AJIT KUMAR SATPATHY Vs. STATE OF ORISSA

JUDGEMENT

(1.) This is an application by convict-appellant invoking power of the Court under section 389(1) Cr. P.C. to direct opposite party not to take any coercive action against appellant till disposal of the application.

(2.) Convict appellants employee of the Orissa Forest Corporation Limited a Government Company. Appellant is thus, a public servant. Company has a Saw Mill where convict appellant was working as an Accounts Assistant. There was a Manager of the Saw Mill. Both the Manager and appellant were prosecuted under section 5(1)(c) of the Prevention of Corruption Act, 1947 punishable under section 5(2) of the Act read with section 34 I.P.C. and under sections 409/34 I.P.C., or having committed criminal misconduct in fraudulently and dishonestly misappropriating a sum of Rs. 13,846.84 paise from funds of the Company. Learned Special Judge (Vigilance) Sambalpur acquitted the Saw Mill Manager but convicted appellant sentencing him to undergo R.1. for three years on each count with a direction that the sentences arc to run concurrently. On conviction by judgment dated 26.7.1993, appellant was released on bail by the trial court till 16.8.1993 to enable him to obtain an order under section 389(1) Cr. P.C. as provided in section 389 (3) Cr. P.C. Appellant preferred appeal and applied for being released on bail. This Court by order dated 12.8.1993, rdeased the appellant on bail of Rs. 10,000/- with two sureties each for the like amount to the satisfaction of the Special Judge (Vigilance), Sambalpur. Thereafter; appellant received an office order dated 25.9.1993 of the Company appointing Enquiring Officer and Marshaling officer to proceed with the disciplinary proceeding against him initiated on 6.8.1990. Convict appellant has, therefore, prayed for directing the prosecutor not to take any coercive action till disposal of the criminal appeal invoking power of this Court under section 389 held with section 401, Cr. P.C.

(3.) Neither under section 389 Cr. P.C. nor under section 401 Cr. P.C. this Court can direct a disciplinary proceeding to be stayed, though this Court could have power under Article 226 ofthe Constitution of India to grant the relief if such power is invoked. Besides, said power can be exercised by a Division bench as per the Rules of the Court and not by a Single Judge. In a pending criminal appeal such power cannot be exercised. Therefore, the relief sought for is not available to appellant. However, power under section 389 Cr. P.C. having been invoked, this court has discretion to suspend the sentence or the impugned judgment in appeal in deserving cases.