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Suspension of sentence during pendency of appeal

Posted on 28 August 2008 by SANJAY DIXIT

Court

IN THE HIGH COURT OF DELHI



Brief



Citation



Judgement

IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : CORRUPTION MATTER
Date of Reserve: September 26, 2007
Date of Order: November 07, 2007
CRL.MB.No.1281/2007 in Crl.Appeal.No.560/2007
Jai Bhagwan ... Appellant
Through: Mr. D.C. Mathur, Sr. Advocate with Mr. V.S. Panwar, Mr.
Vishwajeet Singh, Mr. Ishkaran Singh and Ms. AnitaAbraham,
Advocates
Versus
State ( NCT of Delhi) ... Respondent
Through: Mr. Amit Sharma, Advocate
CORAM
JUSTICE SHIV NARAYAN DHINGRA
ORDER:
1. The menace of corruption has to be looked into proper perspective.
Corruption cannot be considered as a trivial offence. When a Defence
Inspector, responsible for approving the quality of components of tanks,
armed carrier and other vehicles deployed during war time, turns corrupt and
procure inferiors quality of components, the persons who die because of this
corruption are the innocent soldiers who go to the war front fighting for the
nation. When an inspector, responsible for removing squatters from the
roads, turns corrupt and accepts bribe/hafta from the squatters, driving and
walking on the roads becomes nightmare resulting into accidental deaths and
loss of lives which could be saved had the person not been corrupt. When a
health inspector, responsible for the checking of food adulteration or food
being sold in open, turns corrupt and accepts bribe, the person who fell prey
to his corruption are those poor persons who eat unhygienic food. When
overloaded trucks go beyond control of drivers killing someone, you must be
reminded of traffic inspector who turned corrupt and allowed to move the
truck, when you find patients having died in hospital because of spurious
drugs, you must feel the invisible hands of many involved in the supurious
drug racket. When you find that the flat alloted to you has already been sold
without your knowledge, you must remember a corrupt Babu in local
development authority. When you find no action is taken against criminals
despite FIRs, you must be reminded of corrupt police inspector. Tentacles of
devil of corruption can be seen everywhere. It has crippled and reduced to
naught many a schemes run for the benefit of poor, resulting into death by
starvation and malnutrition of the downtrodden.
2. Prevention of Corruption Act was intended to curb this evil of corruption
and bribe, but experience shows that corruption has increased manifold day
in and day out and now India is considered one amongst the most corrupt
nations. Supreme Court in State of M.P. And others v. Ram Singh 2000 SCC
(Cri.) 886 observed as under: “8. Corruption in a civilized society is a
disease like cancer, which if not detected in time, is sure to maliganise (sic)
the polity of the country leading to disastrous consequences. It is termed as a
plague which is not only contagious but if not controlled spreads like a fire
in a jungle. Its virus is compared with HIV leading to AIDS, being
incurable. It has also been termed as royal thievery. The socio-political
system exposed to such a dreaded communicable diseased is likely to
crumble under its own weight. Corruption is opposed to democracy and
social order, being not only anti-people, but aimed and targeted against
them. It affects the economy and destroys the cultural heritage. Unless
nipped in the bud at the earliest, it is likely to cause turbulence “ shaking of
the socio-economic-political system in an otherwise healthy, wealthy,
effective and vibrating society. “
3. In the instant case, the appellant was a sanitary inspector, responsible for
checking the food being sold in open. He visited the complainant, who was
selling boiled eggs as squatter opposite Charat Palika Hospital Moti Bagh
and demanded bribe. On a complaint lodged by complainant/squatter, he
was caught red-handed accepting the bribe. Trial proceeded and he was
convicted by the learned trial court under Section 7 of Prevention of
Corruption Act (for short, “the Act”) and under Section 13(2) read with
Section 13(1) (d) of the Act and was convicted to undergo rigorous
imprisonment for a term of two years and fine under Section 7 and 3 years
RI and fine under Section 13(1)(d) of the Act vide judgment dated 30th
August and order of sentence dated 31st August, 2007.
4. This application has been preferred by the appellant for suspension of
sentence during the pendency of appeal. The counsel for the appellant
argued that since the sentence awarded to the appellant was a fixed sentence,
this Court should, as a normal rule, when appeal is preferred, suspend the
sentence and rejection of application should be an exception relying on
Kiran Kumar v. State of M.P. JT 2000 (Suppl.1) SC 208. He also relies upon
AIR 1999 SC 1859 Bhagwan Rama Shinde Gosai and ors. v. State of
Gujarat.
5. The other argument advanced by learned counsel for the appellant is that
the complainant in this case did not support the prosecution fully and he was
cross examined by Additional Public Prosecutor. Since the complainant was
prime witness, the testimony of other witnesses i.e. panch witnesses, should
only be considered as corroborative having no value in the wake of
complainant turning hostile.
6. The next argument advanced by learned counsel for the appellant is that
where the sentence was three years or less, the appellant has a right to be
released on bail. In case of 3 years sentence, the trial court has been given
powers to give interim bail to the appellant and when trial court has released
the appellant on interim bail, this Court should only confirm the bail granted
to by the trial court.
7. A perusal of the judgment in case of Kiran Kumar and Bhagwan Rama
Shinde Gosai would show that in both the cases, the Hon'ble Supreme Court
observed that the suspension of sentence should be considered liberally and
the approach should be different in case of fixed period of sentence and life
imprisonment. However, the Supreme Court further observed that in serious
offences instead of considering application of suspension of sentence,
endeavour should be made to dispose of the appeal on merits at an early date
otherwise the valuable right of appeal would be an exercise in futility by
efflux of time.
8. The manner in which the criminal justice system works in this country,
ensures that trial takes many a years in concluding. Normally, the accused is
granted bail in all corruption cases during trial, either before his arrest or
after arrest or after few days of his custody. After trial, the appeals take
much more number of years and the entire process, starting from the date of
complaint till disposal of the appeal before the highest court, takes around
20- 25 years. After 20-25 years, when a person is finally declared as a
convict by the highest court, the Court finds that at the time of commission
of crime he was a bachelor or middle aged and by the time conviction is
finally upheld, he has become a middle aged person, married, having
children and is suffering from various ailments, it is a normal thing that 'trial'
of the person is considered a period of 'agony' undergone by the him and this
'agony' is considered by the courts as part of the sentence and the real
sentence awarded is the period of imprisonment already undergone, which
may be a few days or a few months. We tend to forget the 'agony' of society
and the fate of complainant who dared complain. The entire purpose of the
Legislature of sentencing the offender stands defeated and that is the one
reason why the wages of corruption are considered more attractive in this
country. A corrupt man is not complained against because the giver of bribe
and taker of bribe both gain advantage. It is only in rare cases where the
taker of bribe becomes so bold that he starts demanding bribe without giving
any unlawful advantage, even for lawful works that the giver of bribe
approaches the law machinery. The person caught is not always a first- timer
corrupt. He may have been indulging into corrupt activities for a long
number of years. It is to his advantage that the trial is prolonged, hearing of
appeals is prolonged. He spends a fraction of the amount, earned by corrupt
practices on, litigations and professionals to see that ultimately he makes
criminal justice system as a laughing stock. In this process, the entire
legislative purpose of punishing a corrupt, stands defeated.
9. A perusal of Section 389 Cr.P.C would show that suspension of sentence
during pendency of appeal is not the absolute right of the convict. The
discretion to suspend the sentence vests in the court and it is required to be
exercised judicially keeping in view all facts and circumstances and the
nature of offence. The Court has to exercise this discretion with utmost care
and caution, balancing one's right and liberty on one hand and the interest of
the society on the other. It is for this reason that despite the presumption of
innocence being there during appeal, the convicts in offences like murder,
ransom kidnapping, culpable homicide, rape etc. are not normally granted
bail, though some of them may get acquitted after final appeal. In the
criminal justice system which we have, delays have entered for varioius
reasons and is a fact of life. Merely because there is delay in hearing of
appeals, every person convicted by the trial court is not let loose on the
society.
10. I consider corruption cannot be looked upon an ordinary crime and has
to be considered as serious crime eating away the national character and
national wealth.
11. Looking in the act of the appellant, who was a sanitary inspector
responsible for guarding the health of the public, accepted bribe form the
squatter selling open food, I consider that it is not a fit case for suspension of
sentence. The application is hereby dismissed.
Crl.Appeal.No.560/2007
List this appeal for hearing on 20th March, 2008.
Sd/-
SHIV NARAYAN DHINGRA, J.



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