Paragraph numbers below are the court’s original numbering, recovered from the source text.
4. Assailing the orders aforesaid, the learned counsel for the appellant has strenuously argued that the High Court has approached the case from an altogether wrong angle while observing that the appellant has been awarded 45 years of imprisonment though the sentences were ordered to run concurrently by the Trial Court and hence, the maximum period of imprisonment is 7 years apart from certain default stipulations, which would come in operation only if the fine is not paid. The learned counsel has further argued that the reference to the decision in Navjot Singh Sidhu (supra), was also misplaced because the appellant herein had only prayed for suspension of sentence and not for suspension of his conviction. According to the learned counsel, the prayer for suspension of sentence should be considered liberally and suspension ought not be denied unless there are exceptional circumstances; and there being no such exceptional reasons or circumstances in the present case, the prayer for suspension deserves to be granted. Per contra, the orders impugned are duly supported on behalf of the respondent with reference to the findings recorded against the appellant by the Trial Court.
5. Having heard learned counsel for the parties and on perusal of the record, we are inclined to allow these appeals and while setting aside the orders impugned, restore the applications seeking suspension of execution of sentence under Section 389 CrPC for consideration afresh by the High Court. 3 Extraction from p. 8 of the SLP paper-book
6. We feel it imperative to restore the applications for consideration afresh for the fundamental reason that the approach of the High Court in dealing with the applications made on behalf of the appellant under Section 389 CrPC had apparently been from a wrong angle and on two major misconceptions: One, that the High Court assumed as if the sentences awarded to the appellant for different offences are to run consecutively i.e., one after another and, while taking sum total of the sentences so awarded, the High Court has proceeded as if the accused appellant has been ordered to undergo imprisonment for a whopping 45 years. No great deal of discussion is required to say that such an assumption by the High Court had been fundamentally incorrect and the High Court, obviously, omitted to notice that the Trial Court had specifically ordered that all the sentences shall run concurrently. Secondly, the High Court has proceeded to refer to the principles governing the consideration of the prayer for suspension of the operation of the order of conviction, although the prayer in the present matter had only been for suspension of execution of sentence.
7. It is not far to seek that when the High Court assumed that the appellant is to serve 45 years in prison, its consideration of the prayer for suspension of execution of sentence took entirely different dimensions. The applications ought to have been considered while keeping in view the fact that with concurrent running of sentences, the maximum period for imprisonment envisaged by the order of the Trial Court is 7 years. Of course, there are default stipulations in the order of the Trial Court but in any case, and by any method of calculation, it cannot be said that the appellant has been ordered to serve out 45 years in prison. The length of imprisonment to be served under an impugned order of sentencing has obvious bearing on the consideration of the prayer for suspension of execution of sentence during the pendency of an appeal or revision; and when there had been fundamental error as regards such an over-bearing factor, the prayer of the appellant requires reconsideration after removal of this error.
8. In both the orders impugned, the High Court, apart from the aforesaid error about the length of imprisonment to be served by the appellant, has also proceeded on entirely irrelevant consideration with reference to the principles related with the prayer for suspension of the operation of the order of conviction that such a suspension could be N. RAMAMURTHY v. STATE BY C.B.I. A.C.B., BENGALURU [DINESH MAHESHWARI, J.] granted only in rare and exceptional cases and for special reason. With respect, the High Court appears to have missed out the fact that the prayer on behalf of the appellant had only been for suspension of execution of sentence and not for stay or suspension of the operation of the order of conviction. Hence, reference to the decision in Navjot Singh Siddhu (supra) had been obviously inapt on the facts and in the circumstances of the present case. In fact, in the other cited decision in K.C. Sareen v. CBI, Chandigarh: (2001) 6 SCC 584, this Court has indicated that ordinarily, the superior Court should suspend the sentence of imprisonment in the matters relating to the offence under the PC Act, unless the appeal could be heard soon after filing. This Court pointed out the subtle distinction in the proposition for suspension of an order of conviction on one hand and that for suspension of sentence on the other. This Court explained and laid down as under: “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 be 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.” 8.1. What we find from the impugned order dated 29.01.2019 is that, even after taking note of the principles aforesaid, the High Court has apparently missed out the substratum and has not applied the applicable legal principles to the case at hand.
9. We are not elaborating on the other grounds urged on behalf of the appellant for suspension of execution of substantive sentence of imprisonment, essentially for the reason that this prayer under Section 389 CrPC is to be adequately examined and considered by the High Court with reference to the record and all the surrounding factors; and, in the present case, when consideration of such a prayer is found vitiated for an erroneous approach, we are of the view that the High Court need to consider the prayer afresh.
10. It goes without saying that we have neither pronounced on the merits of the applications moved on behalf of the appellant seeking suspension of execution of sentence nor have made any observations relating to the merits of the appeal pending in the High Court and the entire matter is left open for consideration of the High Court in accordance with law.
11. Accordingly and in view of the above, these appeals are allowed to the extent and in the manner that the impugned orders dated 03.01.2019 and 29.01.2019 passed respectively in disposal of IA No. 1 of 2018 and IA No. 1 of 2019 in Criminal Appeal No. 2000 of 2018 by the High Court of Karnataka are set aside; and the said IA Nos. 1 of 2018 and 1 of 2019 are restored for consideration afresh. The matter being related with the prayer for suspension of execution of sentence during the pendency of appeal, we would request the High Court to take up and dispose of the said applications expeditiously, preferably within two weeks from today. Nidhi Jain Appeals disposed of. N. RAMAMURTHY v. STATE BY C.B.I. A.C.B., BENGALURU [DINESH MAHESHWARI, J.]