid to the Government Servant for the period of his absence, from duty including the period of suspension, preceding his dismissal, removal of compulsory retirement, as the case may be; and (b) Whether or not the said period shall be treated as a period spent on duty. (2) Where the authority competent to order re- instatement is of opinion that the Government servant who had been dismissed, removed or compulsorily retired has been fully exonerated, the Government servant shall, subject to the provisions of sub-rule (6), be paid the full pay and allowances to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be: Provided that where such authority is of opinion that the termination of the proceedings instituted against the Government servant had been delayed due to reasons directly attributable to the Government servant, it many, after giving him an opportunity to make his representation within sixty days from the date on which the communication in this regard is served on him and after considering the representation, if any, submitted by him, direct for reasons to be recorded in writing, that the Government servant shall, subject to the provisions of 9 3520.11 Cri.Appln. sub-rule (7), be paid for the period of such delay, only such amount (not being the whole) of such pay and allowances as it may determine. (3) In a case falling under sub-rule(2), the period of absence from duty including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, shall be treated as a period spent on duty for all purposes. (4) In a cases other than those covered by sub-rule (2), (including cases where the order of dismissal, removal or compulsory retirement from service is set aside by the appellate or reviewing authority solely on the ground of non-compliance with the requirements of clause (2) of article 311 of the Constitution and no further inquiry is proposed to be held ) the Government servant shall, subject to the provisions of sub-rules (6) and (7) ,be paid such proportion of the full pay and allowances to which he would have been entitled., had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement,. As the case may be, as the competent authority may determine after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period which in no case shall exceed sixty days from the date on which the notice has been served, as may be specified in the notice: Provided that payment under this sub-rule to a Government servant (other than Government who is governed by the provisions of the Payment of Wages Act, 1936 (4 of 1936) shall be restricted to a period of three years immediately preceding the date on which orders for reinstatement of such Government servant are passed by the appellate authority or reviewing authority, or immediately preceding the date of retirement on superannuation of such Government servant, as the case may be. (5) In a case falling under sub-rule (4), the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, shall not be treated as a 10 3520.11 Cri.Appln. period spent on duty, unless the competent authority specifically directs that it shall be so treated for any specified purpose; Provided that if the Government servant so desires such authority may direct that the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, shall be converted into leave of any kind due and admissible to the Government servant. Note:- The order of competent authority under the preceding proviso shall be absolute and no higher sanction shall be necessary for the grant of - (a) extraordinary leave in excess of three months in the case of a temporary Government servant; and (b) leave of any kind in excess of five years in the case of a permanent Government servant. (6) The payment of allowance under sub-rule (2) or sub-rule (4) shall be subject to all other conditions under which such allowances are admissible. (7) The amount determined under the proviso to sub- rule (2) or under sub-rule (4) shall not be less than the subsistence allowance and other allowances admissible under rule 68. (8) Any payment made under this rule to a Government servant on his reinstatement shall be subject to adjustment of the amount, if any, earned by him through an employment during the period between the date of removal, dismissal or compulsory retirement. Where the pay and allowances admissible under this rule are equal to or less than the amounts earned during the employment elsewhere, nothing shall be paid to the Government servant.” Learned Advocate for the applicant / accused with reference to Krishna Raghunath Bibhavnkar’s case, in Civil Appeal No. 11 3520.11 Cri.Appln. 1868/1997 decided on 28-02-1997 submitted that largely it is matter of discretion that vests in the authority to undo or not to undo the damage done as a result of dismissal. It is not worthwhile to engage ourselves in the prophesying whether it will be undone or not. Law provides a mechanism to undo the damage that would be caused in absence of suspension of conviction and thus, it can be stated that, hopefully the damage that would be caused to the appellant in absence of suspension of conviction could be undone, if ultimately the appeal is allowed. Moreover, the appellant/ accused is confident of the merits of the appeal inasmuch as he sees the facts emerging in the evidence particularly the fact of the tainted money being found in a table drawer as a fact in his favour for getting an acquittal. If that be so, he has little to worry about the promise of the future. 12. Threadbare analysis of the evidence to arrive at final verdict at this stage, is not warranted. Suffice it to say that finding of the tainted money in the table drawer at the corner of the room wherein the appellant/ accused has parleyed with the complainant and the hands of the appellant/ accused remaining free of the taint of anthracin powder holds a promise for the theory of plantation. However, there is also evidence of the fact that P.W. 2 Anrarse has witnessed the episode and the table wherein the tainted notes were 12 3520.11 Cri.Appln. found, was at the corner of the room at a distance from the complainant in the residence of the appellant/ accused. The prosecution, therefore, in equal measure, has something to say about the theory of plantation. 13. As regards the nature and gravity of offence, undoubtedly, it is not only the social wrong, as every offence is understood as, “but is a national wrong”, which has grave and far- reaching consequences as observed by the Hon’ble Apex Court in K.C. Sarin’s case as under : “When a public servant is found guilty of corruption after a judicial adjudicatory process conducted by a court of law, judiciousness demands that he should be treated as corrupt until he is exonerated by a superior court. The mere fact that an appellate or revisional forum has decided to entertain his challenge and to go into the issues and findings made against such public servants once again should not even temporarily absolve him from such findings. If such a public servant becomes entitled to hold public office and to continue to do official acts until he is judicially absolved from such findings by reason of suspension of the order of conviction, it is public interest which suffers and sometimes, even irreparably. When a public servant who is convicted of corruption is allowed to continue to hold public office, it would impair the morale of the other persons manning such office, and consequently that would erode the already shrunk confidence of the people in such public institutions besides demoralising the other honest public servants who would either be the colleagues or 13 3520.11 Cri.Appln. subordinates of the convicted person. If honest public servants are compelled to take orders from proclaimed corrupt officers on account of the suspension of the conviction, the fallout would be one of shaking the system itself. Hence it is necessary that the court should not aid the public servfant who stands convicted for corruption charges to hold public office until he is exonerated after conducting a judicial adjudication at the appellate or revisional level.” 14. Humbly, it can be said that while delivering the judgments in the cases cited by the learned Advocate Mr. Chatterji for the applicant little thought was given to this aspect of the cases of such kind. 15. In the considered opinion of this Court, therefore, it would not be prudent to allow the application. The Application is rejected. ( U.D. SALVI, J. ) SDM* September-11