SHRIMAL, J. - (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. The petitioner filed an appeal against the order of his conviction, dated November 15, 1977, before this Court. The appeal was admitted and the sentence awarded to the accused was suspended: vide order, dated December 14, 1977 and the petitioner was ordered to be released on bail on furnishing a personal bond in a sum of Rs. 5 000/- and a surety in the like amount to the satisfaction of the Special Judge, Anti Corruption Cases, Rajasthan, Jaipur, for his appearance in this Court on January 16,1978 and on subsequent dates fixed for hearing. The petitioner made representations requesting the authorities to withdraw the order of dismissal but as the concerned authorities refused to oblige him, the petitioner was constrained to file that writ petition No. 1484 of 1980, out of which the present Special Appeal arises. As usual the State Government failed to file reply to the writ petition upto August 10, 1981 i. e. the date on with the case was heard and decided by the learned Single Judge. Placing reliance on a few judgments of this court and the judgment of the Punjab High Court, the learned Single Judge held that proceedings of dismissal could not have been taken on the ground of conviction ordered by the trial court in case where the appeal was pending. On the basis of the above finding the learned Single Judge allowed the writ petition and quashed the order of dismissal and gave liberty to the concerned authorities to other keep the petitioner under suspension or allow him to work as Sub-Inspector. Aggrieved by the above order, the State Government has come in Special Appeal. The main contention of the learned counsel appearing on behalf of the State Government, is that filing of an appeal or revision dose not have the effect of effecting the judgment of conviction. The filing of appeal or revision may put the impugned order or judgment in jeopardy but unless and until it is reversed or modified, it remains effective. Simply because sentence awarded to an accused is suspended by the appellate court in a criminal case, it cannot be said that the order of conviction stands effaced or obliterated and the delinquent officer is as a matter of right entitled to be reinstated on his post. The order of conviction stands in force till it is set aside. When once it is set aside, the acquittal operates retrospectively. As such it would not be correct to say that the proviso to Article 311 (2) (a) is not applicable to cases in which appeals, filed by delinquent officers, are pending. Learned counsel for the respondent has supported the judgment of the learned Single Judge. He contends that as the petitioner was dismissed on the ground of conduct which led to his conviction by the trial court on a criminal charge, his dismissal could not be maintained until it becomes final. By the word 'conviction' appearing in Article 311 of the Constitution, it is meant that the conviction which ultimately takes place after termination of all legal proceedings arising out of trial. The appeal is in continuation of the trial and the correct interpretation of the word "led to his conviction on a criminal charge" would mean final conviction. Reliance in this connection was placed on Purshottam Singh vs. The Union of India (1 , and D. B. Special Appeal No. 191 of 1980 decided on February 28, 1980.
(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. A Division Bench of this Court in Union of India vs. Shri B. D. Raghuvanshi (D. B. Special Appeal No. 191 of 1981 decided on September 28, 1981) placed reliance on Purshottam Singh vs. Union of India (supra ). A perusal of the judgment shows that though the learned Judge, while deciding that case made reference to a number of decisions, yet in fact the decision of that case turned upon the fact that the judgment of the learned Magistrate, dated November 18, 1978, convicted the delinquent officer Purshottam Singh. That case was reversed in appeal filed by the accused. He was acquitted on January 14, 1980. Prior to the decision of writ petition by the Single Bench, on January 21, 1980, his acquittal had the affect of completely wiping out the conviction or dismissal based on conviction. That case stood squarely covered by the ratio decidendi of the Supreme Court case, in Manni Lal vs. Permai Lal (3) Reference to the decision of Gopal Singh's case is obiter dicta. Kunwar Bahadur vs. Union of India (4) is a full bench case. Ratio decidendi of that case has been aptl summarised in the head Note-A, which reads as under : ''constitution of India, Art. 311 (2) Proviso (a) "conduct leading to conviction" Removal from service on ground of conviction on criminal charge-Conviction set aside in appeal-Government not entitled to benefit of subclause (a) of proviso-Claim of departmental enquiry under Art, 311 (2) is justified. " Paragraph 31 of the case reads as under: - "so long as a conviction remains liable to be set aside it cannot be said to be determinate in its nature and its legal consequences whether the conviction is already in question before a superior court or not. The Sate of things created thereby is liable to change and, naturally, an order of dismissal which seeks to justify its non-compliance with the requirement of Article 311 (2) on the basis of such a conviction stands upon an insecure foundation. The order cannot have a higher validity that the conviction from which it derives its precarious justification and it must remain subject to the ultimate shape which is given to the state of things by the order of the superior court before which the conviction is challenged. If the conviction is set aside, the state of things is made to undergo a setting aside of the conviction but from the date of the conviction itself. Indeed a finding of guilt recorded against a person cannot be said to have been effectively set aside if the reversal and setting aside were to operate only from the date when the order to that effect is made and the person concerned were to be, even there-after, regarded as having remained guilty & convicted till then. Such an order, whenever it may come to be made, has the effect of wiping out the finding of guilt and the conviction altogether. Whenever a person was entitled to the safeguard provided by Art. 311 (2) and whether he has had the benefit of that safeguard are justiciable matters and it should, therefore, follow that when a court is called upon to decide these matters it has to see whether, in the light of the final outcome of the original proceeding in respect of the conduct for which the said person was dismissed, it can be said that the proceeding had led to his conviction. If it is found that the conviction was subsequently set aside, it must, in my opinion, be held that at no point of time was the person concerned a person whose conduct, in the ground on which he was dismissed from service, had led to his conviction". The ratio decidendi of the case is that the order of dismissal based on the judgment of conviction always remains intact subject to ultimate decision of the court. If it is found that the conviction is sub equently set aside, it would be considered that at no point of time the conduct of the person concerned, has led to has conviction. The earlier decisions of the Allahabad High Court are required to be read in the light of the decision of the Full Bench, noted above. No where in the Full Bench case, it has been held that the conviction contemplated under s. 311 (2) is not conviction by the first court but conviction by the last court. In Vidya Charan Shukla v. Purshottam Lal Kaushik (5), the question regarding the disqualification of a candidate on the date of nomination and the date of declaration of the result of election came up for consideration. Their Lordships of the Supreme Court extensively quoted the observation made by the Bench presided over by Hon'ble J. C. Shah, J (as he then was) in Manni Lal vs. Parmai Lal (supra) : ". . . . . . . . it is clear that though the conviction of respondent I was recorded by the trial Court on January 11, 1969, he was acquitted on September 30, 1969 in appeal which acquittal had the effect of completely wiping out the conviction. The appeal having once been allowed, it has to be held that the conviction and sentence were vacated with effect from the date on which the conviction was recorded and the sentence awarded. In a criminal case, acquittal in appeal does not take effect merely from the date of the appellate order setting aside the conviction, it has the effect of retrospectively wiping out the conviction and the sentence awarded by the lower court. This disqualification relied upon by the appellant was laid under Section 8 (2) of the Act read with Article 102 (l) (d)of the Constitution. The provision is that a person convicted by a court in India for any offence and sentenced to imprisonment for not less than two years shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of five years since his release. The argument on behalf of the appellant was that, though respondent 1 was not disqualified at the time of filing of nomination, he was, in fact, disqualified on February 9, 1969, when the result was declared. . . . . This argument overlooks the fact that an appellate order of acquittal takes effect retrospectively and the conviction and sentence are deemed to be set aside with effect from the date they were recorded. Once an order of acquittal has been made, it has to be held that the conviction has been wiped out and did not exist at all. The disqualification, which existed on February 9 or 11, 1969 as a fact, was wiped out when the conviction recorded on January 11, 1969 was set aside and that acquittal took effect from that very date. It is significant that the High Court under Section 100 (1) (a) of the Act, is to declare the election of a returned candidate to be void if the High Court is of opinion that on the date of his election, a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or the Act. It is true that the opinion has to be formed as to whether the successful candidate was disqualified on the date of his election, but this opinion is to be formed by the High Court at the time of pronouncing the judgment in the election petition. In this case, the High Court proceeded to pronounce the judgment on October 27,1969. The High Court had before it the order of acquittal which had taken effect retrospectively from January 11, 1969. It was therefore, impossible for the High Court to arrive at the opinion that on February 9 or 11, 1969 respondent was disqualified. The conviction and sentence had been retrospectively wiped out, so that the opinion required to be formed by the High Court to declare the election void could not be formed. The situation is similar to the one that could have come into existence if Parliament itself had chosen to repeal Section 8 (2) of the Act retrospectively with effect from January 11, 1969. " ;