STATE OF PUNJABversusDEEPAK MATTU

A                          STATE OF PUNJAB
                                     V.
                                                                            f
                             DEEPAK MATTU

                          SEPTEMBER 18, 2007
B
                   [S.B. SINHA AND H.S. BEDI, JJ.)


         Code ofCriminal Procedure, 1973: s.389-Conviction ofpublic
                                                                            -~-
    servant under Prevention ofCorruption Act-Special Court allowed
c   suspension of conviction during pendency of appeal -High Court
    dismissed application for vacation ofsuspension-Correctness of-
    Held: Not correct-Power to suspend order of conviction to be
    exercised only in exceptional cases-Court required to look at all
    aspects including ramification ofkeeping such conviction in abeyance.
D        Interlocutory order: Modification ofits own interlocutory order
    by High Court-Scope of-Discussed-Code ofCriminal Procedure,
                                                                            ~
    1973-s.362.
       Prosecution case was that the respondent who was public
E servant  was proceeded against in a case under Prevention of
  Corruption Act. He was sentenced to 1Yz years RI. He filed appeal.
  In the said appeal, an application u/s. 389 Cr.P.C. was filed by him
  for suspension of conviction. Special Court allowed the application
  and suspended the conviction during pendency of appeal on the              y-
  ground that it would take long time to decide the appeal and there
F were good points to argue. High Court dismissed the application for
  vacation of stay of conviction.
      In appeal to this Court, appellant contended that the High Court
  being aware of the decisions of this Court holding that ordinarily the
G suspension of conviction should not be granted, must be held to have
  committed a manifest error in passing the impugned judgment.              _,Jo


        The respondent contended that he being a government servant
    and he having been convicted only for a period of 1Yz years, the High
    Court cannot be said to have committed any error in suspending the
H                                    90
                       STATE v. DEEPAK MATTU                               91


)
    judgment of conviction.                                                      A
         Allowing the appeal, the Court
         HELD: 1. Po!lsible delay in disposal of the appeal and arguable
    points therein by itself may not be sufficient to grant suspension of
    a sentence. The High Court while passing the order merely noticed B
    some points which could be raised in the appeal. The ground~ so
    taken do not suggest that the respondent was proceeded against by
    the State, malafide or any bad faith. [Para 7) [96-B, CJ
         KC Sareen v. CB.I, Chandigarh, [2001) 6 SCC 584, relied ou.
         2.1. Though the power to suspend an order of conviction, apart C
    from the order of sentence, is not alien to s. 389(1) of the Cr.P .C.,
    its exercise should be limited to very exceptional ca~es. rilerely
    because the convicted person files an appeal in challenge of the
    conviction the court should not suspend the operation of the order
    of conviction. The court has a duty to look at all aspects including D
    the ramifications of keeping such conviction in abeyance.
                                                       [Para 7) [96-D-E]
         2.2. 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          E
    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 aim should not even
    temporarily absolve him from such findings. If such a public servant
    becomes entitled to hold public office and continues to do official acts     F
    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, evefl. 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,         G
    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
    subordinates of the convicted person. If honest public servants are
    compelled to take orders from proclaimed corrupt officers on                 H
                                                                          '
                                                                          }.._ ~

    92           SUPREME COURT REPORTS                (2007] 10 S.C.R.


A 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 servant 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.
B                                                    [Para 7) [97-B, G]
        State ofMaharashtra v. Gajanan and Anr., [2003) 12 SCC 432
    and Union ofIndia v. Atar Singh, [2003) 12 SCC 434, relied on.
                                                                              .L
       3. Thus impugned order is passed in a wrong, illegal premise.
c There   is no impediment which comes on its way not to correct an
  apparent error. S. 362 of the Code of Criminal Procedure is only
  operative in a situation where a final order has been passed. The
  Code of Criminal Procedure confers inherent power in the High
  Court unlike the lower court's. There is no reason as to why High
  Court cannot modify its own interlocutory order when the matter is
D
  yet to be finally disposed of. [Paras 9 andlO) [98-D-F]
        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
                                                                              ....
    1251of2007.
         From the Judgment and Order dated 17.01.2006 of the High Court
E
    of Punjab & Haryana at Chandigarh in Crl. Misc. No. 51634 of2005 in
    Crl. A. No. 1022-SB of 2004.
         Ruchira Gupta and Kuldip Singh for the Appellant.
                                                                               'r
      Neeraj Kumar Jain, Bharat Singh, Sanjay Singh, Sandeep
F Chaturvedi and Ugra Shankar Prasad for the Respondent.

         The Judgment of the Court was delivered by
         S.B. SINHA, J. 1. Leave granted.

G      2. Respondent is a public servant. He was proceeded against in a
  case under Prevention of Corruption Act. He was sentenced to one and         .....;
  a half years (18 months) rigorous imprisonment. A fine of Rs. 1,000/-
  (Rupees One Thousand Only) was also imposed upon him by Special
  Judge, Fatehgarh Sahib, Punjab. He preferred an appeal thereagainst
H marked as Criminal Appeal No. 1022-SB/04. In the said appeal, an
- ---1
                     STATE v. DEEPAK MATTU [SINHA, J.]                           93


   )                                                                                   A
         application was filed by the respondent for suspending of conviction
         purported to be under Section 389 of the Code of Criminal Procedure,
         1973. By reason of the Order dated 11.1.2005, learned Judge of the
         Special Court allowed the said application holding;
                "I have heard Ld. Counsel for the applicant-appellant Deepak B
                Mattu and Deputy Advocate General, Punjab appearing for the
                respondent on an application moved under Section 389 Cr.P.C.
                for suspension of conviction recorded under Sections 7 and 13(2)
                of the Prevention of Corruption Act.
                The sentence of the appellant has already been suspended. He is c
                working as Junior Engineer in Punjab State Electricity Board. It is
                argued that if his conviction is not suc;pended, he may have to face
                dismissal from service. Three flaws in the impugned judgment have
                been pointed out. Firstly, that shadow witness has not been
                examined; secondly, that the alleged demand was of Rs. 2000/- D
                and this bribe money was allegedly paid but at the time of recovery,
                only an amount of Rs. 1900/- was recovered; and thirdly, there is
                no corroboration to the demand in as much as the complaint alone
                proved the same and the shadow witness in whose presence it was
                made has not been examined.                                          E

                It will take a long time to decide the appeal. There are fairly good
                points to argue. This application is allowed and the conviction of
                the appellant is suspended during the pendency of the appeal.''
               3. An application was filed by the appellant herein for vacation of F
         stay of conviction granted to him by reason or the said order with a prayer
         to recall the same, whereby the Court attention was drawn to a judgment
         of this Court in KC. Sareen v. CB.I, Chandigarh, (2001] 6 SCC 584.
         By reason of the impugned judgment while the Court accepted that an
         order suspending the conviction could be allowed only in a very exceptional G
 t---    case, dismissed the application of stay holding;
                "The present petition is not maintainable. Order dated 11.1.2005
                can neither be reviewed nor recalled. It was passed in the presence
                of the Deputy Advocate General, Punjab, who represented the H
    94             SUPREME COURT REPORTS                    [2007] 10 S.C.R.


A           respondent-State. The merits of the case were considered. It was         (
            considered that it will take a long time to decide the appeal and
            there are fairly good points to be argued. Hence, application under
            Section 389 Cr.P.C. was allowed and the conviction of the
            appellant recorded under Sections 7 and 13(2) of the Prevention
B           of Corruption Act was suspended during pendency of appeal.
            There is no blanket bar imposed on the Appellate Court to grant
            stay of conviction in corruption cases. After going through the
            'grounds of appeal' and the contents of the application moved under      I
                                                                                    . .L-
            Section 389 Cr.P.C., it was considered that it was an exceptional
c           case. Hence, the conviction was stayed during pendency of the
            appeal. Sentenced imposed on the appellant had already been
            stayed. Now, there exists no reason, either for vacation of the order
            dated 11.1.2005 or to review/recall the same."
        4. Ms. Ruchira Gupta, learned counsel appearing on behalf of the
D appellant would submit that the High Court being aware of the decisions
  of this Court holding that ordinarily the suspension of conviction should
                                                                                     -~-
  not be granted, must be held to have committed a manifest error in passing
  the impugned judgment. Mr. Neeraj Kumar Jain, learned counsel appearing
  on behalf of the respondent on the other hand would submit that the
E respondent being a government servant and he having been convicted only
  for a period of one and a half years, the High Court cannot be said to
  have committed any error in suspending the judgment of conviction. In
  any event, the learned counsel submitted that the Court for all intent and
  purport having arrived at a decision that an exceptional case have been
F made out, no interference therewith by this Court is warranted.
         5. Section 389 of the Code of Criminal Procedure, 1973 reads as
    under:-
         "389. Suspension of sentence pending the appeal; release of
G              appellant on bail -
               (1) Pending any appeal by a convicted person, the Appellate
            Court may, for reasons to be recorded by it in writing, order that
            the execution of the sentence or order appealed against be
            suspended and, also, if he is in confinement, that he be released
H
- -+
             STATE v. DEEPAKMATTU[SINHA,J.]                                95


        on bail or on his own bond:                                              A

 '      Provided that the Appellate Court shall, before releasing on bail
        or on his own bond a convicted person who is convicted of an
        offence punishable with death or imprisonment for life or
        imprisonment for a term of not less than ten years, shall give
                                                                          B
        opportunity to the Public Prosecutor for showing cause in writing
        against such release.
        Provided further that in cases where a convict~ person is released
        on bail it shall be open_ to the Public Prosecutor to file an
        application for the cancellation of the bail.                            t
           (2) The power conferred by this section on an Appellate Court
        may be exercised also by the High Court in the case of an appeal
        by a convicted person to a Court subordinate thereto.
            (3) Where the convicted person satisfies the Court by which D
        he is convicted that he intends to present an appeal, the Court shall-
        (i) where such person, being on bail, is sentenced to imprisonment
            for a term not exceeding three years, or
                                                                                 E
        (ii) where the offence of which such person has been convicted
             is a bailable one, and he is on bail,
        order that the convicted person be released on bail, unless there
        are special reasons for refusing bail, for such period as will afford        I


        sufficient time to present the appeal and obtain the orders of the F
        Appellate Court under sub-section (1 ), and the sentence of
        imprisonment shall, so long as he is so released on bail, be deemed
        to be suspended.

            (4) When the appellant is ultimately sentenced to imprisonment G
~       for a term or to imprisonment for life, the time during which he is
        so released shall be excluded in computing the term for which he
        is so sentenced."

       6. An order of suspension of conviction admittedly is not to be readily
                                                                                 H
    96           SUPREME COURT REPORTS                    [2007] 10 S.C.R.

A granted. The High Court in its order dated 11.1.2005 passed a judgment           (
  irrespective of conviction and sentence, only on two grounds;
          (t) A long time may be taken to decide the appeal.
          (ti) There are good points to argue.
B      7. While passing the said Order, the High Court did not assign any
  special reasons. Possible delay in disposal of the appeal and there are
  arguable points by itself may not be sufficient to grant suspension of a
  sentence. The High Court while passing the said Order merely noticed
  some points which could be raised in the appeal. The grounds so taken
C do not suggest that the respondent was proceeded against by the State,
  malafide or any bad faith. In KC. Sareen (supra), this Court opined;
          "11. The legal position, therefore, is this: though the power to
          suspend an order of conviction, apart from the order of sentence,
D         is not alien to Section 389(1) of the Code, its exercise should be
          limited to very exceptional cases. Merely because the convicted
          person files an appeal in challenge of the conviction the court should
          not suspend the operation of the order of conviction. The court
          has a duty to look at all aspects including the ramifications of
          keeping such conviction in abeyance. It is in the light of the above
E
          legal position that we have to examine the question as to what
          should be the position when a public servant is convicted of an
          offence under the PC Act. No doubt when the appellate court
          admits the appeal filed in challenge of the conviction and sentence
          for the offence under the PC Act, the superior court should
F
          normally suspend the sentence of imprisonment until disposal of
          the appeal, because refusal thereof would render the very appeal
          otiose unless such appeal could heard soon after the filing of the
          appeal. But suspension of conviction of the offence under the PC
          Act, dehors the sentence of imprisonment as a sequel thereto, is a
G
          different matter.
          12. Corruption by public servants has now reached a monstrous
          dimension in India. Its tentacles have started grappling even the
          institutions created for the protection of the republic. Unless those
H         tentacles are intercepted and impeded from gripping the normal
               STATE v. DEEPAKMATTU[SINHA,J.]                             97

          and orderly functioning of the public offices, through strong A
\
(
          legislative, executive as well as judicial exercises the corrupt public
          servants could even paralyse the functioning of such institutions and
          thereby hinder the democratic polity. Proliferation of corrupt public
          servants could gamer momentwn to cripple the social order if such
          men are allowed to continue to manage and operate public B
          institutions. 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 c ·
          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 D
          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 E
          such public institutions besides demoralising the other honest public
           servants who would either be the colleagues or 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 F .
           the system itself. Hence it is necessary that the court should not
           aid the public servant who stands convicted for corruption charges
           to hold only (sic) public office until he is exonerated after
           conducting a judicial adjudication at the appellate or revisional level.
           It is a different matter if a corrupt public officer could continue to
          hold such public office even without the help of a court order G
           suspending the conviction.''

         8. In State ofMaharashtra v. Gajanan and Anr., [2003112 SCC
    432, relying upon another decision of this Court in Union ofIndia v. Atar
    Singh, [2003] 12 SCC 434 and also KC. Sareen (su.pra), it was held; H
     98            SUPREME COURT REPORTS                     [2007] 10 S.C.R.

.A          "5. In the said judgment of K. C. Sareen this Court has held that
                                                                                     f
            it is only in very exceptional cases that the court should exercise      '
            such power of stay in matters arising out of the Act. The High
            Court has in the impugned order nowhere pointed out what is the
            exceptional fact which in its opinion required it to stay the
B           conviction. The High Court also failed to note the direction of this
            Court that it has a duty to look at all aspects including ramification
            of keeping such conviction in abeyance. The High Court, in our
            opinion, has not taken into consideration any of the above factors
            while staying the conviction. It should also be noted that the view
c           expressed by this Court in K. C. Sareen case was subsequently
            approved followed by the judgment of this Court in Union ofIndia
            v. Atar Singh".

        9. Relying on the aforementioned two decisions, an order is passed
  in a wrong, illegal premise. There is no impediment which comes on its
D way not to correct an apparent error. Section 362 of the Code of Criminal
  Procedure is only operative in a situation where a final order has been
  passed. The Code of Criminal Procedure confers inherent power in the
  High Court unlike the lower court's.
E         10. We, therefore, see no reason as to why High Court cannot
     modify its own interlocutory order when the matter is yet to be finally
     disposed of.
       11. We, therefore, are of the opinion that the High Court was not
  correct in its view. We, therefore, allow this appeal by setting aside both
F the orders. No costs.
     D.G.                                                      Appeal allowed.