MEMORANDUM OF CRIMINAL MISCELLANEOUS PETITOIN (Under Section 389(1) read with section 482 of Criminal Procedure Code.

1973) IN THE HIGH COURT OF JUDICATURE AT MADRAS Crl.M.P.No. IN C.A.No. 1. R.Krishnamoorthy, aged 60 years S/o.R.P.Ramasamy Ret Forest Ranger, Harur Division 2. G.Sivaprakasam, aged 55 years S/o.P.Gurusamy, Forest Guard, Shervoroys North Range, Pappeireddipatti 3. D.Mariappan, aged 60 years S/o.Doraisamy, Ret Forester Forest Protection Force Salem 4. G.Palanisamy aged 53 years S/o.Gopal Forester Pennagaram Range, Charmapuri division 5. G.Ramalingam aged 60 years Ret Forest Guard, Santhyamangalam Range, Sathyamangalam Division 6. K.Kannaiyan aged 55 years S/o.Bomma Naicker Forest Guard, Forest Protection force, Salem 7. K.Gunasekaran aged 55 years S/o.Kandasamy Gounder Forest Guard, Forest Protection force, Salem 8. P.Balasubramaniam aged 56 years S/o.Perumal Forest Guard, Rasipuram Range, Salem Division, 9. K. David aged 56 years Forest Guard, Rasipuram Range, Salem Division, 10. C.Manickam aged 57 years S/o.Chinnasamy Forest Guard Dharmapuri Division 11. Shanmugam aged 60 years S/o. Sevi Forest Guard, Shervarayan South Range, Salem Division 12. V.Madhu aged 55 years S/o.Vayapuri Forest Watcher, Pennagaram Range
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of 2011 of 2011

13. P.Mohan aged 56 years S/o.Palaniappan Forest Watcher, Shervarayan South Range, Salem Division Petitioners/Appellants VERSUS State of Tamilnadu Represented by Deputy Superintendent of Police, CBI/SEP Madras.(Cr. No.RC.3/(S)of 1995) Respondent/Respondent PETITION FOR STAY OF CONVICTION ********* The above named Petitioners humbly state as follows: 1. The Petitioners state that they were convicted for alleged offences under section 147, 342 r/w 149, 355, 323, IPC and section 3(2)(iii), 3(1) (v) and 3(1)(X) of prevention of atrocities on SC and ST Act by the Learned Principal Sessions Judge, Dharmapuri in S.C.No.1 of 2008 on 29-9-2011 imposing a maximum sentence. 2. and The petitioners state that they had paid the fine amount the trial court had suspended the sentence and this sentence of 3 years and also fine with default

Honble court by order dated 11-10-2011 was also pleased to suspend the sentence of imprisonment in MP No.1 of 2011 in the above criminal appeal pending disposal of the above appeal. 3. are The petitioners state that the Petitioners 1, 3, 5 and 11 retired government servants and the rest of the

petitioners 2, 4, 6, 8 to 10, 12 and 13 are the government servants who are still in the government service. 4. The petitioners state that as of the order of conviction

in S.C.No.1 of 2008 dated 29-9-2011, the concerned authorities of the government are initiating steps for departmental and disciplinary proceedings against the petitioners and others. The same would result in either dismissing the petitioners or suspending the petitioners from service, or depriving the retired persons of their pensionary benefits. 5. The petitioners state that of their advanced age, they

are solely dependent on their salary and pension respectively

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for their lively hood and medical expenses. If the government takes action based on the conviction passed in S.C No.1 of 2008 which is the subject matter of the above appeal, which had not attained finality, the petitioners would be put to irreparable loss, hardship and great prejudice since the sufferings undergone by them on account conviction cannot be undone. Further, if the disposal of appeal takes several years in which case, some of the petitioners would not be alive to reap the benefit of the final verdict in the appeal. petitioners have a good case. 6. The petitioners further state that The Learned District The

Judge has decided the whole issue on inadmissible evidence that has resulted in deviation of procedural fairness whereby the said deviation has caused miscarriage of justice. Further the proper sanction under section 197 of the code of criminal procedure has not been obtained; the court which tried the offence is not the competent court which has been notified to try CBI cases. Hence the conviction is unsustainable. 7. are In the case of Shaughnessy v. United States, 345 US 206 of the indispensable can be essence if of they liberty. are Severe and

(1953) JACKSON J. said: Procedural fairness and regularity substantive laws endured fairly

impartially applied, which was a case before the United States Supreme Court. 8. The said judgement of the USA has been quoted by this Court by in its the 528 in case Sipcot of The Management Complex, of FAL Limited, others Industrial Hosur&

Honourable Industries 635126, Versus and

rep.

Sr. Manager Legal & Company Secretary W.P.11564/2006, W.P.11565/2006

W.P.11566/2006 when it quotes the judgement of our Honourable Apex Court the case of, State of U.P. v. Saroj Kumar Sinha, reported in (2010) 2 SCC 772. 9. The Learned District judge has found these petitioners on alleged evidences which are non-existent,

guilty
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extraneous, that makes the reasoning of finding that these petitioners as guilty is blundered' or reached perverse, palpably wrong, totally the conclusion, 'wholly wrong', ill-founded or wholly misconceived; the Court had 'obstinately 'manifestly erroneous' or 'demonstrably unsustainable', which resulted in miscarriage of justice. Thus the grounds of appeal may be read as a part and parcel of this petition. 10. The golden of thread which runs through the web of

administration

justice in criminal case is that if two

views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is avoided. 11. It is a well settled law that the trial of public

servants should always begin with sanction.

In the present

case there is a specific offence under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, which is only in respect of public servants whereby the cognizance without sanction and the trial without sanction vitiates the trial which is well laid legal principle. On the basis of such trial alone these petitioners are facing this appeal. 12. of Thus when these petitioners being government servants the their government Supreme SCC 1364 jobs which of they in are Dy. serving. Director The of

stay of sentence if not ordered, it would result in suspension Honourable AIR 1995 Court India

Collegiate Education [Admn.] Vs. S. Nagoor Meeran reported in their Lordships, JEEVAN REDDY, B.P. (J) PARIPOORNAN, K.S.(J) quoting an earlier judgement have held:-

In Rama Narang v. Ramesh Narang (1995 (1) J.T. 515) at pages 524 and 525, the position under Section 389 is stated thus: "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
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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' inSection 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 suspended, can be which are capable of execution and which if not required in the to be executed it may by incur the a would be

authorities...... certain situations the order of conviction executable, sense, 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 die consequence that is likely to fall to enable it to to the apply be its mind by not to it the in issue since under the Section 389(1) it is under an obligation to support its order 'for reasons of recorded is writing'. to this If attention Court invited 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 to made to the on Court the pointing out of the the consequences likely fall continuance

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." This petition is made to draw such attention of this Honourable Court. 13. In the above cited judgment, namely, Dy. Director of Education being the [Admn.] Vs. S. Nagoor Meeran mater the is government servant the

Collegiate respondent

applicable to this case also.

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14. and

These petitioners are all ready facing the criminal case if the stay of the operation of the sentence if not

ordered it would result in irreversible damage not alone to them but also to their family members who cannot be allowed to be penalized. In the case of Rama Narang Vs. Ramesh Narang and Ors. reported in {1995)2 SCC 513} their Lordships were examining the effect of conviction under the Companies Act, 1956, that what is the effect of the conviction of Managing Director for an offence involving of moral turpitude by as the disqualification and suspension that conviction

appellate court. The Court after examining the question took the view that Section 389(1) of the CR.P.C., confers the power on appellate Court to stay the operation of the order of the conviction. If the order of conviction is to result to some disqualification of the type mentioned in Section 267 of the Companies act, a narrow meaning should not be given to Section 389(1) of the Code to bar the Court from granting an order staying of the operation Code of order the of conviction in a to fit stay case. the Therefore, their Lordships were very clear that Section 389(1) empowers appellate court conviction also. In the said case as it had been held that mere suspension will not amount to staying the conviction. It was held in that case as under: That takes us to the question whether the scope of Section 389(1) of the Code extends to conferring power on the Appellate Court to stay the operation of the order of conviction. As stated earlier, if the order of conviction is to result in some disqualification of the type mentioned in section 267 of the Companies Act, we see no reason why we should give a narrow meaning to Section 389(1) of the Code to debar the court from granting an order to that effect in a fit case. The appeal under Section 374 is essentially against the order of conviction because the order of sentence is merely consequential thereto; albeit even the order of sentence can be independently challenged if it is harsh the and disproportionate the appeal is to the both established the guilt. and Therefore, when an appeal is preferred under Section 374 of Code against conviction sentence and therefore, we see no reason to place a narrow
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interpretation on Section 389(1) of the Code not to extend it to an order of conviction, although that issue in the instant case recedes to the background because High Courts can exercise inherent jurisdiction under Section 482 of the Code if the power was not to be found in Section 389(1) of the Code. that We the are, therefore, of the opinion that the Division High Court 482 the could of not the have Code of if exercised it order was of Bench of the High Court of Bombay was not right in holding Delhi under for jurisdiction in the Code Section staying

confronted with a situation of there being no other provision operation the conviction. In a fit case if the High Court feels satisfied that the order of conviction needs to be suspended or stayed so that the convicted person does not suffer from a certain disqualification provided for in any other statute, it may exercise the power because otherwise the damage done cannot be undone; the disqualification incurred by Section 267 of the Companies subsequent Appellate Act and if But given the effect to cannot is a be undone aside of by (sic at a date Court. conviction granting set stay the or)

while

suspension of the order of conviction the Court must examine the pros and cons and if it feels satisfied that a case is made out for grant of such an order, it may do so and in so doing it may, as if are it considers it appropriate, impose such appropriate to protect the conditions considered

interest of the shareholders and the business of the company." 15. In the present case also as the protection that is being

given to the share holders of the company as noted by the Honourable Apex court in the said judgement such a protection is also applicable to the family members of the petitioners. Hence, the judgement cited supra is squarely applicable to these petitioners case. 16. In the case of Ravikant S. Patil Vs. Sarvabhouma S.

Bagali reported in {2006(12) SCALE 295} it has been clearly held that the Court has enough power to stay the conviction. It was held as under:- "it deserves to be clarified that an
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order granting stay of conviction is not the rule but is an exception to be resorted to in rare cases depending upon the facts of a case. Where the execution of the sentence is stayed, the conviction continues to operate. But where the conviction itself is stayed, the effect is that the conviction will not be operative from the date of stay. An order of stay, of course, does not render the conviction non-existent, but only non-operative. Be that as it may, insofar as the present case is concerned, stay of if an application order of was not was filed specifically that the the that is, seeking appellant the conviction stayed, to specifying contest

consequences

conviction incur

would

disqualification

election. The High Court after considering the special reason, granted the order staying the conviction. As the conviction itself is stayed in contrast to a stay of execution of the sentence, it is not possible to accept the contention of the respondent that the disqualification arising out of conviction continues to operate even after stay of conviction." 17. In the case of Navjot Singh Sidhu Vs. State of Punjab

reported in {JT 2007 (2) SC 382), Hon'ble Apex Court while entertaining the appeal of accused stayed the conviction. The relevant portion of the judgment reads as under: "13.1 The Act provides not only the eligibility and qualification for membership of House of People and Legislative Assembly but also for disqualification on conviction and other matters. The Parliament in its wisdom having made a specific provision for disqualification on conviction by enacting Section 8, it is not for the Court to abridge or expand the same. The decisions of this Court rendered in Rama Narang V. Kant S. Patil Vs. Sarvabhouma S. Bagali (Supra) having recognized the power possessed by the Court of appeal to suspend or stay an order of the conviction and having also laid down the parameters for exercise of such power, it is not possible to hold, as a matter of rule, or to lay down, that in order to prevent any person who has or should committed not be an offence Assembly from the The entering order of have the the to Parliament conviction
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the

Legislative

suspended.

Courts

interpret the law as it stands and not on considerations which may be perceived this Court that to Court has be morally recent to more stay will order the correct the not of stay or ethical." that of as of of the the a the the Therefore, appellate then in in power decisions held

execution operate

conviction and if appellate Court has stayed the conviction case, But this simply that disqualification. specifically suspension of order

sentence will not operate as staying the conviction. It was mentioned conviction will mean it is temporarily non-operative. 18. In Ravikant S. Patil vs Sarvabhouma S. Bagali (2007) 1

SCC, 673 a three member bench consisting of C K THAKKER, R V RAVEENDRAN, Y K SABHARWAL have also held that the appellate court has power to stay the order of conviction. All these decisions, have while recognising and the power to stay power conviction, should be cautioned clarified that such

exercised only in exceptional circumstances where failure to stay the conviction, would lead to injustice and irreversible consequences. 19. In the case of State of Maharashtra Vs. Gajanan & Anr.

[2003] 12 SCC 432, it was concluded that [para 12.5 of the report]. "All these decisions, while recognising the power to stay conviction, have cautioned and clarified that such power should be exercised only in exceptional circumstances where failure to stay the conviction, would lead to injustice and irreversible consequences." The Court also observed as "11. It deserves to is be clarified the that but an it order is an granting stay to of be conviction not rule exception

resorted to in rare cases depending upon the facts of a case. Where the execution of the sentence is stayed, the conviction continuous to operate. But where the conviction is stayed, the effect is that the conviction will not be operative from the date of stay. An order of stay, of course, does not render the conviction nonexistent, but only nonoperative ................."

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10

20. The legal position is, therefore, clear that an appellate Court can suspend or grant stay of order of conviction. But the person seeking stay of conviction should specifically draw the attention of the appellate Court to the consequences that may arise if the conviction is not stayed. Unless the attention of the Court is drawn to the specific consequences that would follow on account of the conviction, the person convicted cannot obtain an order of stay of conviction. made. 21. Further, grant of stay of conviction can be resorted to As stated supra for this specific purpose alone this petition is

in rare cases depending upon the special facts of the case. 22. (SC) and In Lalsai Khunte vs Nirmal Sinha & Ors (2007) 8 MLJ 907 it not has a been of held that "If in an the elected candidate on

conviction, obtained only an order of suspension of sentence stay conviction appellate Court, the of disqualification will subsist, under the Representation

People Act, 1951 entailing setting aside of the election. In present case only an order of suspension of sentence had been granted continue and as not being a stay it will disqualify becomes one them of to the government servant which

foremost criteria to apply for the stay of the sentence. In Rama Narang vs Ramesh Narang 1995 SCC (2) 513 a three member bench consisting of His Lordships AHMADI A.M. (CJ) SAHAI, R.M. (J) REDDY, K. JAYACHANDRA (J) have held Under Section 374(2) of the Code any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge may appeal to the High Court. Section 384 provides for summary dismissal of appeal if the Appellate Court does not find sufficient ground to entertain the appeal. If, however, the appeal is not summarily dismissed, the Court must cause notice to issue as to the time and place at which such appeal will be heard. 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
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11

'Order' in Section 389(1) mean order of conviction or an order similar to the one under Sections 357 or 360 of the Code? Obviously the order referred to in Section 389(1) must be an order capable of 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. Since the order of conviction does not on the mere filing of an appeal disappear it is difficult to accept the submission that Section 267 of the 'Companies Act must be read to apply only to a 'final' order of conviction. Such an interpretation may defeat the very object and purpose for which it came to be enacted. It is, therefore, fallacious to contend that on the admission of the appeal by the Delhi High Court the order of conviction had ceased to exist. If that be so why seek a stay or suspension of the Order. 23. In State of Punjab v Navraj Singh 2008 INDLAW SC 1075

HON'BLE JUSTICE DR. ARIJIT PASAYAT 14 Jul 2008 and In Central Bureau of Investigation, New Delhi v M.N. Sharma 2008 INDLAW SC 1140 dated 21 Jul 2008 HON'BLE JUSTICE DR. ARIJIT PASAYAT has observed as noted hereunder: In State of Maharashtra v. Gajanan follows: and Another 2003 Indlaw the SC 1188, it was as noted also as the Having perused impugned order

judgment of this Court in K.C. Sareen's case 2001 Indlaw SC 20745 we find the High Court had no room for distinguishing the law laid down by this Court in K.C. Sareen case supra even on facts. This Court in the said case held: (SCC p. 589, para 11) "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
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12

position

when

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 as a of the appeal. But suspension of conviction of the is a different matter." * (emphasis offence under the PC Act, dehors the sentence of imprisonment sequel thereto, supplied) In the said judgment of K.C. Sareen's case (supra) this Court has held that it is only in very exceptional cases that the court should exercise such power of stay in matters arising out of the Act. The High Court has in the impugned order nowhere pointed out what is the exceptional fact which in its opinion required it to stay the conviction. The High Court also failed to note the direction of this Court that it has a duty to look at all aspects including ramification of keeping such conviction in abeyance. The High Court, in our opinion, has not taken into consideration any of the above factors while staying the conviction. It should also be noted that the view expressed by this Court in K.C. Sareen case (supra) was subsequently approved followed by the judgment of this Court in Union of India v. Atar Singh 2003 (12) SCC 434. 24. In Union of India v. Avtar Singh & Anr. 2003 (12) SCC 434

it was held as follows: "This appeal is directed against the impugned order of the High Court. The respondent- accused, who has been convicted under Section 409 Indian Penal Code, 1860 and Section 13 OF THE Prevention of Corruption Act, preferred an appeal to the High Court, which has been entertained. On an application Criminal conviction being filed the under High of Section Court the 389 has of the Code of the Procedure, may entail suspended

conviction solely on the ground that the non- suspension of removal delinquent government servant from service."

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13

25.

As held in K.C. Sareen's case, as the effect of finding

these petitioners guilty which have been challenged in the appeal if the stay of sentence is not granted the damage and the seriousness of the damage which cannot be undone has been state supra. As the finding of conviction of these petitioners being not connected with prevention of corruption act where in reality when these petitioners who were doing their discharge of their official duties which has resulted in protection of huge sums of money by recovering the forest wealth, namely sandal wood which has been entrusted to the government makes out a special case of stay of sentence is the humble submission. The Petitioners state that the order of conviction is unsustainable in law and on facts. The materials relied on by the trial court for convicting the petitioners is not relevant and based on surmises and conjectures. The grounds raised in the memorandum of grounds may be treated as part and parcel of the above petition. As stated in the memorandum of Grounds, the materials available before the trial court does not attract the ingredients of the offences convicted. The petitioners have a fair chance of success in the appeal and would be put to great prejudice if the order of conviction is not stayed. Prayer For the foregoing reasons it is prayed that this Honble Court may be pleased to stay the order of conviction passed by the learned Principal Sessions Judge Dharmapuri in S.C.No.1 of 2008 dated 29-9-2011 pending the disposal of the above Criminal Appeal and thus render justice. Dated at Chennai this the 2nd day of, October 2011.

Counsel for Petitioner.

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