DEOKINANDAN PRASAD, J. - (1.) THIS application (I.A. No. 228 of 2003) has been filed under Section 389 (1) and (2) of the Code of Criminal Procedure on behalf of the appellant praying therein to stay the execution of sentence dated 23.12.2002, whereby and whereunder the appellant has been convicted under Section 120B/409 1PC and Section 5(2) Corresponding to Section 13(2) of the Prevention monaof Corruption Act and sentenced to undergo Rigorous Imprisonment for one year under Section 120B, IPC and two years under Section 409, IPC whereas rigorous imprisonment for two years under Section 5(2) of the Prevention of Corruption Act, 1948. He was also awarded a tine of Rs. 10,000/ - and in default three months simple imprisonment. However, sentences were ordered to run concurrently.
(2.) THE prosecution case in brief as stated that the accused S.R. Sharrna, Project Officer, Lapanga Colliery and Shri A.K. Mujoo, Superintendent of Mines, Lapanga Colliery, C.C.L. were parties to a criminal conspiracy alongwith others for misappropriation of coal weighing 53,354 M.T. which was produced in the Lapanga Colliery during the financial year 1985 -86. It is further alleged that in pursuance of the said criminal conspiracy both accused persons were personally responsible for the misappropriation of the said coal, which is a property of Government and on such information the stock of coal of Lapanga Colliery was physically verified by a team of the officers of C.C.L. on 1.10.1985. During the said verification, a shortage of 40,605.00 MT of coal was found between the book balance and the ground balance. On this report, a team of officers of Coal India also verified the stock on 1.11.1985 and a further shortage of 11,748.40 M.T. of coal was detected by them. The total shortage of coal on 1.11.1985 was found to be the tune of 52,354 MT worth value to the tune of Rs. 1,23,03190/ -. Accordingly the case was registered. The trial begun and after hearing both sides and considering the evidence on record, the Special Judge convicted the appellant, in the manner as stated above. Mr. Delip Jerath, the learned counsel appearing on behalf of the Appellant submitted that though earlier a petition was filed on behalf of the appellant for staying the conviction/sentence in this appeal, which was rejected by order dated 27.2.2003 but now the position has been changed as Chairman -cum -Managing Director, C.C.L. has issued a show cause calling upon the appellant as to why major penalty including dismissal from services as per Rule 27.1(ii) of C.D.A. Rules 1978 of C.I.L. should not be imposed on him in terms of Rule 34.1 of C.D.A. Rules. It is further submitted that the appellant has served the CCL for about 30 years having good reputation and if sentence is not stayed, the appellant will be put in dismissal from services.
(3.) ON the other hand, Mr. Rajesh Kumar, learned counsel appearing on behalf of the CBI contended before me that the application filed earlier by the appellant was already rejected after considering all the pros and cons as well and as the appellant has been already availing the opportunity of bail so the question of stay of sentence does not arise. The learned counsel also relied upon the case of K.C. Sareen v. CBI, Chandigrah 2001 Cr LJ 4234 (SC) and submitted that the suspension of order of conviction/sentence during the pendency of appeal is not permissible when a public servant who is directly involved and convicted of corruption charges. ;