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2014 Supreme(Kar) 1072
IN THE HIGH COURT OF KARNATAKA
A.V. Chandrashekara, J.
Selvi J. Jayalalithaa - Appellant
Vs.
State - Respondent
I.A. No. 1 of 2014 in Criminal Appeal Nos. 835, 836, 837 and 838 of 2014
Decided On: 07.10.2014
Advocate Appeared:
For the Appellant: Ram Jethmalani, Amit Desai, Hasmath Pasha
For the Respondent: Special Public Prosecutor
Headnote:CODE OF CRIMINAL PROCEDURE, 1973 - Section 389: [A.V. Chandrashekara, J] Grant of bail pending disposal of appeal - Conviction under Prevention of Corruption Act - The parameters that are to be considered while enlarging a person on bail during the course of investigation or during the course of trial either under Section 437 or 439 are different from the parameters to be applied while enlarging the accused- convict on bail consequent upon the suspension of sentence.
The word "may" used in Section 389 Cr.P.C., does not say that it is an absolute right of the accused to seek suspension of sentence. However Court is expected to apply its mind and consider all relevant factors without going to the merits of the case in an application filed under Section 389(1) of Cr.P.C.,
If the sentence of limited duration is not suspended, the matter should be expedited. If the Appellate Court is inclined to suspend the sentence of imprisonment, conditions may be imposed while granting bail. Just because a criminal appeal is admitted, the suspension of sentence is not an automatic event. Principles that govern grant of bail at pre-trial stage are considerably different from those on which an appeal court would decide such application at Post-conviction stage, the obvious reason being, that there is already an assessment of evidence and the conviction entered by the trial court is certainly a disqualification against the accused. What is expected of a Court is that the order must be a speaking order so that it will reflect the application of the mind of the Court.
The appellate court should consider whether reasons existed to suspend execution of sentence and thereafter grant bail. Mere fact that during the period when accused persons were on bail during trial, there was no misuse of liberty by them do not per se warrant suspension of execution of sentence and grant of bail. Suspension of sentence and grant of bail should not be passed as a matter of routine and that the Appellate Court is duty bound to objectively assess the matter and to record reasons for the conclusion it arrives, more particularly, when the sentence to be suspended and bail to be granted.
A requirement recording reasons in writing clearly indicates that there should be careful consideration of the relevant aspects. It is made clear that the order of directing suspension of sentence and grant of bail should not be passed as a matter of routine. Mere fact that the accused was on bail during the trial and did not misuse the liberty granted do not per se warrant suspension of execution of sentence and grant of bail. What is really necessary is to consider whether reasons exist to suspend execution of sentence and grant of bail. Gravity of the offence, the sentence imposed and several other factors need to be considered by the Court. The fact that accused was on bail during trial is certainly not a relevant factor.
Instant case is not a case of no evidence. There are arguable points both in regard to law as also on facts which are to be considered at the time of hearing. Applications were dismissed as no grounds exist to suspend the sentence.
PREVENTION OF CORRUPTION ACT, 1988 - Corruption: [A.V. Chandrashekara, J] Corruption violates human rights and it undermines human rights and indirectly violates them. Further, systematic corruption is violation of human rights as it leads to economic crisis. It is a serious malady undermining the very health of Polity.
A classification made between corrupt public servants on the basis of status is impermissible in law as it is violative of Article 14 of the Constitution of India. The Apexd Court has, over a period been adding new dimension to the approach to be adopted towards the public servants involved in cases of corruption.
A person convicted of an offence punishable under Prevention of Corruption Act is deemed to be corrupt, till he or she is exonerated by the Appellate Court or the Revisional Court.
A.V. Chandrashekara, J.
1. These applications are filed under Section 389(1) of Cr.P.C. Accused Nos. 1 to 4 of a criminal case bearing Special Case C.C. No. 208/2004 which was pending on the file of the Court of XXXVI Addl. City Civil and Sessions Judge, Bangalore, have filed separate applications under Section 389(1) of Cr.P.C. requesting this Court to suspend the sentence imposed on them and to enlarge them on bail. Reasons have been assigned in the connected applications in regard to their request.
2. Special Public Prosecutor has filed detailed objections to the applications seeking suspension of sentence. The said objection was filed on 01.10.2014 requesting the Court to dismiss the application for suspending the sentence of conviction and also sentence. The said objections filed in Crl.A. No. 835/14 read as under:
"The respondent submits the following statement of objections to the I.A. filed by the appellant/accused seeking suspension/stay of conviction and sentence.
1. The above criminal appeal is filed by the appellant challenging the judgment dated 27.9.2014 passed by the Learned Special and 36th Additional City Civil and Sessions Judge, Bangalore in Special C.C.208/2004, convicting the appellant for the offences punishable under Section 13(1)(e) read with Section 13(2) of Prevention Of Corruption Act and Section 109 read with Section 120B of IPC and convicted and sentenced the accused to undergo simple imprisonment of four years and fine of Rs.100 crores. In default to pay the fine amount, the appellant shall undergo further imprisonment of one year. The trial Court also convicted the appellant/accused for the offence is punishable under Section 120B of IPC read with Section 13(2) and sentenced her to undergo simple imprisonment for six month and to pay a fine of Rs.1,00,000/- in default to pay the fine she shall undergo further imprisonment of one month.
2. The case of the prosecution is that the appellant was the Chief Minister of Tamilnadu during the period of 1991-1995 and during her tenure as C.M. she along with the other accused namely Sasikala (Accused No. 2), Sudhakaran (Accused No. 3) and Elavarasi (Accused No. 4) had acquired properties in her name and in the names of above mentioned accused and in the names of the business enterprises which were floated by them and for which she could not account satisfactorily. The DV & AC had filed charge sheet on 4.6.1997 against the accused for the offences punishable under Section 13(1)(e) read with Section 13(2) of Prevention of Corruption Act and Section 109 read with Section 120B of IPC.
3. The prosecution has examined 259 witnesses on its behalf and marked 2341 exhibits. The defense has examined 99 witnesses in support of their case and exhibited 385 documents before the learned lower Court.
4. The trial Court after considering the evidence and documents on record has come to the conclusion that the accused could not account satisfactorily regarding their source of income. Hence the Court has come to the conclusion that the accused persons had dis-proportionate of assets to the tune of Rs.53,64,00,000/- and convicted the appellate/accused.
5. The unimpeachable evidence of prosecution witnesses amply establishes the case of prosecution. The charges of accusation being proved and conviction being upheld is bright as the State has got very good case on merits and therefore, the above application does not merit any consideration.
6. In view of the finding of the trial Court under the judgment, the plea of presumption of innocence is no longer available to the appellant therefore the appellant is not entitled for the relief sought in the I.A.
7. In view of the seriousness of the offences and keeping in view the status of the accused the prosecution reasonably apprehends that if the conviction and sentence is stayed, she may misuse the liberty and in such event, it will be difficult for prosecution to secure the presence of the accused for receiving the sentence, if the a
