2001 JTR(SC) 1497
2002 1 AICLR 479 ; 2002 1 CCR(SC) 27 ; 2004 CriLR 322 ; 2002 1 EastCrC(SC) 211 ; 2001 10 JT 212 ; 2002 4 RLW(Raj) 610 ; 2003 10 Scale 1010 ; 2004 Supp SCC(Cri) 461 ; 2002 1 WLC 24 ; 2001 KHC 4090 ; 2002 1 KLT(Online) 1083
SUPREME COURT OF INDIA
G.B.Pattanaik : Ruma Pal
Union Of India
Versus
Atar Singh
Case No. : 1086 of 2001
Date of Decision : 10/29/01
The appellate court's discretion to suspend a conviction under Section 389 cannot be exercised mechanically. Suspension cannot be granted solely on the ground that the convict might be removed from government service, and such discretionary orders are subject to judicial review by a higher court.
Act
Referred
:CONSTITUTION OF INDIA
: Art.136
CRIMINAL PROCEDURE CODE: S.389
INDIAN PENAL CODE: S.409
(A) Code of Criminal Procedure - Section 389 - Suspension of conviction - Discretion of appellate court - Suspension of conviction cannot be granted mechanically on the sole ground that non-suspension may lead to removal of a government servant from service - The exercise of such discretion is subject to the scrutiny of a higher court to ensure it was appropriately exercised. (Para 3)
Facts of the case:
A government servant was convicted under section 409 of the IPC and section 13 of the Prevention of Corruption Act. In an appeal before the High Court, the conviction was suspended under section 389 of the procedural code on the sole ground that non-suspension may lead to the removal of the delinquent servant from service.
Findings of Court:
The High Court mechanically passed the order suspending the conviction, and the discretion conferred under section 389 was not appropriately exercised in the present case.
Issues: Whether the High Court appropriately exercised its discretionary power under section 389 by suspending a conviction solely to prevent the possible removal of a government servant from service.
Ratio Decidendi: While the appellate court has the discretion to suspend a conviction under section 389, such power must be exercised judiciously and not mechanically. The correctness of the exercise of such discretion is subject to review by the higher court, which may set aside the order if the discretion was not appropriately exercised. (Para 3)
Result: Appeal disposed of; order of the High Court suspending the conviction set aside.
Facts of the case:
A government servant was convicted under section 409 of the IPC and section 13 of the Prevention of Corruption Act. In an appeal before the High Court, the conviction was suspended under section 389 of the procedural code on the sole ground that non-suspension may lead to the removal of the delinquent servant from service.
Findings of Court:
The High Court mechanically passed the order suspending the conviction, and the discretion conferred under section 389 was not appropriately exercised in the present case.
Issues: Whether the High Court appropriately exercised its discretionary power under section 389 by suspending a conviction solely to prevent the possible removal of a government servant from service.
Ratio Decidendi: While the appellate court has the discretion to suspend a conviction under section 389, such power must be exercised judiciously and not mechanically. The correctness of the exercise of such discretion is subject to review by the higher court, which may set aside the order if the discretion was not appropriately exercised. (Para 3)
Result: Appeal disposed of; order of the High Court suspending the conviction set aside.
Conviction - The Union of India relied on this case to argue that the High Court erred in exercising its discretion to suspend the conviction.
Discretion - Relied upon to support the argument that the High Court erred in mechanically suspending the conviction.
Discretion - Cited by the respondent to argue that the High Court's discretionary power should not be interfered with.
Guidelines - Cited regarding the advisability of guidelines for courts when exercising discretion under the Code of Criminal Procedure.
JUDGMENT
G.B.PATTANAIK, J.
(1) LEAVE granted.
(2) THIS appeal is directed against the impugned order of the High Court. The respondent accused, who has been convicted under section 409 IPC and section 13 of the Prevention of Corruption Act, preferred an appeal to the High Court, which has been entertained. On an application being filed under section 389 of the Code of Civil Procedure, the High Court has suspended the conviction solely on the ground that the non-suspension of conviction may entail removal of the delinquent government servant from service.
(3) LEARNED Additional Solicitor General appearing for the Union of India contends that the High Court totally erred in exercising its discretionary power under section 389 by suspending the conviction, and in support of the same reliance has been placed in the judgment of K.C. Sareen v. CBI, Chandigarh [JT2001 (6) SC 59]. The learned counsel for the respondents, on the other hand, contended that the discretion conferred on the High Court under section 389 having been duly exercised, the same need not be interfered with by this Court in exercise of power under section 136 of the Constitution. The learned counsel placed reliance on the 3-judge bench decision in the case of Rama Narang v. Ramesh Narang & Ors. [JT 1995 (1) SC 515] as well as the constitution bench decision of this Court in G.S. Sibbia & Ors. v. State of Punjab [1980 (2) SCC 565] wherein the Court was considering the question as to advisibility of issuing of certain directions and guidelines for being exercised by the High Court or the sessions judge while entertaining and deciding an application under section 438 of the Code of Criminal Procedure. It cannot be doubted that section 389 confers a discretion on the appellate court to decide the question of suspension of a conviction in a given case. But, if in exercise of that discretion, the court suspends a conviction, it would always be open for this Court to examine the correctness of exercising of that discretion and pass appropriate orders, in the event, this Court comes to a conclusion that the discretion had not been appropriately exercised. Having regard to the facts and circumstances of the present case and focusing our attention to the reasons, for which the High Court appears to have exercised discretion under section 389 and has suspended the conviction, we have no hesitation in coming to the conclusion that the High Court has mechanically passed the order by suspending the conviction, and in the case in hand discretion ought not to have been exercised by suspending the conviction. We, therefore, set aside the said order of the High Court suspending the conviction. Needless to mention, if the sentence has been suspended, the same would remain operative.
(4) THE appeal is disposed of accordingly.