Partly allowed

Suryakant Santaram Wankalas v. Rajendra Vishwanath Bhopale and Anr.

Bombay HC16 Mar 2012APPLN/4215/2011

Case brief

AI extract

What is this about?

This court disposed of a criminal application seeking to recall an order suspending conviction. The High Court upheld the suspension order as passed earlier, noting the absence of nexus between the matrimonial offence and the respondent's job, and emphasizing that such orders depend on specific facts and cannot be indiscriminately applied.

What did the court decide?

The criminal application challenging the suspension of the conviction order is disposed of without interfering with the impugned order.

Suryakant Santaram Wankalas Vs Rajendra… — Constitutional and Fundamental Rights | Bombay HC (2012)

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Cri. Appln. No.4215/2011

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY,

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BENCH AT AURANGABAD

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CRIMINAL APPLICATION NO.4215 OF 2011 IN CRIMINAL APPEAL NO.307 OF 2009

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Suryakant s/o Santram Wankalas ... APPLICANT

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VERSUS

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Rajendra s/o Vishwanathrao Bhopale and another

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... RESPONDENTS

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Shri V.D. Sapkal, Advocate holding for Shri R.M. Pardeshi, Advocate for applicant Shri R.S. Shinde, Advocate holding for Shri Joydeep Chatterji, Advocate for respondent No.1. Shri N.B. Patil, A.P.P. for respondent No.2.

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CORAM : U.D. SALVI, J.

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DATED : 16th March, 2012.

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PER COURT :

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Heard. Perused application, annexures therewith and

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the record.

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The applicant is the complainant, on the basis of whose grievance a crime was registered under Sections 498-A, 306 read with Section 34 of the Indian Penal Code against the respondent Nos.1 and 6 and others at C.R. No.120/2006 with Beed

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Cri. Appln. No.4215/2011

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City Police Station on 27/3/2007. On completion of the investigation, the charge sheet was filed and in due course the case was committed to the Court of Sessions. The prosecution examined the applicant and five other witnesses including the handwriting expert. Parties were heard and the learned Sessions Judge convicted the respondent No.1, husband of the deceased for the offence punishable under Section 498-A of the Indian Penal Code and acquitted him of the charge under Section 306 of the Indian Penal Code. All other accused were acquitted of all the charges levelled against them.

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Being aggrieved by the judgment and order passed by the learned Sessions Judge, Beed, the respondent No.1 filed the present appeal. Initially, he got the sentence suspended and later on moved an application – Application No.2185/2009 for suspension of conviction. Parties to the appeal i.e. the respondent No.1 and State were heard and this Court passed the impugned order dated 5/8/2009 suspending the conviction of the respondent No.1/ accused herein i.e. the appellant in the Appeal against the conviction of the offence punishable under Section 498-A of the Indian Penal Code.

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It is now contended by the applicant/ complainant that he has filed Criminal Revision Application No.263/2009 challenging the order of acquittal of the respondent No.1/accused and other accused in the Sessions Case No.97/2007 and the same is pending. Yet, the applicant contends, he was not heard while disposing off the Application No.2185/2009 as he was not party to the Criminal Appeal No.307/2009 and on realising that the order of conviction has been suspended, he has moved the present application for recalling the said order.

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Mr. V.D. Sapkal, learned Advocate for the applicant submits that the impugned order does not disclose the reasons for suspension of conviction and ought not to have been passed unless exceptional case was made out for suspension of conviction; and the delay in final hearing of the appeal cannot be the reason for suspension of conviction. He further submits that if the reason given in the impugned order that the domestic affairs of the applicant has no nexus with the work of the respondent No.1 as a Assistant Engineer is to be considered for suspension of conviction then in all matrimonial matters the conviction have to be stayed invariably. It is for this reason he added that the impugned order being of interlocutory nature, can be recalled by this Court at any stage of the proceedings. In support of his submissions, he

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Cri. Appln. No.4215/2011

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relied upon the judgments delivered by the Hon’ble Apex Court in Navjot Singh Sidhu’s case (Navjot Singh Sidhu Vs. State of Punjab & anr. : 2007 (1) SCC (Cri.) 627) and Deepak Mattu’s case (State of Punjab Vs. Deepak Mattu : [ (2008) 1 SCC (Cri.) 687 ].

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Countering these submissions, Mr. R.S. Shinde, learned Advocate for the respondent No.1 submitted that all facets of the case were considered by this Court and only thereafter the impugned order came to be passed. He invited the attention of the Court to para 4 of the impugned order to point out the factors which weighed in the mind of this Court while passing the impugned order. He submitted that the crime alleged has no nexus in working of the respondent No.1/ accused as an Assistant Engineer and keeping the conviction unsuspended could have deprived him of his job as Assistant Engineer and consequently, him as well as his two minor children and old parents of economic support. This, according to him, are the exceptional circumstances which justifies the suspension of the conviction. In his view, there is no apparent error committed by this Court to warrant recall of the impugned order. Commenting on the judgments cited by the applicant/ complainant, he submitted that on facts there can be no parallel between the present case and the cases decided by the Hon’ble Apex Court. According to him, only if there is any apparent error

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Cri. Appln. No.4215/2011

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committed while passing the interlocutory order of the nature like the one under consideration, the High Court can recall its own order.

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In Navjot Singh Sidhu’s case, the appellant Navjot Singh Sidhu with co-accused Rupinder Singh Sidhu was tried for charges under Section 302 of the Indian Penal Code and Section 323 read with Section 34 of the Indian Penal Code, but was acquitted by the learned Sessions Judge, Patiala by the judgment and order dated 22/9/1999, which order was challenged by the State of Punjab by filing an appeal in the High Court and thereupon the appeal was allowed and the appellant before the Apex Court was convicted under Section 304-II of the Indian Penal Code. Navjot Singh Sidhu, the petitioner before the Apex Court was a sitting Member of Parliament and immediately after the pronouncement of judgment of the High Court, he resigned from the membership of Lok Sabha for maintaining probity and moral values in public life. However, Navjot Singh Sidhu wanted to remain in public life and, therefore, desired to contest the elections again. He, therefore, moved an application for suspending the order of conviction passed against him by the High Court. The Hon’ble Apex Court, after hearing the parties, allowed his application and suspended the order of conviction passed against

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the appellant by the High Court. The Hon’ble Apex Court took into account Rama Narang’s case (Rama Narang Vs. Ramesh Narang & ors. : (1995) 2 SCC 513), Ravi Kant’s case (Ravi Kant S. Patil Vs. Sarvabhouma S. Bagali (JT 2006 (1) SC 578), A. Jaganathan’s case (State of Tamil Nadu Vs. A. Jaganathan ( (1996) 5 SCC 329), K.C. Sareen’s case (K.C. Sareen Vs. C.B.I., Chandigarh : (2001) 6 SCC 584), B.R. Kapur’s case (B.R. Kapur Vs. State of Tamil Nadu & anr. : (2001) 7 SCC 231) and Gajanan’s case (State of Maharashtra Vs. Gajanan & anr. : (2003) 12 SCC 432).

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The Hon’ble Apex Court recognized the power to stay the conviction with a rider that the grant of stay of conviction can be resorted to in rare cases depending upon special facts of the case.

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In Deepak Mattu’s case (supra), the suspension of conviction recorded under Sections 7 and 13(2) of the Prevention of Corruption Act against the public servant working as a Junior Engineer in Punjab State Electricity Board was under judicial scanner. The Hon’ble Apex Court, with reference to K.C. Sareen’s case (supra), made following observations in paragraph Nos.11 and 12:-

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“11. The legal position, therefore, is this : though the power to suspend an order of conviction, apart from the order of sentence, 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 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 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 different matter.

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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 tentacles are intercepted and impeded from gripping the normal and orderly functioning of the public offices, through strong 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 garner momentum to cripple the social order if such men are allowed to continue to manage and operate public 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

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Cri. Appln. No.4215/2011

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revisional forum has decided to entertain his challenge 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 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 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 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 suspending the conviction.”

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and concluded that the order of suspension was passed in wrong and illegal premise and there is no impediment which comes in its way not to correct an apparent error. The Hon’ble Apex Court further observed that Section 362 of the Criminal Procedure Code is only operative in a situation where a final order has been passed and as such, the order of suspension of conviction being interlocutory order, the High Court, in exercise of its inherent

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powers unlike lower Courts, can modify its own order when the matter is yet to be finally disposed off.

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Undoubtedly, this Court has power to modify or recall the order of suspending conviction in a Criminal Appeal as such order has no effect of deciding the issues finally. What is to be looked for is whether there was any apparent error or illegality committed while passing the said order.

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Perusal of the impugned order reveals that this Court particularly the predecessor Court (Mr. Justice V.R. Kingaonkar who then was presiding in this Court), took into account the nature of the offence and the evidence that was led in proving it. This Court also took into account whether the offence as alleged had any nexus with the duties of the respondent No.1 and weighed the said facts with the immediate effect as it would have on the job of the respondent No.1 and consequently on his family members comprising of two minor children and old parents. This Court made the following observations in that regard at para No.4 of the impugned order :

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At the outset, it may be gathered that the charge of matrimonial cruelty was levelled against the applicant on the ground that he developed illicit

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relationship with a woman and, therefore, started giving ill-treatment to the deceased wife. Another contention of the prosecution was that the deceased was being compelled to do excessive household work and was laboured for doing domestic chores. She could not tolerate the continuous maltreatment and cruelty meted out to her. The Investigating Officer admitted that he could not collect evidence to show extra marital relations of the applicant with some other woman. A suicide note was relied upon by the prosecution but the said note (Chitti - Exh.54) was held by the trial Court as not a document in the hand of the deceased Smita. In any case, the charge of matrimonial cruelty is attributed to the applicant on the basis of versions of the parents and close relatives of deceased Smita. It appears prima facie that the marriage was performed much prior to the alleged incident of the death of Smita. There is no written dying declaration and initially a case of accidental death was registered. The marriage was performed on 2.7.1999 at Beed. Deceased Smita committed suicide by selfstrangulation in the matrimonial home on 27.3.2006. Considering the relevant aspects of the matter, it may be stated that domestic affairs of the applicant have no nexus with his working as Assistant Engineer. The sentence has been already suspended. The applicant is a young person and is required to maintain his family members including two minor children and old parents. Considering the likelihood of delay in final hearing of the appeal, I am of the opinion that this is a fit case in which order of conviction deserves to be suspended. Hence, the application is allowed. The order of conviction is suspended.

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It clearly shows that this Court had given reasons for suspension of conviction and also given thought to its impact. Facts and circumstances do reveal that the crime alleged had no nexus with the working of respondent No.1 as Assistant Engineer.

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In Deepak Mattu’s case (supra), the appellant was convicted for corrupt practices in discharge of duties as public servant. Thus, the facts alleged had bearing on the duties the accused therein was required to discharge as a public servant. Suspension of conviction under Sections 7 and 13(2) of the Prevention of Corruption Act in his case had an effect of opening his way to a public office, which he held and abused prior to his conviction, and he was to get chance of abusing it further as a result of suspension of his conviction. This was bound to have adverse impact on the moral of other persons manning public office and consequently, result in erosion of confidence of the people in public institutions. Such is not the case before this Court. This Court was, therefore, justified in holding that the crime alleged had no nexus with the working of the respondent No.1 as Assistant Engineer. After having weighed this fact with the impact the conviction of the respondent No.1 was to have on his job and consequently on his family members, this Court was of the opinion that it was a fit case in which order of conviction deserved to be suspended. No illegality or apparent error is, therefore observed by this Court in passing of the impugned order. However, it needs to be noted that the impugned order has been passed in given set of facts and circumstances and cannot be indiscriminately used as

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a precedent to grant suspension of conviction in every crime arising out of matrimonial relations. With this, the present Criminal Application is disposed of.

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( U.D. SALVI, J. )

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fmp/cri4215.11

Suryakant Santaram Wankalas v. Rajendra Vishwanath Bhopale and Anr.

Case brief

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Suryakant Santaram Wankalas v. Rajendra Vishwanath Bhopale and Anr.

Case brief

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