Departure from reasoning in reasoned order by Supreme Court of India: Analysis of Suspension of Sentence vis-a-vis corruption matters in relation to public servants
The present article discusses the rationale behind the difference in parameters of Section 389 Criminal Procedure Code (Cr.P.C.) suspension of sentence and regular and anticipatory bail. It also notes the stringent attitude of the Supreme Court in dealing with Corruption matters and public servants and the law as has been developed in this regard. The practical application of suspension of sentence in a case of a corruption matter has been analysed with reference to the recent, much publicized, ‘bail’case/matter of Jayalalitha&Ors.
For this purpose the COMMON ORDER ON I.A.NO.1/2014 IN CRL.A.NOS. 835, 836, 837 & 838 OF 2014 dated 07-10-2014 (Jayalalitha & Ors. Applications before the Karnataka Court) and the order of the Supreme Court of India dated 17.10.2014 are elaborated. The premise of this article is that while the Karnataka High Court has applied all the principles as enunciated by the Supreme Court of India, with regard to Section 389 Cr.P.C. and corruption matters in relation to public servants, while rejecting the relief of suspension of sentence in the matter of Jayalalitha & Ors; the Supreme Court of India seems to have resorted to granting suspension of sentence in the Special Leave to Appeal before it in a manner that seems to circumvent the tenets of law and procedure that it has laid down.
Rationale for difference between Bail and Section389 Cr.P.C.:
On the one hand, under application for bail under Section 437, 438 or 439 Cr.P.C. the arguments are largely based on right to life and personal liberty. This reasoning is congruous with the principle of Innocent Until Proven Guilty that is extended to the accused pending trial/inquiry/investigation. Hence the trend of the courts in India on No Auto Arrest and principle of Bail not Jail are the basis for granting pre-conviction bail.Further the recent string of judgments of the courts of India affirms that arrest is not the norm. Rather the arrest of an accused should only be in situations where there is a need for custodial interrogation, fear of the accused absconding or tampering with witness/evidence or for other logical reasons.
On the other hand, the purpose behind providing recourse of suspension of sentence under Section 389Cr.P.C. to a convicted person is to ensure that he/she does not face the brunt of inordinate delay in his/her appeal and thereby pay a very high price of languishing in jail for several years. However, if the appeal can be heard and taken on board without any delay then there may not be reasons to grant suspension of sentence.
389. Suspension of sentence pending the appeal; release of appellant on bail.
(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.
(2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by convicted person to a Court subordinate thereto.
A simple reading of the above section will show the following points:
- Person must be convicted.
- There must be an appeal preferred by the person convicted.
- The Appellate court (which does not include the Supreme Court of India) may pass an order as mentioned in the above section.
- However, only after application of mind and recording reasons for the said order can the suspension of sentence be granted or rejected.
The main reason behind difference in parameters of granting/rejecting bail and suspension of sentence is that the principle of Presumption of Innocenceno longer exists to the benefit of the accused in the case of suspension of sentence. The accused has now been convicted and therefore cannot be treated at par with a person who applies for bail pending trial/inquiry/investigation.
Scope of Suspension of Sentence:
The normal rule is that sentence should be suspended during the pendency of appeal. Nevertheless, if there exists any exceptional reason that substantiates the denial of such suspension, the order rejecting such applications must record the reasons for the same. Any order for suspension is to be passed after a careful consideration of all relevant aspects and not as a matter of routine.
In cases specifically pertaining to conviction of public servants for corruption, the Supreme Court of India has observed that, sentence should normally be suspended until disposal of appeal, because refusal would render the appeal futile unless such appeal could be heard expeditiously.
The common order of the Karnataka Court rejecting suspension of sentence:
The applications before the Karnataka Courtwere filed under Section 389(1) of Cr.P.C.
So to break it down, with reference to the Jayalalithaa&Ors. Applications, appeals have been preferred by the convicted persons and they are pending before the Appellate Court. Pending these appeals, applications were filed seeking suspension of sentence. So the pre-requisitesfor filing such applications were fulfilled.
The aforementioned rules and principles have been taken note of by the Karnataka High Court in its Common order dated 07-10-2014:
“…. In Bhagwan Rama ShindeGosaiAnd Others Vs. State of Gujarat: pending the appeal, suspension should normally be considered liberally unless there is any statutory prohibition. It is also made clear in the said decision that if the sentence of limited duration is not suspended, the matter should be expedited. ….
… In KishoriLal Vs. Rupa and Others: The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine. ….
… It is true that the sentence of imprisonment imposed on these accused is below seven years and that normally the Courts are expected to suspend the sentence. …
… The points to be considered- gravity of the offence, the sentence imposed and several other factors need to be considered by the Court. …
A scrutiny of this order shows that the Karnataka High Court rejected the applications for suspension of sentence as the applicants were convicts and not merely accused any longer.The Court also discussed and differentiated all the case law pleaded by the convicted persons. Further, the exceptional reason laid stress on the orders of the Supreme Court in relation to Corruption cases and has come to the conclusion that corruption is a serious m(a)lody undermining the very health of polity.On this basis the applications of suspension of sentence were rejected.
Moreover, the Court reiterated the direction of the Supreme Court of India to dispose the trial of corruption cases within one year. This thereby shows the willingness of the Appellate Court to take the appeal on board at the earliest. Hence, eventhough the suspension was not granted the requirement to deal with the appeal in an expeditious manner has been taken care. Moreover, as per Criminal Procedure nothing precluded the convicted persons from filing an application for early hearing or another application for bail at a later stage if there was infact inordinate delay.
In light of all these observations and realisations made by the Court the relief for suspension of sentence was rejected after passing a reasoned order and expressing willingness to deal with the appeal expeditiously.
Hence the Karnataka High Court has diligently applied law and procedure as laid down by the Judgments of the Supreme Court and Other courts of India and the Criminal Procedure Code.
Procedure before the Supreme Court of India:
Consequently against this order rejecting suspension of sentence the convicted persons filed Petitions in the Supreme Court of India by way of Special Leave under Article 136 of the Constitution of India.
136 Constitution Of India, Special leave to appeal by the Supreme Court
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India
Scope of Article 136:
- Article 136 of the Constitution is not a regular forum of appeal at all.
- It vests a discretion in the Supreme Court to interfere in exceptional cases.
- It does not bind the Supreme Court to set aside an order even if it was not in conformity with law (as the power is discretionary)
Therefore does this mean that the discretionary power under Article 136 is beyond any reason or limitation?
No. The Supreme Court itself has imposed restrictions and limitations on its discretionary power under Article 136. In Pritam Singh Vs. The State, the Supreme Court observed as under :-
"On a careful examination of Art.136 along with the preceding article, it seems clear that the wide discretionary power with which this Court is invested under is to be exercised sparingly and in exceptional cases only, and as far as possible a more or less uniform standard should be adopted in granting special leave in the wide range of matters which can come up before it under this article."
Hence admittedly the power under Article 136 should also be exercised in a uniform standard.
General Procedure in the Supreme Court of India:
- Firstly, the matter should be filed before the registry.
- The registry must clear these matters without defects/objections in terms of documents required and filing procedures.
- Then these matters are listed before the appropriate Bench as per the rooster in the regular course.
- The first stage is before notice i.e. before the opposite party has been served or the matter is brought to their notice. The Petitioners who file this case appear before the Bench and the Bench decides whether to issue notice to the opposite side (the Respondents).
- Thereafter, if notice is issued, the matter or case is listed before the Registrar for completion of service. Once the service is completed only then does it go before the Supreme Court Bench again.
In the normal course of filing a SLP, applications for suspension of sentence or bail are listed before the Chamber Judge (which is a Single Sitting Judge of the Supreme Court) and he/she decides on this particular prayer. This has been duly stated in the Supreme Court Rules.
Procedure followed in Special Leave Petitions (SLPs) Criminal No. 7900/2014 along with No. 7906-7908/2014:
In order to ensure that these SLPs Criminal No. 7900/2014, No. 7906-7908/2014 are heard at the earliest, on 13.10.2014 a procedure called mentioning was followed whereby Senior Counsels appeared before the Chief’s Court in the Supreme Court of India and requested that these cases be heard. In general practice this is done in order to get a direction to list cases earlier than the general pace in which it comes before the Supreme Court Bench.
Hence these SLPs were called on for hearing on 17.10.2014, withan office report that clearly showed a lacunae in a mandatory requirement of filing as per the Supreme Court Rules:
…. The counsel has requested to dispense with the requirement of certificate of custody, which is mandatory in nature, in view of the provisions of Order XX, Rule 3 of the Supreme Court Rules, 2013. A copy of the letter dated 10.10.2014 has been included at page NO.1296 of the Special Leave Petition Paper Books.
It is submitted that Order XX Rule (3) of the Supreme Court Rules, 2013, inter alia, provides that mere attestation on the Vakalatnama from the Jail Authorities shall not be considered as sufficient proof of surrender. It is also submitted that a certified copy of the order of the Court in which she has surrendered or a certificate of the competent authority of the Jail in which she is undergoing sentence is also required to be filed in accordance therewith.
The order passed by the Supreme Court of India:
The order of the Supreme Court dated 17.10.2014 simply reads:
After hearing Shri Fali S. Nariman, Shri K.T.S. Tulsi, learned senior counsel for the petitioners and Shri SubramoniumSwamy, party-in-person and also the complainant, for the present, we suspend the sentence and direct that the petitioners, (i) SelviJ.Jayalalithaa, (ii)Tmt.N.Sasikala, (iii) Mr.V.N. Sudhakaran, and (iv) TMT. J.Elasvarasi be released on bail on executing a bond with two solvent sureties by each of them to the satisfaction of the 36th Addl. City Civil & Sessions Judge (Spl. Court for Trial of Criminal Cases against Kum. Jayalalitha&Ors) at Bangalore.
The Supreme Court of India did not issue notice in this matter. Nor did it address concerns raised by the office report. Neither did it state reasons for differing from the common order of the Karnataka High Court and granting suspension of sentence to the convicted persons. While the first two instances of surpassing general procedure may perhaps be justified under the discretionary power invested by Article 136 in the Supreme Court of India and urgency in the matter at hand; the third- lack of providing any reasoning- is a glaring issue. Further, the order of the Supreme Court does not state whether this is the final relief or an interim measure. Moreover, the causelist (list of matters in the Supreme Court of India) of 17.10.2014 does not list these SLPs with prayer for Interim Relief, therefore the assumption is that the Supreme Court order is a final order.
An order of the court is to be a reflection of not only what transpired before it but also the rationale behind passing a particular order. However there is no mention of either in this order of the Supreme Court of India.
Departure of passing reasoned orders in similar matters:
In an opinion posted by Senior Advocate Rajeev Dhavan, he wrote:
Convicted on September 27, 2014 for four years, the Supreme Court released Jayalalithaa on bail on October 17, 2014. The bail had been denied by the Karnataka High Court on grounds that the conditions for granting bail to a pre-trial accused were different from those applicable to a convict.
Lalu’s bail in the Fodder scam took almost a year. Chautala got bail on medical grounds in two months.
YSR’s Jaganmohan Reddy, in a similar disproportionate assets case, spent a year in jail, Satyam’s chairman and co-accused were in jail for almost three years, the alleged 2G scamsters (Raja and Kanimozhi) were in jail for a year. With Jayalalithaa, Sasikala, Illavarasai and Sudhakaran were also released in this record time of 21 days.
But with the recent spate of corrupt politicians and hi-fi cases, courts have developed what appears to be a "showcase" exception. Faced with public opinion and media glare, judges seem to make a "showcase" of not granting bail to corrupt politicians with alacrity. With this, the judiciary salvages its own conscience to "showcase" that the high and mighty are not favourably treated. This is the reason why Lalu and others were in post-conviction custody for a longer period. If there was ever a "showcase" cause célèbre, it was Jayalalithaa’s case. Then, why did she get bail so quickly?
It is a fact that the Supreme Court of India has been dealing with corruption matters in relation to public servants with an iron rod. All of the orders mentioned by Senior Advocate Dhavan have been issued after the convicted persons spent a considerable time in jail and after recording of reasons for the suspension of sentence. Hence it pushes one to think what the urgency was in the present matter where the convicted persons’ sentence was suspended within a mere span of 21 days without providing any reasons for the same.
The Supreme Court by virtue of self-imposed limitations and restrictions is to use its discretionary power under Article 136 sparingly, in exceptional circumstances and in a uniform standard. The Supreme Court has certainly departed from this uniform standard that it has been applying to other corruption matters with relation to public servants and has failed to provide any reasons for the same.
Several media reports stated that conditional bail was granted by the Supreme Court. Some news articles reported:
The court has given her (Jayalalithaa) bail on medical grounds.
The court made it clear that Jayalalithaa and three others will complete their appeal with all relevant documents before the high court in a matter of two months and thereafter, it will ask the high court to expedite and complete the hearing on the appeal within three months.
The court told senior counsel Fali S Nariman, appearing for Jayalalithaa, that it will not grant a day more to his client if they don't complete the paperwork of their appeal before the high court with all the documents within a span of two months.
But the question remains why none of this information, which was splashed across the media, finds any mention in the order of the Supreme Court of India dated 17.10.2014.
In conclusion, though the parameters of Sec. 389 do not apply to the Supreme Court of Indiamutatis mutandis, howeverthe Supreme Court of India has a duty by virtue of their own rulings and status to provide reasons and clarity on the action being taken by them. If they depart from their own procedure and rulings, which are duly applied by the High Courts, then the duty to provide reasons for applying its discretionary powers is indispensable.