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Gujarat High Court
Judgename :S.R.Brahmbhatt
BHALABHAI KARSANBHAI DHUMADA - Appellant
Versus
STATE OF GUJARAT - Respondent
Criminal Misc. Application 7731 Of 2006
Decided On : 07/21/2006
Whether in the facts of the case petition for suspension of conviction and bail during pendency of appeal can be allowed.
Head Note :
Criminal Procedure Code, 1973 (Central Act 2 of 1974) - Section 389 - Suspension of conviction - And bail during pendency of appeal - Scope of - Court granted both the prayers for reasons indicated as follows.
Held :
This Court suspended the conviction in respect of the present applicant for the some reasons.
[Para 8]
During the Pendency of the trial the applicant has retired on 31.08.2002 and, therefore, no question of his again holding the same post or office on suspension of his conviction arises.
[Para 9]
As against this, if the conviction were not suspended then the meager amount of provisional pension that he receives every month would be stopped affecting him and his dependents adversely in this days of galloping inflation. These factors become more relevant when prima-facie the following appear. [Para 10]
The complainant has not named the present applicant accused No. 3 either in his complaint or in his deposition. The complainant has not attributed any overt act or omission to the accused No. 3. [Para 11]
Neither the accused No. 1 nor accused No. 2 is alleged to have anywhere referred the accused No. 3 either by his name or by his designation during the entire incidence. [Para 12]
The communication dated 12.04.1993 at Exhibit-57 said to be the copy of the original letter dated 12.04.1993 at Exhibit-68 cannot be characterized even as true gist of the original.
[Para 13]
It prima facie appears from the testimony of the defence witnesses that the file containing the original letter dated 12.04.1993 copy whereof is at Exhibit-68 cannot be said have remained inaccessible to other concerned staff members of the Vigilance Commission. [Para 14]
The brief discussion on merits is of course only prima facie and tentative for the purpose of considering the prayer for suspending the conviction during pendency of the main criminal appeal. It shall have no bearing when the matter may be heard finally. [Para 15]
The applicant was enlarged on bail during the trial and after the impugned order of conviction and sentence the trial Court has suspended its order of substantive sentence for the period of thirty days from the date of the order i.e., 04.07.2006 and enlarged the accused applicant on bail so as to enable him to approach this Court with appeal. The applicants prayer for bail during the pendency of the appeal also deserves to be granted. [Para 16]
Law Laid Down :
In corruption cases the convict may not be permitted to hold the public office by keeping the conviction in abeyance during pendency of appeal.
Case Law Analysis :
K.C. Sareen vs. C.B.I. Chandhigarh, AIR 2001 SC 3320;; Kirankumar vs. State of M.P., 2001 (9) SCC 211 [Para 16].-Relied on
Conclusion :
Considering the facts of the case Court allowed application of petitioner for suspension of conviction and grant of bail during pendency of appeal.
Decided in Favour of :
Appellant
Application Allowed
( 1 ) RULE Shri Pandya learned APP waives service of rule for respondent-State
( 2 ) THE learned Special Judge (ACB), gandhinagar, in his order dated 4 07 2006 has convicted the applicant, original accused no 3 in Special (ACB) Case No 14 of 2001 for commission of offences under Sections 7, 13 (1) (d) and 13 (2) of the Prevention of corruption Act, 1988 The a applicant is sentenced to undergo Rigorous imprisonment for a period of one year and to pay fine of Rs 10,000=00, in default thereof, to undergo further Simple imprisonment for a period of two months for commission of the offence under Section 7 of the Corruption Act, 1988 The applicant is also sentenced to undergo Rigorous imprisonment for a of three years and to pay line of Rs 10,000=00, in default thereof, to undergo further simple imprisonment for two months for commission of offences under section 13 (1) (d) read with Section 13 (2) of the prevention of Corruption Act, 1988 The sentences are ordered to run concurrently
( 3 ) BEING aggrieved and dissatisfied with the impugned conviction order dated 4 07 2006 passed in Special (ACB) Case No 14/2001, the applicant has preferred Criminal appeal No 1233 of 2006 The Court has admitted the appeal The applicant has made present application in the Criminal Appeal seeking suspension of conviction and sentences and prayed for bail during the pendency of the main appeal. The applicant has already paid the amount of fine.
( 4 ) SHRI A. D. Shah, learned counsel for the applicant has urged that in view of the peculiar facts and circumstances of this case, the entire order of conviction and sentence deserves to be suspended so as to enable the applicant to continue to receive and retain the provisional pension and other, benefits, which were admissible to him during the trial. Shri Shah, learned counsel has taken this court through the relevant documents and testimony of some of the witnesses while making submission for admission of appeal.
( 5 ) SHRI Shah has submitted that complainant lodged complaint with ACB on 15/5/1993 that one of his acquaintances informed him that he has received information from the accused No. 1, a clerk in Narmada and Water Resources department that ACB has forwarded the papers pertaining to the ACB trap case involving the complainant to the offence of the Vigilance Commission, Gandhinagar for making recommendation to his Head of the department as to whether the complainant be proceeded departmentally or he prosecuted under the criminal law. The complainant immediately got interested and went to meet the accused No. 1. The accused No. 1 informed the complainant that he had a friend i. e. Accused No. 2, a section Officer working in General administration Department, who is known to some officer in Vigilance Commission who can help in making suitable recommendation for dropping proceedings under the criminal law on payment of money. The complainant s first meeting was only with accused No. 1 on 15th or 16th of March, 1993. On 20/3/1993 the complainant paid rs. 8,000. 00 to the accused No. 1 and he in turn took the complainant to the accused no. 2, where the accused No. 1 informed the accused No. 2 that more than half of the amount is received. The accused No. 2 also promised the complainant that he would do his work provided the complainant pays the remaining amount. On 29/3/1993 the complainant met the accused No. 1 and made payment of Rs. 2000. 00 and requested for favourable recommendation from the office of the Vigilance Commission, thereafter, the complainant met the accused No. 1 on 13/4/1993, who informed him that the desired order is passed in previous day wherein only Departmental proceedings have been recommended and its copy is lying at his residence. On the same day, the complainant received from the accused No. 1 the purported copy of the order dated 12/4/1993, which is produced at exhibit on the record. The accused No. 1 also informed that it was typed from the original or
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