Prem Singh Tamang (Golay) v. State Of Sikkim

Satish K. Agnihotri, C.J:— In the instant appeal, the appellant, Prem Singh Tamang (Golay) (A-1) along with Til Bahadur Gurung (A-2) (appellant in Crl. A. No. 02 of 2017) and three other accused persons No. 3, 4 and 5 were charge-sheeted for the offences committed under Sections 468/120B(2) of the Indian Penal Code, 1860 (for short, ‘IPC); Sections 420/120B(2) IPC; Sections 403/120B(2) IPC; Sections 409/120B(2) IPC and Sections 13(1)(d)(ii)/13(2) of the Prevention of Corruption Act, 1988 (for short ‘the PC Act, 1988’). The accused persons No. 3, 4 and 5 were charge-sheeted for the offence committed under the provisions of Sections 468/120B(2), Sections 420/120B(2) and Sections 403/120B(2) of the IPC.

2. The trial Court, after having examined the case from all angles, appreciated the evidence, witnesses produced by both the parties and also considering various documents, convicted the appellant and accused 3, 4 and 5 were acquitted of respective charges against them. The appellant was convicted under Section 13(2) read with Section 13(1)(d)(ii) of the PC Act, 1988 to undergo simple imprisonment for a period of one year and to pay a fine of Rs. 10,000/- (Rupees Ten Thousand) only. In default to pay the said amount of fine, he shall undergo further simple imprisonment for a period of six months. For the offence under Section 403 IPC, the appellant was sentenced to undergo simple imprisonment for a period of one year and for the offence under Section 120B(2) read with Sections 403/406 IPC, the appellant was sentenced to undergo simple imprisonment for a period of six months. The aforestated sentences were directed to run concurrently.

3. The fact in brief as projected by the prosecution was that the appellant/convict while holding the office as Cabinet Minister, Department of Animal Husbandry and Veterinary Services with Til Bahadur Gurung (appellant/convict in Crl. A. No. 02 of 2017), the then Managing Director, Sikkim Co-operative Milk Producers’ Union Ltd. have misappropriated the government funds and embezzled the same for personal benefits.

4. Mr. K.T Bhutia, learned Senior Counsel appearing for the appellant submits that the sentence awarded is for a limited period of one year and the appellant/convict was granted bail during pendency of the trial. The appellant/convict had not misused the liberty granted during the trial, thus, the sentence awarded be suspended during pendency of the appeal and the appellant be released on bail. In support of his contention, learned Senior Counsel had relied on certain observations made in Bhagwan Rama Shinde Gosai v. State of Gujarat: (1999) 4 SCC 421; Suresh Kumar v. State (NCT of Delhi): (2001) 10 SCC 338; Siddharth Jain v. State of (NCT) of Delhi: 2008 (1) OLR (SC) 833; Angana v. State of Rajasthan: (2009) 3 SCC 767; and Sunil Kumar v. Vipin Kumar: (2014) 8 SCC 868.

5. Per contra, Mr. J.B Pradhan, learned Public Prosecutor would contend that the period of sentence as well as the ground that the convict had not misused the liberty granted during the trial may not be the substantial consideration but the nature of offence and also the office the convict held while indulging into such a serious offence under the Prevention of Corruption Act be considered. In support of his arguments, he referred to the observations made in State Of Punjab v. Deepak Mattu.: (2007) 11 SCC 319 and Shiv Kumar v. State Of Nct Of Delhi: (2008) 17 SCC 122.

6. Heard learned counsel for the parties, perused documents and records appended thereto.

7. In Bhagwan Rama Shinde Gosai (supra) referred by the learned Senior Counsel appearing for the appellant, the appellants therein were convicted under Section 392 read with Section 397 and were sentenced to rigorous imprisonment for ten years. The High Court in appeal declined to suspend the sentence. The Supreme Court in appeal held as under:—

“3. When a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances. of course if there is any statutory restriction against suspension of sentence it is a different matter. Similarly, when the sentence is life imprisonment the consideration for suspension of sentence could be of a different approach. But if for any reason the sentence of a limited duration cannot be suspended every endeavour should be made to dispose of the appeal on merits more so when a motion for expeditious hearing of the appeal is made in such cases. Otherwise the very valuable right of appeal would be an exercise in futility by efflux of time. When the appellate court finds that due to practical reasons such appeals cannot be disposed of expeditiously the appellate court must bestow special concern in the matter of suspending the sentence. So as to make the appeal right, meaningful and effective. of course appellate courts can impose similar conditions when bail is granted.”

8. In Suresh Kumar (supra), the appellant therein were convicted for a period of three years. The High Court in appeal dismissed the application for suspension of sentence of imprisonment. The Supreme Court relying on the observations made in Bhagwan Rama Shinde Gosai (supra) allowed the appeal and ordered suspension of sentence of imprisonment.

9. In Angana (supra), the appellants were convicted under Section 326 read with 34 IPC, acquitted from all other charges, and several other accused were acquitted. The High Court rejected the application for suspension of sentence in appeal. The Supreme Court, in appeal preferred by the appellants/convicts therein, observed as under:—

“23. In the present case, the appellants were on bail during the pendency of the case before the Sessions Court. The Sessions Court has acquitted most of the accused persons after trial except the appellants. It is not the case of the other side, that, when the accused were on bail they had indulged themselves in any offence either under the provisions of the Penal Code or any other statute. It is also not the case of the prosecution that when the appellants were on bail they had either jumped the bail or were any way responsible for prolonging the proceedings before the Sessions Court, and it is also not the case of the other side that they would abscond and would not be available, to undergo the sentence if the appellate court affirms the order passed by the Sessions Court.”

10. In Sunil Kumar (supra), the appellant therein was convicted under Sections 302 and 307 read with Section 34 IPC and also for the offence under Sections 4 and 25 of the Arms Act and sentenced to to undergo various terms of imprisonment. The High Court declined to grant suspension of sentence. However, in appeal, the Supreme Court granted bail under Section 389 Cr. P.C The Supreme Court held as under:—

“13. We have heard the rival legal contentions raised by both the parties. We are of the opinion that the High Court has rightly applied its discretionary power under Section 389 Cr. P.C to enlarge the respondents on bail.

Firstly, both the criminal appeal and criminal revision filed by both the parties are pending before the High Court which means that the convictions of the respondents are not confirmed by the appellate court.

Secondly, it is an admitted fact that the respondents had been granted bail earlier and they did not misuse the liberty. Also, the respondents had conceded to the occurrence of the incident though with a different version.”

11. In State Of Punjab v. Deepak Mattu. (supra), cited by the learned Public Prosecutor, wherein the respondent therein was convicted under the provisions of Prevention of Corruption Act, 1988 and sentenced to 18 months rigorous imprisonment with a fine of Rs. 1000/-. In appeal, the High Court granted suspension of conviction. Thereagainst, an appeal was preferred by the State, the Supreme Court, considering all aspects of the matter, held as under:—

“6. An order of suspension of conviction admittedly is not to be readily granted. The High Court in its order dated 11-1-2005 passed a judgment irrespective of conviction and sentence, only on two grounds:

(i) A long time may be taken to decide the appeal.

(ii) There are good points to argue.

7. While passing the said order, the High Court did not assign any special reasons. Possible delay in disposal of the appeal and that there are arguable points by itself may not be sufficient to grant suspension of a sentence. The High Court while passing the said order merely noticed some points which could be raised in the appeal. The grounds so taken do not suggest that the respondent was proceeded against by the State, mala fide or in any bad faith.”

12. In Shiv Kumar (supra), cited by the learned Public Prosecutor, the appellant therein was convicted under the provisions of the Prevention of Corruption Act, 1988 and sentenced to three years imprisonment. The High Court rejected the application for suspension of sentence and the Supreme Court in appeal observed as under:

“7. This Court has observed in several cases that where the accused is convicted for offence punishable under the Act, it would not be prudent and desirable to give protection under Section 389 of “the Code”. However, taking into account the peculiar circumstances of the case we request the High Court to dispose of the appeal as early as practicable.”

13. Analyzing the aforestated observations made by the Supreme Court in facts of particular case laid down the principle of law that the High Court while exercising power of discretion under Section 389 Cr. P.C is required to examine various factors, the nature of offence, period of sentence and also whether the liberty granted during the trial was misused by the appellant/convict.

14. Having considered all aspects of the matter, particularly, the fact that the allegations are very serious in nature, the appellant/convict was occupying the high office, allegedly indulged into misuse and misappropriation of the government funds as held by the trial Court. However, without going into the merit of the case and also having considered the fact that the appellant is not holding the office presently, thus, there is no apprehension that he may misuse the office. Further, the appellant/convict was granted bail earlier and there is no complaint of any misuse of the liberty granted to him. It is also not the submission of the prosecution that the appellant/convict had interfered with the trial or he had tried to influence the witnesses by misusing his office and liberty granted during trial. Further, the other accused persons 3, 4 and 5 tried along with the appellant/convict were acquitted of the charges.

15. Consequently, I am of the considered view that the sentence imposed on the appellant/convict be suspended till disposal of the appeal and the appellant be enlarged on bail on the same conditions as imposed by the learned trial Court on submission of necessary bonds before the learned Special Judge (PC Act) Sikkim at Gangtok.