Raju Shantaram Kakphale v. State Of Maharashtra
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1139 OF 2017 IN CRIMINAL APPEAL NO.535 OF 2016 RAJU SHANTARAM KAKPHALE )...APPLICANT V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT Mr.Ganesh K. Sovani, Advocate for the Applicant. Ms.P.N.Dabholkar, APP for the Respondent - State.
CORAM
:
A. M. BADAR, J.
DATE :
14th AUGUST 2017 P.C. :
This is an application by convicted accused for suspending conviction imposed on him by the learned Special Judge, Thane, under the Prevention of Corruption Act, 1988, (P.C.Act) for the offences punishable under Sections 7, 13(1)(d) read with 13(2) of the P.C.Act, 1988.
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The applicant / accused was serving as a peon with the District court, Thane. A complaint against him came to be lodged by Tapan Dutta on 2nd February 2008 with an allegation that for supplying certified copy of the judgment and order of acquittal of complainant Tapan Dutta, the present applicant / accused had demanded illegal gratification of Rs.2,000/- and had received part payment thereof, of Rs.1,000/-. It is further alleged in the said complaint that the balance amount of Rs.1,000/- was to be paid on 2nd February 2008 and if the said was not paid, the applicant / accused would not supply the certified copy of the judgment and order in Criminal Case No.3620 of 2004. Accordingly, a trap was laid, after verification of demand. During demand verification, the amount was reduced to Rs.800/-.
Ultimately, according to the prosecution case, the applicant / accused came to be arrested with the tainted money in the form of currency notes worth Rs.800/-. Heard the learned advocate appearing for the applicant / accused.
complainant was pronounced earlier but was typed on 3rd February 2008. The learned advocate further argued that the applicant / accused was not having knowledge as to whether certified copy was applied for or not, and therefore, he had no reason to demand illegal gratification. It is further alleged that the applicant / accused is falsely implicated in the crime in question as mobile of the complainant rang twice during trial of the criminal case against the complainant and when the applicant / accused wanted to take action, he was threatened with dire consequences. It is further argued that money was thrusted on the applicant / accused and the offence is of trivial nature. In submission of the learned advocate for the applicant / accused, there are good chances of success in the appeal.
The applicant / accused has family to maintain and there are no chances of hearing this appeal in near future. This will cause irreparable loss to him if his conviction is not stayed. It is contended by the learned advocate for the applicant / accused that lenient view is required to be taken in such matters.
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He has placed reliance on judgment of the leanred Single Judge of this court in the matter of Pralhad Sitaram Yeole vs. State of Maharashtra reported in 2002 (3) Mh.L.J. 377, order passed in Criminal Application No.5011 of 2011 in Anil Chaudhari and Anr. vs. State of Maharashtra by the learned Single Judge of this court at Aurangabad Bench on 21 November 2011, as well as the order passed by the learned Single Judge of Punjab and Haryana High Court on 7 May 2007 in the matter of Gurmeet Singh vs. State of Punjab reported in LAWS (P&H) 2007 5 165, in order to contend that the damage caused to the applicant / accused in such cases cannot be undone and when there is probability of allowing the appeal, conviction needs to be suspended.
The learned APP opposed the application by contending that in cases of imposition of short sentence, bail can be granted by suspending the sentence.
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I have carefully considered the rival submissions and also perused the impugned judgment and order of conviction of the applicant / accused so also copies of depositions placed on record. The application is not for suspension of sentence but it is for suspension of conviction. The conviction is recorded for the offences punishable under Sections 7, 13(1)(d) read with 13(2) of the P.C.Act, 1988. The applicant / accused was working as a peon in the District court at Thane and according to the prosecution case, he demanded an amount of Rs.2,000/- from the complainant for supply of certified copy of judgment and order of acquittal of the complainant to him. During the course of trial, the prosecution has examined all relevant witnesses including the shadow panch, the complainant as well as the Investigating Officer.
The applicant / accused has examined stenographer working in the District court as defence witness. After conclusion of trial, the learned trial court came to the conclusion that on 2nd February 2008, at 4.30 p.m. to 5.00 p.m.
servant, demanded and accepted an amount of Rs.800/- from the complainant towards illegal gratification and ultimately, the applicant / accused is convicted.
I have gone through the cited judgments and order passed by the learned Single Judges of this court at the principal seat as well as at Aurangabad Bench, so also the order passed by the learned Single Judge of Punjab and Haryana High Court. However, much water has been flown after passing of those orders and now the Hon'ble Apex Court in the matter of Shyam Narain Pandey vs. State of Uttar Pradesh1 has held thus in paragraphs 9 to 13 of the said judgment, after considering the entire case laws on the subject. The relevant portions read thus : "9 It may be noticed that even for the suspension of the sentence, the court has to record the reasons in writing under Section 389(1) Cr.PC. Couple of provisos were added under Section 389(1) Cr.PC pursuant to the recommendations made by the Law Commission of India and observations of this Court in various judgments, as (2014) 8 SCC 909 avk 6/11
per Act 25 of 2005. It was regarding the release on bail of a convict where the sentence is of death or life imprisonment or of a period not less than ten years. If the appellate court is inclined to consider release of a convict of such offences, the public prosecutor has to be given an opportunity for showing cause in writing against such release. This is also an indication as to the seriousness of such offences and circumspection which the court should have while passing the order on stay of conviction. Similar is the case with offences involving moral turpitude. If the convict is involved in crimes which are so outrageous and yet beyond suspension of sentence, if the conviction also is stayed, it would have serious impact on the public perception on the integrity institution.
Such orders definitely will shake the public confidence in judiciary. That is why, it has been cautioned time and again that the court should be very wary in staying the conviction especially in the types of cases referred to above and it shall be done only in very rare and exceptional cases of irreparable injury coupled with irreversible consequences resulting in injustice.
In Ravikant S. Patil v. Sarvabhabhouma S. Bagali [(2007) 1 SCC 673 ], a three-Judge Bench of this Court has held that the power to stay the conviction ... "should be exercised only in exceptional circumstances where failure to stay the conviction would lead to injustice and irreversible consequences". In Navjot Singh Sidhu v. State of Punjab and another [(2007) 2 SCC 574 ], following Ravikant S. Patil case (supra), at paragraph-6, this Court held as follows:
"6.
The legal position is, therefore, clear that 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."
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In State of Maharashtra through CBI, Anti Corruption Branch, Mumbai v. Balakrishna Dattatrya Kumbhar [2012 (12) SCC 384], referring also to the two decisions cited above, it has been held at paragraph-15 that:
"15. ...the appellate court in an exceptional case, may put the conviction in abeyance along with the sentence, but such power must be exercised with great circumspection and caution, for the purpose of which, the applicant must satisfy the court as regards the evil that is likely to befall him, if the said conviction is not suspended. The court has to consider all the facts as are pleaded by the applicant, in a judicious manner and examine whether the facts and circumstances involved in the case are such, that they warrant such a course of action by it. The court additionally, must record in writing, its reasons for granting such relief. Relief of staying the order of conviction cannot be granted only on the ground that an employee may lose his job, if the same is not done."
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In State of Maharashtra v. Gajanan and another [(2003) 12 SCC 432], and Union of India v. Atar Singh and another [(2003 12 SCC 434], cases under the Prevention of Corruption Act, 1988, this court had to deal with specific situation of loss of job and it has been held that it is not one of exceptional cases for staying the conviction. In the light of the principles stated above, the contention that the appellant will be deprived of his source of livelihood if the conviction is not stayed cannot be appreciated. For the appellant, it is a matter of deprivation of livelihood but he is convicted for deprivation of life of another person. Until he is otherwise declared innocent in appeal, the stain stands........."
In the light of these observations of the Hon'ble Apex Court, deprivation of source of livelihood or starvation of the applicant / accused in offences under the P.C.Act, 1988, cannot form a basis for stay to the conviction of the applicant / accused. In the case in hand, tainted currency notes came to be recovered from the applicant /accused, and prima facie, there is evidence to avk 10/11
infer guilty of the applicant / accused, and as such, considering the ratio of the judgment in matter of Shyam Narain Pandey (supra), no case for suspension of conviction is made out. The application is, therefore, rejected.
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