STATE OF RAJASTHAN Vs. KEDAR NATH

JUDGEMENT

(1.) THIS Special Appeal under Sec. 18 of the Rajasthan High Court Ordinance, 1949, is directed against the order, dated August 10, 1981, of the learned Single judge of this Court, delivered in S. B. Civil Writ Petition No. 1484 of 1980, whereby he allowed the writ petition and quashed the order of dismissal, dated December 27, 1977, passed by the Deputy Inspector General of Police, Jaipur Raing, Jaipur and communicated to the petitioner by the District Superintendent of Police, Alwar, vide letter, dated December 31, 1977.

(2.) TERSELY speaking the facts in nut-shell are that the petitioner was caught red-handed while taking a bribe of Rs. 100/- by the Anti Corruption Department, Jaipur. On trial he was found guilty and was convicted vide Judgment, dated November 15, 1977 and was sentenced to suffer one year's rigorous imprisonment The Deputy Inspector General of Police held that the conduct of the petitioner was such as to render his further retention in public service undesirable and he was dismissed from service with effect from November 15, 1977 vide order, dated December 17, 1977.

(3.) WE have given earnest consideration to the rival contentions raised by the parties. Under the provisions of the Code of Criminal Procedure 1973 (Act No 2 of 1974), there are two stages after closing of the evidence by the parties. They are: (a) after taking evidence and hearing arguments, the Judge is required to give judgment in the case and if the Judge finds the accused guilty, he convicts him, and (b) thereafter unless he proceeds in accordance with the provisions of sec. 360. Cr. P. C he is required to hear the accused on the -question of sentence and then pass sentence on him according to law. The obligation to hear the accused on a question of sentence is not discharged by putting a formal question as to what he has to say in the matter. The Judge is required to make a genuine effort to elicit from the accused all informations which will eventually bear on the question of sentence. Code of Criminal Procedure, 1973 enjoins on the court that after a judgment of conviction the court should stay its hands and hear the accused on the question of sentence, before passing the sentence in accordance "with law. It obviously postulates that the accused must be given an opportunity to make his representation only regarding the question of sentence and for this purpose he may be allowed to place such material as he may think fit, but which may have bearing only on the question of sentence Thus the words "conviction" and "sentence" have two different meanings and connote two different stages of trial. Section 339, Cr. P. C, provides that pending an appeal by a convicted person, the appellate court may, for reasons to be recorded by it in writing, order that the execution of sentence or order appealed against be suspended and also if he is in confinement, he be released on bail. Thus, the power vested on the appellate court pertains to suspension of sentence and not suspension of the order of conviction. The Legislature in its wisdom has only provided for suspension of the sentence and not for suspension of judgment of conviction. To hold that as soon as appeal is filed and the accused is released on bail, the judgment of conviction stands suspended would amount to misinterpretation of the words in sec. 389, Cr. P. C. In our opinion, this is not permissible because to do so would be to incorporate another clause in the first part of Section 589, Cr. P. C, 1973. In State of U. P. vs. Mohammed Nooh (2), their Lordships of the Supreme Court read with approval the following observations made by the Privy Council: "there is nothing in the Indian Law to warrant the suggestion that the decree or order of the court or Tribunal of the first instance becomes final only on the termination of all proceeding by way of appeal or revision. The filing of the appeal or revision may put the decree or order in jeopardy but until it is reversed or modified it remains effective. " The above case was cited before the Division Bench in Union of India vs. General Manager, but it was not considered in detail and the Division Bench only observed that those observations were made in the matter which arises out of a civil suit and as such were not of much significance. Article 141 of the Constitution of India provides that the law declared by the Supreme Court shall be binding on all courts within the territory of India. The ratio decidendi of a decision whether given in a civil case or criminal case is always binding. Even the obiter dicta observations on a legal question are binding. In view of the above position of law, we are of the opinion that filing of appeal or revision may put the judgment of conviction in jeopardy but until it is reversed or modified, it remains effective.