Supreme Court: Distinction between suspension of sentence and stay of conviction

It is well settled in law that there is a
distinction between suspension of sentence and stay of
conviction.
This has been succinctly stated in Rama
Narang Vs. Ramesh Narang 3 :
“7.........
“Section 389(1) empowers the Appellate Court
to order that the execution of the sentence or
order appealed against be suspended pending
the appeal. What can be suspended under this
provision is the execution of the sentence or the

execution of the order. Does 'Order' in Section
389(1) empowers the Appellate Court to order
that the execution of the sentence or order
appealed against be suspended pending the
appeal. What can be suspended under this
provision is the execution of the sentence or the
execution of the order. Does 'Order' in- Section
389(1) mean order of conviction or an order
similar to the one under Sections 357 or 360 or
the Code? Obviously, the order referred to in
Section 389(1) must be an order capable in
execution. An order of conviction by itself is not
capable of execution under the Code. It is the
order of sentence or an order awarding
compensation or imposing fine or release on
probation which are capable of execution and
which if not suspended, would be required to be
executed by the authorities.
In certain situations the order of conviction
can be executable, in the sense, it may incur a
disqualification as in the instant case. In such a
case the power under Section 389(1) of the
Code would be invoked. in such situations, the
attention of the Appellate Court must be
specifically invited to the consequence that is
likely to fall to enable it to apply its mind to the
issue since under Section 389(1) it is under an
obligation to support its order 'for reasons to be
recorded by it in writing'. If the attention of the
Court is not invited to this specific consequence
which is likely to fall upon conviction how can it
be expected to assign reasons relevant
thereto? ... If such, a precise request was made
to the Court pointing out the consequences
likely to fall on the continuance of the
conviction order, the Court would have applied
its mind to the specific question and if it
thought that case was made out for grant of
interim stay of the conviction order, with or
without conditions attached thereto, it may
have granted an order to that effect."

Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 80 OF 2009

Govt. of A.P. Vs B. Jagjeevan Rao

Dated;MAY 12, 2014
 Citation: 2014viii AD (S.C.) 457, 2014(7)SCALE434, 2014(3)SCT323
DIPAK MISRA, J .

Calling in question the legal propriety of the
judgment and order dated 7.8.2007 passed by the
Division Bench of the High Court of Judicature, Andhra
Pradesh at Hyderabad in W.P. No. 16102 / 2007 whereby
the High Court has overturned the decision rendered by
the A.P. State Administrative Tribunal (for short,'the
Tribunal) in O.A. No. 2206 / 2007
vide order dated
19.04.2007, the present appeal has been preferred by
special leave.
2.
The facts
lies in
a narrow
compass.
The
2
respondent
herein
was
chargesheeted
for
offences
punishable under Section 7 and 13(1)(d) read with
Section 13(2) of the Prevention of Corruption Act, 1988
(for short, 'the Act') and eventually after trial was
convicted and sentenced to rigorous imprisonment of
one year and payment of fine of Rs.1000 / -
with a
default clause. He assailed the conviction and sentence
in Criminal Appeal No. 371 / 2007 and the High Court
vide order dated 29.03.2007 in Crl.A.M.P. No. 497 / 2007
entertaining an application under Section 389(1) of the
Code of Criminal Procedure, 1973 (for short, 'the Code')
directed suspension of sentence and enlargement of bail
on certain conditions.
Be it noted, the High Court did
not direct stay of the judgment of conviction recorded by
the learned trial judge.
3.
issued
After the conviction the Department of Finance
G.O.No.91
dated
16.4.2007
dismissing
the
respondent from service by invoking power under Rule
25 of A.P.C.S.(CC&A) Rules, 1991 (for short, 'the Rules').
The correctness of said order of dismissal was called in
3
question before the Tribunal on the foundation that
once there was an order under Section 389(1) of the
Code, the concerned Department could not have taken
recourse to Rule 25(1) of the Rules to dismiss the
respondent from service. The Tribunal repelled the said
submission
of
the
respondent
and
resultantly,
dismissed the original application.
4.
Being dissatisfied with the aforesaid decision, the
respondent preferred a writ petition and the High Court
analysing the effect and impact of Rule 25(1) of the
Rules and taking note of the order passed in criminal
appeal came to hold that when the criminal appeal was
pending
for
suspension
adjudication
and
there
had
been
of sentence, the concerned Department
could not have passed an order of dismissal from
service, and accordingly quashed the order of the
tribunal and lancinated the order of dismissal.
5.
It is contended by Mr. Babu, learned counsel for
the appellant that the High Court has fallen into grave
error in interpreting Rule 25 of the Rules and has
4
misconstrued
the
issue
pertaining
to
the
stay
of
conviction, and order of suspension of sentence as
engrafted under Section 389(1) of the Code.
He has
relied on the decisions rendered in The Director of
Collegiate Education Vs. S. Nagoor Meera 1 and K.C.
Sareen Vs. CBI, Chandigarh 2 .
6.
It is not in dispute that the respondent was
convicted by the Principal Special Judge for SPE & ACB
Cases for the offences punishable under the Act.
The
High Court, as the order would reflect, had only directed
suspension of sentence. There was no order of stay of
conviction.
It is well settled in law that there is a
distinction between suspension of sentence and stay of
conviction.
This has been succinctly stated in Rama
Narang Vs. Ramesh Narang 3 :
“7.........
“Section 389(1) empowers the Appellate Court
to order that the execution of the sentence or
order appealed against be suspended pending
the appeal. What can be suspended under this
provision is the execution of the sentence or the
1 (1995) 3 SCC 377
2 (2001) 6 SCC 584
3 (1995) 2 SCC 513
5
execution of the order. Does 'Order' in Section
389(1) empowers the Appellate Court to order
that the execution of the sentence or order
appealed against be suspended pending the
appeal. What can be suspended under this
provision is the execution of the sentence or the
execution of the order. Does 'Order' in- Section
389(1) mean order of conviction or an order
similar to the one under Sections 357 or 360 or
the Code? Obviously, the order referred to in
Section 389(1) must be an order capable in
execution. An order of conviction by itself is not
capable of execution under the Code. It is the
order of sentence or an order awarding
compensation or imposing fine or release on
probation which are capable of execution and
which if not suspended, would be required to be
executed by the authorities.
In certain situations the order of conviction
can be executable, in the sense, it may incur a
disqualification as in the instant case. In such a
case the power under Section 389(1) of the
Code would be invoked. in such situations, the
attention of the Appellate Court must be
specifically invited to the consequence that is
likely to fall to enable it to apply its mind to the
issue since under Section 389(1) it is under an
obligation to support its order 'for reasons to be
recorded by it in writing'. If the attention of the
Court is not invited to this specific consequence
which is likely to fall upon conviction how can it
be expected to assign reasons relevant
thereto? ... If such, a precise request was made
to the Court pointing out the consequences
likely to fall on the continuance of the
conviction order, the Court would have applied
its mind to the specific question and if it
thought that case was made out for grant of
interim stay of the conviction order, with or
without conditions attached thereto, it may
6
have granted an order to that effect."
7.
A similar
view has been expressed in
K.C.
Sareen Vs. CBI, Chandigarh (supra).
8.
The question, thus, emerges whether an inquiry
should have been held under Article 311(2) of the
Constitution, regard being had to the scheme of Rule
25(1) of the Rules.
extract
In this context, we would like to
a passage from the pronouncement
of the
Constitution Bench in Union of India Vs. Tulsiram
Patel 4 .
In the said case, the officer concerned was
convicted under Section 332 of the IPC and the learned
Magistrate had released him on probation under the
Probation of Offenders Act. Considering the said factual
position the Constitution Bench opined thus:
“152. The second ground upon which the High
Court rested its decision is equally unsustainable.
The circumstances which were taken into
consideration by the disciplinary authority have
been sufficiently set out in the order of
compulsory retirement, they being that the
Respondent's conviction under section 332 of the
Indian Penal Code and the nature of the offence
committed which led the disciplinary authority to
the conclusion that the further retention of the
4
AIR 1985 SC 1416
7
Respondent in the public service was undesirable.
The mention of section 332 of the Indian Penal
Code in the said order itself shows that
Respondent was himself a public servant and had
voluntarily caused hurt to another public servant
in the discharge of his duty as such public
servant or in consequence of an act done by that
person in the lawful discharge of his duty. The
facts here are eloquent and speak for themselves.
The Respondent had gone to the office of his
superior officer and had hit him on the head with
an iron rod. It was fortunate that the skull of Raj
Kumar was not fractured otherwise the offence
committed would have been the more serious one
under section 333. The Respondent was lucky in
being dealt with leniently by the Magistrate but
these facts clearly show that his retention in
public service was undesirable. In fact, the
conduct of the Respondent was such that he
merited the penalty of dismissal from government
service and it is clear that by imposing upon him
only the penalty of compulsory retirement, the
disciplinary authority had in his mind the fact
that the Magistrate had released him on
probation. We accordingly hold that clause (i) of
Rule 19 of the Civil Services Rules was rightly
applied to the case of the Respondent .”
9.
Having stated the principle, we shall now advert
to the Rule position.
Rule 25(1) being relevant is
reproduced below:
“Special
Procedure
in
Certain
Cases:
Notwithstanding anything contained in Rule 20
to Rule 24
(1)
where penalty is imposed on a
Government Servant on the ground of conduct
8
which has led to his conviction on a criminal
charge, the disciplinary authority may consider
the circumstances of the case and make such
orders thereon as it deems fit .”
10.
The requirement of the said Rule, as it seems, is
that the conduct of Government servant that had led to
conviction
on
the
criminal
charge
and
the
circumstances of the case are to be considered by the
disciplinary authority before imposing the appropriate
punishment.
In the case at hand, the respondent was
convicted under
Section
7 and 13(1)(d) read with
Section 13(2) of the Act and sentenced to one year
rigorous imprisonment.
Nagoor
Meera
(supra),
In almost similar case in S.
a two- Judge
Bench,
after
referring to the conceptual mandate of Article 311(2)
and after referring to the dictum in Shankar Dass Vs.
Union of India 5 has expressed thus:
“10
What is really relevant thus is the
conduct of the government servant which has
led to his conviction on a criminal charge. Now,
in this case, the respondent has been found
guilty of corruption by a criminal court. Until
the said conviction is set aside by the appellate
or other higher court, it may not be advisable to
retain such person in service. As stated above,
5 (1985) 2 SCC 358
9
if he succeeds in appeal or other proceeding,
the matter can always be reviewed in such a
manner that he suffers no prejudice.
11.
The Tribunal has given yet another
reason for quashing the show- cause notice, viz.,
that whereas the conviction of the criminal
court was on 4- 2- 1991, the impugned show-
cause notice was issued only on 27- 10- 1993.
The appellant has explained that though the
respondent (sic appellant) had come to know
the conviction soon after the judgment of the
criminal court, of the order of the High Court
suspending the sentence. It is stated that after
obtaining legal advice, the show- cause notice
was issued. In our opinion, the delay, if it can
be called one, in initiating the proceedings has
been properly explained – and in any event, the
delay is not such as to vitiate the action taken. ”
11.
Regard being had to the aforesaid enunciation of
law and keeping in view the expected standard of
administration, conviction on the charge of corruption
has to be viewed seriously and unless the conviction is
annulled, an employer cannot be compelled to take an
employee back in service.
Therefore, the High Court
has clearly erred in its interpretation of Rule 25(1) and
further committed illegality in not keeping in mind the
distinction between stay of conviction and suspension of
sentence as envisaged under Section 389(1) of the Code.
10
12. In the result, the appeal is allowed, the judgment
and order
of
the
High
Court,
being
sensitively
susceptible, are set aside. There shall be no order as to
costs.
........................J.
(DIPAK MISRA)
........................J.
(N.V. RAMANA)
NEW DELHI
MAY 12, 2014

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