Judgment as per Majority views:
1. Appeal
- This appeal is directed against the order dated 24.07.2023, passed by the High Court of Judicature at Allahabad (hereinafter, ‘High Court’), partially allowing the application filed by the Appellant under Section 389(1) of the Code of Criminal Procedure, 1973 (hereinafter, ‘CrPC’), for the stay on the sentence and conviction, awarded by the Learned Additional Sessions Judge, MP/MLA Court, Ghazipur (hereinafter, ‘Trial Court’) vide judgement and order dated 29.04.2023. The High Court, has through the impugned order, suspended the Appellant’s sentence and granted him bail but the stay on conviction has been declined.
2. FACTS:
- At this juncture, it is imperative to delve into the factual matrix to set out the context of the present proceedings.
Introduction on appellant
3.1. The Appellant is a public representative, having served as a Member of the Legislative Assembly in Uttar Pradesh for five consecutive terms, and as a Member of Parliament for two terms. Until the recent disqualification following the judgment rendered by the Trial Court, the Appellant was the incumbent Member of Parliament for the Ghazipur Constituency, since 2019. The Appellant currently holds various positions, including roles in the Ghazipur Standing Committee on Agriculture, Animal Husbandry, and Food Processing, as well as the Ghazipur District Development Coordination and Monitoring Committee.
3.2. On 19.11.2007, PW-1, who was the Station House Officer at the Mohammadabad Kotwali Police Station, received information from anonymous sources during his routine patrol with regards to the operations of a gang led by one Mukhtar Ansari in the area, who was reportedly involved in various illicit activities such as murder, extortion, kidnapping and other criminal acts, carried out for political gain. It was further informed that the said gang had instilled fear and terror in the public, discouraging everyone from opposing their actions. Based on such information, PW-1 prepared a comprehensive gang chart under the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 (hereinafter, ‘UP Gangsters Act’) and obtained necessary approvals from the Police authorities and the District Magistrate of Ghazipur. On the very same day, Case Crime No. 1052/2007 was registered under Section 3(1) of the UP Gangsters Act at the Mohammadabad Police Station in the Ghazipur District of Uttar Pradesh (hereinafter, ‘New FIR’). This registration emerged from the earlier Case Crime No. 589/2005, (hereinafter, ‘Old FIR’), which was a murder case, in which the Appellant had been accused of conspiracy but was subsequently acquitted, as explained briefly hereinafter.
3. Multiple firs all over the state
3.3. It is crucial to emphasise at this stage that the Appellant has been found involved in multiple FIRs filed throughout the State of Uttar Pradesh. To provide a concise overview, a summary of these FIRs is presented below, elucidating their context and significance in relation to the ongoing proceedings:
i. Case Crime No. 28/1998 was registered under Section 171F of the Indian Penal Code, 1860 (hereinafter, ‘IPC’) and Section 135(2) of the Representation of People’s Act, 1951 (hereinafter, ‘RPA’) on 16.02.1998, at Police Station Nonhara, District Chandauli, Uttar Pradesh, for violation of the Model Code of Conduct during the election period. The Appellant has not yet been summoned by the investigating officer or the concerned Court in this case.
ii. Case Crime No. 260/2001 was registered on 09.08.2001, at Police Station Mohammadabad, Uttar Pradesh, under Sections 147, 148 and 353 of the IPC, and Section 3 of the Prevention of Public Properties from Damages Act, 1984 along with Section 7 of the Criminal Law Amendment Act, 1932. The Appellant has since been granted bail in this case.
iii. Case Crime No. 493/2005 was registered under Sections 302, 506, 120B of the IPC on 27.06.2005, at Police Station Mohammadabad, Uttar Pradesh in which the Appellant was named as a conspirator. However, since the Appellant was found to have played no particular role in the subject crime, his name was dropped during the early stages of the investigation and no chargesheet was filed against him.
iv. Case Crime No. 589/2005 was registered under Sections 147, 148, 149, 307, 302, 404 and 120-B of the IPC, at Police Station Bhanvar Kol, District Ghazipur, on 29.11.2005. The Appellant was accused of hatching conspiracy in the said murder case. The investigation of this case was entrusted to the Central Bureau of Investigation (hereinafter, ‘CBI’) and the trial was subsequently transferred to the CBI Court at Rouse Avenue, New Delhi, wherein the Appellant was acquitted. The CBI has filed an appeal challenging the acquittal of the Appellant, but till date no adverse order has been suffered by him. Further, this is the only case mentioned in the gang chart that was prepared and relied upon in the instant case.
v. Crime Case No. 1051/2007 was registered under Sections 302, 120-B, 436, 427 of the IPC and Sections 3, 4 and 5 of the Explosives Act, 1884 and Section 7 of the Criminal Law Amendment Act, 1932. In this case, the name of the Appellant was dropped after it was deduced that he had no role to play in the reported crime. The Appellant was neither charge sheeted nor summoned by the concerned Trial Court in this particular instance.
vi. Case Crime No. 607/2009 under Sections 171 and 188 of the IPC was registered on 11.04.2009 at Police Station, Mohammadabad, Uttar Pradesh, alleging violation of the Model Code of Conduct during the election period. The Appellant has admittedly not been summoned in this case.
vii. Case Crime No. 18/2014 was registered under Sections 171J, 188 of the IPC and Section 121(2) of the RPA, at Police Station Chakarghatta, District Chandauli, Uttar Pradesh and the Appellant has already been granted bail in this matter.
4. Trial court found guilty on UP Gangsters Act
3.4. Adverting to the New FIR, the Trial Court held the Appellant guilty under Section 3(1) of the UP Gangsters Act and awarded him a sentence of four years of simple imprisonment, along with a fine of Rs. 1,00,000/- (Rupees One Lakh only). Consequently, Notification No. S.O. 1994 dated 01.05.2023 was published by the Lok Sabha Secretariat in the Gazette of India, disqualifying the Appellant from membership in the Lok Sabha, effective from the date of his conviction on 29.04.2023.
5. Appeal preferred with stay of conviction and stay of realisation of fine pending appeal
3.5. The Appellant thereafter preferred Criminal Appeal No. 5295/2023 under Section 374(2) of the CrPC before the High Court, challenging the judgment and order of his conviction and sentence dated 29.04.2023 (hereinafter ‘First Criminal Appeal’). He also filed an application under Section 389(1) of the CrPC, seeking inter alia,
(i) suspension of the sentence awarded by the judgement and order dated 29.04.2023 and his release on bail, during pendency of the First Criminal Appeal;
(ii) stay of the effect and operation of the judgement and order dated 29.04.2023; and
(iii) stay of realisation of fine during pendency of the appeal.
High court stayed execution of sentence and granted bail but declined to stay the conviction
3.6. As noticed earlier, the High Court has partially allowed the application filed by the Appellant. The execution of the sentence has been stayed and bail has been granted but stay on conviction has been declined. The instant appeal is thus confined to the Appellant’s prayer for the stay of his conviction, during the pendency of his Criminal Appeal before the High Court.
6. Judgments relied by the appellant counsel
Naranbhai Khikhabhai Kachchadia v. State of Gujarat – Crl. Appeal No. 418 of 2016
Lok Prahari through General Secretary v. Election Commission of India and others – (2018) 18 SCC 114, para 16.
Judgments relied by the U.P government
Lily Thomas v. Union of India – (2013) 7 SCC 653, para 35. and
Sanjay Dutt v. State of Maharashtra – (2009) 5 SCC 787, para 12.
7. Question of law framed
- In our considered opinion, the questions that fall for deliberation, are set out as follows:
i. What are the parameters to be considered for the suspension of conviction under Section 389(1) of the CrPC?
ii. Whether the Appellant has made out a prima facie case for the suspension of conviction under Section 389(1) of the CrPC?
iii. Whether conviction of an offence involving ‘moral turpitude’ can be a valid ground to deny suspension of conviction under Section 389(1) of the CrPC?
Analysis
Scrutinising section 381(1) Cr.P.C
- At the outset, it is imperative to delineate the essential parameters that must be meticulously examined to determine whether a case can be made out for suspension of conviction under Section 389(1) of the CrPC. Section 389(1) enjoys upon the Appellate Court, the power to issue an order for the suspension of a sentence or an order of conviction during the pendency of an appeal. It may be thus of paramount importance to scrutinise the precise language of Section 389(1) of the CrPC, which is articulated as follows:
“S. 389(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.”
Primary factor is failure to stay such a conviction would lead to injustice or irreversible consequences
- It becomes manifestly evident from the plain language of the provision, that the Appellate Court is unambiguously vested with the power to suspend implementation of the sentence or the order of conviction under appeal and grant bail to the incarcerated convict, for which it is imperative to assign the reasons in writing. This Court has undertaken a comprehensive examination of this issue on multiple occasions, laying down the broad parameters to be appraised for the suspension of a conviction under Section 389(1) of the CrPC. There is no gainsaying that in order to suspend the conviction of an individual, the primary factors that are to be looked into, would be the peculiar facts and circumstances of that specific case, where the failure to stay such a conviction would lead to injustice or irreversible consequences [Ravikant S. Patil v. Sarvabhouma S. Bagali, (2007) 1 SCC 673, para 15 and 16.5] The very notion of irreversible consequences is centered on factors, including the individual’s criminal antecedents, the gravity of the offence, and its wider social impact, while simultaneously considering the facts and circumstances of the case.
Order granting a stay of conviction is an exception and not rule
- This Court has on several occasions opined that there is no reason to interpret Section 389(1) of the CrPC in a narrow manner, in the context of a stay on an order of conviction, when there are irreversible consequences. Undoubtedly, Ravikant Patil v. Sarvabhouma S. Bagali [(2007) 1 SCC 673, para 15] holds that an order granting a stay of conviction should not be the rule but an exception and should be resorted to in rare cases depending upon the facts of a case. However, where conviction, if allowed to operate would lead to irreparable damage and where the convict cannot be compensated in any monetary terms or otherwise, if he is acquitted later on, that by itself carves out an exceptional situation. Having applied the specific criteria outlined hereinabove to the present factual matrix, it is our considered view that the Appellant’s case warrants an order of stay on his award of conviction, though partially.
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Having said so, we hasten to hold that societal interest is an equally important factor which ought to be zealously protected and preserved by the Courts. The literal construction of a provision such as Section 389(1) of the CrPC may be beneficial to a convict but not at the cost of legitimate public aspirations. It would thus be appropriate for the Courts to balance the interests of protecting the integrity of the electoral process on one hand, while also ensuring that constituents are not bereft of their right to be represented, merely consequent to a threshold opinion, which is open to further judicial scrutiny.
Conclusion and directions
- We, thus, deem it appropriate to partially allow this appeal and suspend the conviction awarded to the Appellant in Special Sessions Trial No. 980/2012 subject to the following conditions, clarifications and directions:
“…………….”
Judgment as per Minority view:
- The unreported decision in Naranbhai Bhikhabhai Kachchadia v. State of Gujarat [Criminal Appeal No. 418/2016 (order dated 29th April, 2016)], relied on by Dr. Singhvi, was rendered on an appeal where the prayer for stay of conviction was declined by the relevant high court. The appellant, a sitting member of Parliament, had been convicted of offences under sections 332, 186 and 143, IPC along with others but acquitted of the more serious offence under section 3(1) (x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. Looking to the facts of the case, this Court was of the view that adverse consequences will certainly follow not only to the appellant but also to his constituents in case the conviction remains, and the impact thereof would be irreparable. Considering various factors as delineated in unnumbered paragraph 13, including the somewhat exceptional consequence of the disqualification of the appellant from representing his constituents in Parliament for six years, this Court quashed the prosecution against the appellant only on the condition that the appellant pays to the victim/complainant Rs.5,00,000/- within a week.
Approach of court with different personals
- Bare perusal of the aforementioned decisions reveal how this Court has differently dealt with approaches made by, inter alia, a Managing Director of a company, a member of the Legislative Assembly, a member of Parliament, a film actor intending to join politics, a bank officer, a civil post holder and a principal of an institution, while they sought for stay of conviction.
Power to stay conviction under section 389 (1) Cr.P.C has been judicially acknowledged
- Although the aforesaid observation in K. Prabhakaran (supra) correctly captures the essence of section 389, Cr. PC., it appears not to have been placed before the other Benches of this Court while it rendered decisions subsequent thereto (some of which have been noted hereinabove). Although a difference between an ‘order of conviction being stayed’ and ‘execution of the order appealed against being suspended’ in the context of exercise of jurisdiction by the courts under the Cr. PC is discerned, such difference was not delineated possibly because the issue before the Court did not warrant it. In any event, K. Prabhakaran (supra) being a Constitution Bench decision, the same would bind all Benches of lesser strength and it is trite that any interpretation of section 389(1), Cr. PC not in line therewith has to yield to it. At the same time, Rama Narang (supra) without being doubted having held the field so long and by which the power to stay conviction under section 389, Cr. PC stands judicially acknowledged, all later decisions including K. Prabhakaran (supra) must be read as complimentary to it.
A profitable comparison between stay of execution of degree and stay of conviction
- In the context of civil proceedings, it is noted that Order XLI Rule 5 of the Code of Civil Procedure (“CPC”, hereafter) empowers an appellate court to order stay of execution of the decree appealed from. The provisions of Order XLI of the CPC apply to appeals from orders in terms of Rule 2 of Order XLIII thereof. Law is well settled that ‘stay of operation of an order’ means that the order which has been stayed would not be operative from the date the order of stay is passed but it does not mean that the order, which is stayed, is wiped out from existence. However, it is in section 389(1), Cr. PC that the expression “execution of the sentence or the order appealed against be suspended” pending the appeal is found instead of the legislature having used a simpler expression like “the order appealed against be stayed”. Had the statute provided so and an order to that effect were passed, it would be sufficient to stay the conviction as well as the sentence. However, the legislature has prefaced “the sentence or the order appealed against” with “execution”, which has the effect of connoting that only such part of the judgment and order appealed against, which is capable of being executed, can be suspended under section 389(1), Cr. PC. Though conviction would be an integral part of the judgment and order carried in an appeal, but it is not executable in the sense a sentence of imprisonment and/or fine or any other order fastening Page 26 of 56 obligation on the convict is executable. While section 389(1) empowers an appellate court to suspend execution of the sentence or the order appealed against, an order suspending execution of the order appealed against [according to K. Prabhakaran (supra) and Lalsai Khunte (supra)] would not amount to a stay of conviction. An order staying the conviction has to be sought before the concerned court and obtained by the convict to render any disability including a disqualification as in the present case, incurred as a result of the conviction, inoperative. In the absence of a stay of conviction having been sought and an order to that effect having been passed, an order merely suspending execution of the order appealed against would be of no use in a matter of the present nature.
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Be that as it may, the guiding principles that emerge from these precedents can briefly be summarised as follows:
a. the power to suspend execution of an order and/or to stay a conviction is traceable to section 389(1), Cr. PC notwithstanding that the high courts may, in appropriate cases, exercise their inherent jurisdiction preserved by section 482 of the Cr. PC to grant a stay of conviction;
b. suspension of execution of an order of conviction or stay of the conviction — whatever be the prayer made before the Court of appropriate jurisdiction, the same can be granted depending upon the facts of each particular case and the courts have a duty to look at all aspects including the ramifications of keeping the conviction in abeyance.
c. stay of conviction or suspension of execution of conviction is a rare occurrence, and in order to avail this exceptional measure, it must be demonstrated that irreversible consequences and injustice would otherwise entail which cannot be undone in future;
d. a convict who has appealed against the judgment and order of conviction and sentence – if he wishes to have the conviction stayed – has to specifically pray for stay of conviction, since despite suspension of execution of sentence and the order appealed against, the conviction remains and such suspension does not amount to stay of conviction;
e. while seeking a stay of conviction pending appeal, it is imperative for the appealing convict to expressly bring to the court’s attention the foreseeable consequences that could ensue if the conviction were not stayed and failure to elucidate these specific consequences may lead to the denial of a stay of conviction;
f. once a conviction is either stayed or execution of the conviction is suspended under the Cr. PC, the conviction becomes inoperative starting from the date of stay/suspension without, however, having the effect of obliteration; and
g. one cannot establish a fixed rule that the order of conviction should not be stayed or its execution suspended as a means to prevent an individual, who has committed an offence, from entering Parliament or the Legislative Assembly.
Allowing a convicted parliamentarian to attend parliamentary proceedings could derogatory to the good sense and wisdom of people
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A summary of the above discussion is that allowing a convicted parliamentarian to attend parliamentary proceedings could not only be derogatory to the dignity of the Parliament but also derogatory to the good sense and wisdom of the people who elected such parliamentarian. The robust democratic foundation envisioned in the Constitution finds its purest manifestation in the RoP Act; the democratic spirit inherent in the Constitution, therefore, pervades through section 8 of the RoP Act, giving primacy to nothing but the rule of law. Against this backdrop, the standard Page 41 of 56 applied to stay the conviction of a parliamentarian ought to attract a higher standard and the disability stemming from the conviction cannot be forestalled using the identical standard prescribed for suspending the execution of the sentence or order appealed against. In view of a parliamentarian occupying a coveted position of trust and confidence, a more stringent standard is imperative to suspend the conviction. Even if not subject to a heightened standard, the standard must not be lowered in cases where the requisites laid down by precedents are not followed, and under no circumstances should it be relaxed solely on account of the parliamentarian’s elevated status. While the standard for suspending a conviction is contingent upon the unique facts and circumstances of each case, it remains unequivocal that regardless of the individual seeking a stay of conviction, only under exceptional circumstances, as demonstrated before an “Appellate Court” wielding authority under section 389(1), Cr. PC, could a stay of conviction be granted but obviously based on reasons to be recorded by such court in its order.
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For the reasons aforesaid, I regret my inability to be ad idem with the majority insofar as grant of relief to the appellant is concerned. I find no reason to interfere with the impugned judgment and order of the High Court. The appeal ought to fail and the same is hereby dismissed
Parties
Afjal Ansari ….Appellant(s) versus State of UP ….Respondent(s) – Criminal Appeal No. 3838 Of 2023 (Arising out of Special Leave to Appeal (Crl.) No. 11129 Of 2023) – December 14, 2023 – 2023 INSC 1071
https://main.sci.gov.in/supremecourt/2023/35441/35441_2023_5_1501_49118_Judgement_14-Dec-2023.pdf
