1. Heard learned respective Counsel for the parties, finally.
2. This is an application preferred by the applicant nos.1 and 2, requesting that the conviction imposed upon them by judgment and order dated 8-8-2011, passed by learned Additional Sessions Judge, Jalgaon, in Sessions Case No. 73/2001, pending hearing of Criminal Appeal No. 449/2011, be suspended.
3. It is the contention of the applicants that they have been convicted for the offence punishable under Section 325, read with Section 34 of Indian Penal Code and have been sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs. 2,000/-, each, in default, to suffer rigorous imprisonment for three months, by the judgment and order dated 8th August 2011, rendered by the learned Additional Sessions Judge, Jalgaon, in Sessions Case No. 73/2001. It is also contention of the applicants, that they have questioned the conviction and sentence by filing Criminal Appeal No. 449/2011 before this Court and same has been admitted by this Court. The applicants also submit that the applicants preferred application for bail before this Court and same has been allowed by this Court on 22nd September 2011, and they have been enlarged on bail, suspending the substantive sentences inflicted upon them. On this background, the applicants have preferred present application for suspension of the conviction imposed upon them, by way of aforesaid judgment and order dated 8th August 2011.
4. The applicants submit that the applicants contested the election for Bhusawal Municipal Council in 2006, in which, applicant no.1 was elected as Councillor, whereas applicant no.2 was defeated, and the applicant no.1 submits that his term of Municipal Council, Bhusawal, is to expire in December 2011. It is also contention of the applicants, that the State Election Commission has declared the elections for various Municipal Councils in the State of Maharashtra, including Bhusawal Municipal Council, on 1-11-2011, and accordingly, election programme has been declared for publication of voters' list on 17-10-2011. The applicants state that the date of filing of nomination paper is from 16-11-2011 up to 22-11-2011, and annexed copy of the election programme at Exhibit "P-II" (Pages 13 to 20 of the Application).
5. The applicants submit that they desire to contest the election to Municipal Council, Bhusawal, for the next term, and therefore, they are required to fill in nomination papers up to 22nd November 2011, as per aforesaid election programme. However, in view of Section 16(1)(a) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (For short, hereinafter referred to as "Act of 1965"), the applicants are not qualified to become a Councillor since convicted for more than two years by above referred judgment and order dated 8th August 2011, in Sessions Case No. 73/2001, passed by the learned Additional Sessions Judge, Jalgaon. Hence, the applicants have approached this Court by way of present application, with a request to suspend the conviction of the applicants, to enable them to contest the election of Bhusawal Municipal Council. The applicants also submit that they have good case on merits and they have every hope that they would be acquitted in the appeal filed by them, which has been admitted, but not likely to be heard in the near future.
6. The respondent / State has filed affidavit in reply and opposed the present application vehemently, and denied the averments and contentions made by the applicants, unless admitted specifically. It is submitted that the learned trial court has properly considered the evidence and depositions of the witnesses, and came to the conclusion that the present applicants have committed the offence, and they were convicted and sentenced accordingly, as mentioned herein above. It is also submitted that a condition was imposed upon the applicants that they shall keep informed about their whereabouts to the Police Station, from time to time, while granting bail, but the applicants have not adhered with the said condition. The said affidavit also recites that the applicant no.1 has committed one more offence under Crime No. 249/2011, for the offences punishable under Sections 387, 109, read with Section 34 of Indian Penal Code, after grant of bail by this Court in the aforesaid appeal, and copy of the said FIR is annexed at Exhibit "R-1". It is further stated that the accused persons were having criminal, as well as, political background. It is submitted that, in all, 23 offences have been registered against applicant no.1, whereas about seven offences were registered against applicant no.2 and copy of the details of the said offences committed by applicant nos.1 and 2 is annexed with the affidavit at Exhibit "R-2". Hence, the respondent / State, in the said affidavit in reply, has stated that considering gravity of the offence and background of the appellants, present application, seeking suspension of conviction during pendency of the appeal, is devoid of any merits, and deserves to be dismissed.
7. The applicants have filed the affidavit in reply and stated that the respondent has not disclosed all the true and correct facts and suppressed the material facts from this Court, and submitted that on the said ground alone, present application deserves to be allowed. It is stated that out of the alleged total 23 offences, majority of the offences are due to the political reasons, and annexed copy of the chart Exhibit "P-I", indicating position of the said offences. It is also stated that in that view of the matter, the contention raised about the pendency of the criminal cases is wholly irrelevant and cannot be taken into consideration.
8. Learned Counsel for the applicants canvassed that this Court is empowered to suspend the conviction under Section 389 of the Code of Criminal Procedure, 1973. It is also submitted that the sentences imposed upon the applicants have been already suspended by this Court while enlarging the applicants on bail, as mentioned herein above. It is also canvassed that the applicants are sanguine of success in the Criminal Appeal filed by them, which has been already admitted, and submitted that if the conviction imposed upon them is not suspended, as prayed by them in the present application, they would be prevented from filing the nomination forms for the elections which would be conducted for the next term, as mentioned herein above, and the damage done to them cannot be undone even if they succeed in the appeal, later on, since there is embargo of Section 16(1)(a) of the Act of 1965.
9. It is further argued by the learned Counsel for the applicants, that the criminal background of the applicants, as put forth by the respondent, need not be taken into consideration while considering the present application, since the statute requires conviction and not mere registration of the offence. It is also argued by the learned Counsel for the applicants, that if the present application is not allowed, and if the conviction imposed upon them is not suspended, it would lead to non-filing of nomination form by the applicants for the ensuing elections of Bhusawal Municipal Council which would deprive them from contesting the election and the same would lead to injustice and irreversible consequences since the applicants are hopeful in succeeding the appeal filed by them. In substance, it is canvassed that the disqualification contemplated under Section 16(1)(a) of the Act of 1965, to contest the election of the Municipal Council is on the basis of conviction and sentence not less than two years, but not on the criminal background of the applicants, and it is submitted that the court has to interpret the law as it stands and not on considerations which may be perceived to be morally more correct or ethical. To substantiate the said arguments, learned Counsel for the applicants has relied upon judicial pronouncements as mentioned herein below :
(i) The judgment of Hon. Apex Court, in the case of Navjot Singh Sidhu Vs. State of Punjab and another, reported at AIR 2007 SC 1003, wherein the Hon. Apex Court has observed thus :
" Before proceeding further it may be seen whether there is any provision which may enable the Court to suspend the order of conviction as normally what is suspended is the execution of the sentence. Sub-section (1) of S. 389 says that 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 or bail, or on his own bond. This sub- section confers power not only to suspend the execution of sentence and to grant bail but also to suspend the operation of the order appealed against which means the order of conviction. This question has been examined in considerable detail by a three-Judge Bench of this Court in Rama Narang v. Ramesh Narang and others (1995) 2 SCC 513 and Ahmadi, C.J., speaking for hte Court, held as under (para 19 of the reports :-
"19. That takes us to the question whether the scope of Section 389(1) of the Code extends to conferring power on the appellate Court to stay the operation of the order of conviction. As stated earlier, if the order of conviction is to result in some disqualification of the type mentioned in S. 267 of the Companies Act, we see no reason why we should give a narrow meaning to S. 389(1) of the Code to debar the Court from granting an order to that effect in a fit case. The appeal under S. 374 is essentially against the order of conviction because the order of sentence is merely consequential thereto; albeit even the order of sentence can be independently challenged if it is harsh and disproportionate to the established guilt. Therefore, when an appeal is preferred under S. 374 of the Code the appeal is against both the conviction and sentence and, therefore, we see no reason to place a narrow interpretation on S. 389(1) of the Code not extend it to an order of conviction, although that issue in the instant case recedes to the background because High Courts can exercise inherent jurisdiction under S. 482 of the Code if the power was not to be found in S. 389(1) of the Code. We are, therefore, of the opinion that the Division Bench of the High Court of Bombay was not right i holding that the Delhi High Court could not have exercised jurisdiction under S. 482 of the Code if it was confronted with a situation of there being no other provision in the Code for staying the operation of the order of conviction. In a fit case if the High Court feels satisfied that the order of conviction needs to be suspended or
(10) Cri. Application No. 5011 of 2011 stayed so that the convicted person does not suffer from a certain disqualification provided for in any other statute, it may exercise the power because otherwise the damage done cannot be undone; the disqualification incurred by S. 267 of the Companies Act and given effect to cannot be undone at a subsequent date if the conviction is set aside by the appellate Court. But while granting a stay or suspension of the order of conviction the Court must examine pros and cons and if it feels satisfied that a case is made out for grant of such an order, it may do so and in so doing it may, if it considers it appropriate, impose such conditions as are considered appropriate to protect the interest of the shareholders and the business of the company."
The aforesaid view has recently been reiterated and followed by another three-Judge Bench in Ravi Kant S. Patil v. Sarvabhouma S. Bagali, 2006(1) JT (SC) 578. After referring to the decisions on the issue, viz., State of Tamil Nadu v. A. Jagannathan (1996) 5 SCC 329; K.C. Sareen v. C.B.I., Chandigard (2001) 6 SCC 584; B.R. Kapur v. State of T.N. and another (2001) 7 SCC 231 and State of Maharashtra v. Gajanan and another (2003) 12 SCC 432, this Court concluded (para 12.5 of the report) :
" All these decisions, while recognising the power to stay conviction, have cautioned and clarified that such power should be exercised only in exceptional circumstances where failure to stay the conviction, would lead to injustice and irreversible consequences."
The Court also observed :-
"11. It deserves to be clarified that an order granting stay of conviction is not the rule but is an exception to be resorted to in rare cases depending upon the facts of a case. Where the execution of the sentence is stayed, the conviction continues to operate. But where the conviction itself is stayed, the ffect is that the conviction will not be operative from the date of stay. An order of stay, of course, does not render the conviction non-existent, but only non- operative............"
The legal position, is therefore, clear that an appellate Court can suspend or grant stay of order of conviction. But the person seeking stay of conviction should specifically draw the attention of the appellate Court to the consequences that may arise if the conviction is not stayed. Unless the attention of the Court is drawn to the specific consequences that would follow on account of the conviction, the person convicted cannot obtain an order of stay of conviction. Further, grant of stay of conviction can be resorted to in rare cases depending upon the special facts of the case. "
The Hon. Apex Court has further observed thus :
" The Act provides not only the eligibility and qualification for membership of the House of People and Legislative Assembly but also for disqualification on conviction and other matters. The Parliament in its wisdom having made a specific provision for disqualification on conviction by enacting Section 8, it is not for the Court to abridge or expand the same. The decisions of this Court rendered in Rama Narang v. Ramesh Narang and Ors. (supra) and Ravi Kant S. Patil v. Sarvabhouma S. Bagali (supra) having recognized the power possessed by the Court of appeal to suspend or stay an order of the conviction and having also laid down the parameters for exercise of such power, it is not possible to hold, as a matter of rule, or, to lay down, that in order to prevent any person who has committed an offence from entering the Parliament or the Legislative Assembly the order of the conviction should not be suspended. The Courts have to interpret the law as it stands and not on considerations which may be perceived to be morally more correct or ethical.
Shri Rakesh Dwivedi has also submitted that once an accused has been convicted and sentenced, it is only the execution of the sentence which can be suspended and the order of conviction cannot be suspended or stayed as the same is not capable of being stayed or suspended. For this reliance is placed on certai observations made in paras 34 and 44 of the decision rendered in B.R. Kapur v. State of T.N. and Anr., (2001) 7 SCC 231 and on paras 42, 43, 53 and 54 in K. Prabhakaran v. Jayarajan, (2005) 1 SCC 754. The contention is that the appellant would not be absolved of the disqualification even if an order of suspension or stay of the conviction is passed by this Court. We are dealing here with the limited question, viz., the prayer made by the appellant for suspending or staying the order of conviction. We are not required to adjudicate upon the question as to what will be the effect of the order and further whether he will continue to be disqualified for the purpose of contesting the election even if the prayer made by the appellant is grnted as such an issue is wholly alien to the present controversy which can arise only in an election petition where the validity of the election may be called in question. "
(ii) The judgment of Division Bench of this Court, in the case of Laxman Malhari Sable Vs. State of Maharashtra, reported at 1997 CRI. L.J. 2556, wherein this Court has observed thus :
" Coming to the facts of the present case, we have already indicated the unfortunate circumstances leading to the incident where the deceased picked up his revolver and fired at the petitioner and then at the petitioner's son. Prima facie it appears to us that this was undoubtedly a case of the petitioner acting in exercise of his right of private defence. Having admitted the appeal, we granted him bail. He belongs to Denotified Wadar Tribe and as such has been elected as a Councillor and is now the President of the Municipal Council for one year. The period of one year is likely to expire in December 1997. Under the circumstances, in our view, a case is made out for exercise of the discretion in favour of the petitioner. What is at stake is his holding a public office. The likely damage cannot be undone even if he ultimately succeeds in the appeal. In the peculiar facts and circumstances of this case, we are inclined to make the rule absolute in terms of prayer (a). Hence rule is made absolute in terms of prayer (a). "
(iii) The judgment of learned Single Judge of this Court, dated 16th April 2004, in Criminal Application No. 818 of 2004, in the case of Suresh Ramchandra Swar Vs. The State of Maharashtra, wherein this Court has observed thus :
" Taking into account the aforementioned facts and circumstances of the case and the principles underlying the provisions of Section 389 of the Criminal Procedure Code, the conviction and sentence suffered by the applicant deserves to be suspended, as otherwise he would be disqualified to be a Councillor of Chalisgaon Municipal Council. At the same time, it would be appropriate to direct expeditious hearing of his appeal.
The Additional Registrar (Judicial), High Court Bench at Aurangabad is directed to take steps for expeditious preparation of the paper book in Criminal Appeal No. 169 of 2004 arising out of Sessions Case No. 11 of 2001 and after preparation of paper book, the appeal should be listed before this Court for its final hearing. The same exercise shall be completed within a period of six months from today.
The conviction and sentence imposed by the 1st Ad hoc Additional Sessions Judge, Jalgaon, in Sessions Case No. 11 of 2001, against the applicant Suresh Ramchandra Swar stands suspended. Criminal Application stands disposed of. "
Accordingly, learned Counsel for the applicants urged that the present Application be allowed.
10. Learned Additional Public Prosecutor for the respondent / State countered the aforesaid arguments and submitted that it is observed in the impugned judgment dated 8th August 2011, in paragraph 27, that "The prosecution evidence is consistent and remained unchallenged in the cross examination of the witnesses. It also gets corroboration from the evidence of other eye witnesses and is supported by circumstantial evidence and medical evidence. The evidence of all the prosecution witnesses inspire confidence.", as well as, it is observed in paragraph 25 of the said judgment, that "The injuries sustained by PW 6 Hemraj have been proved by Dr. Sanjiv Huzurbazar, which were grievous, and it is stated by all eye witnesses that it is accused nos.1 and 2 (i.e. present applicants), who are responsible for causing head injury to PW 6 Hemraj." It is also pointed out by the learned APP from paragraph 31 of the impugned judgment, that the incident took place in the premises of the Police Station and in the presence of Police Officer, and accused nos.1 and 2 i.e. applicants herein dared to assault the complainant in the premises of the Police Station, and this only circumstance invites deterrent punishment, and it is also observed that there are no mitigating circumstances and this is a fit case to give deterrent punishment to the accused, and consequently, the applicants were convicted for the offence punishable under Section 325 read with Section 34 of Indian Penal Code, and were sentenced to suffer rigorous imprisonment for 3 years and to pay a fine of Rs. 2000/-, each, and accordingly, learned APP submits that one competent court has convicted and sentenced the applicants and there is strong incriminating evidence against the applicants, and therefore, there is no substance in the arguments canvassed by the learned Counsel for the applicants, that they are sanguine success in the said appeal.
11. It is also canvassed by the learned APP, that the criminal background of the applicants put forth by the respondents cannot be overlooked and even crime has been registered under Sections 387, 109, read with Section 34 of Indian Penal Code, under C.R. No. 249/2011, against applicant no.1, after grant of bail to him under the aforesaid appeal i.e. on 25-10-2011, and bail was granted to applicant no.1 on 22nd September 2011. Learned APP has further submitted that the suspension of conviction is considered under the rare circumstances and in exceptional cases and the said discretion has to be exercised judiciously, but the applicants have not made out such rare and exceptional case to exercise the said discretion judiciously. Learned APP has relied upon judicial pronouncement of the Hon. Apex Court, in the case of Central Bureau of Investigation, New Delhi Vs. M.N. Sharma, reported at AIR 2009 SC 1185, wherein the Hon. Apex Court has observed thus :
" In State of Maharashtra v. Gajanan and another [2003(12) SCC 432], it was noted as follows :
" Having perused the impugned order as also the judgment of this Court in K.C. Sareen's case [2001(6) SCC 584] we find the High Court had no room for distinguishing the law laid down by this Court in K.C. Sareen case (supra) even on facts. This Court in the said held (SCC p. 589, para 11) :
"11. The legal position, therefore, is this : though the power to suspend an order of conviction, apart from the order of sentence, is not alien to Section 389(1) of the Code, its exercise should be limited to very exceptional cases. Merely because the convicted person files an appeal in challenge of the conviction the court should not suspend the operation of the order of conviction. The court has a duty to look at all aspects including the ramifications of keeping such conviction in abeyance. It is in the light of the above legal position that we have to examine the question as to what should be the position when a public servant is convicted of an offence under the PC Act. No doubt when the appellate court admits the appeal filed in challenge of the conviction and sentence for the offence under the PC Act, the superior court should normally suspend the sentence of imprisonment until disposal of the appeal, because refusal thereof would render the very appeal otiose unless such appeal could be heard soon after the filing of the appeal. But suspension of conviction of the offence under the PC Act, dehors the sentence of imprisonment as a sequel thereto, is a different matter. " (Emphasis supplied)
Accordingly, learned APP urged that the present Application bears no substance and the same is devoid of any merits, and therefore, same be dismissed.
12. Taking into account the above mentioned facts and circumstances of the case, and the principle underlying the provision of Section 389 of the Code of Criminal Procedure, and more particularly, Section 16(1)(a) of the Act of 1965, in respect of disqualification for becoming a Councillor, and also considering rival submissions advanced by the learned Counsel for the parties, anxiously, as well as considering the judicial pronouncements cited by the learned Counsel for the parties, carefully, at the outset, it is material to note that the very embargo of Section 16(1)(a) of the Act of 1965, in respect of disqualification for becoming Councillor, is on the count of conviction and sentence of imprisonment to a person, by a Court in India, for not less than two years, and the legislature in its wisdom has not contemplated the said disqualification for merely on registration of offences or because of pendency of criminal cases or on the basis of criminal background of the incumbent. In the present case, since the applicant nos.1 and 2 have been convicted and sentenced to imprisonment for a period of more than two years, as mentioned herein above, they have approached this Court by filing the present Application for suspension of conviction, to enable them to contest the elections. Moreover, the applicants have pointed out and drawn consequences which may arise if the conviction is not stayed, that they would be prevented from contesting the ensuing elections of Bhusawal Municipal Council and they would be deprived of the said opportunity, and if later on applicants succeed in the appeal filed by them, the damage done to them cannot be undone at subsequent date, and therefore, to avoid such irreversible situation causing injustice to the applicants, present Application deserves to be allowed.
13. In the context of the arguments canvassed by the learned APP, in respect of the criminal background of the applicants, it is necessary to mention here, that out of the alleged 23 offences against applicant no.1, applicant no.1 has been acquitted or the matter has been compromised in about 10 offences, as pointed out by the learned Counsel for the applicants. Apart from that, as mentioned herein above, Section 16(1)(a) of the Act of 1965 contemplates disqualification of the Councillor on the conviction and sentence not less than 2 years and not on the count of registration of the criminal offence against the Councillor, and as observed by the Hon. Apex Court in the case of Navjot Singh Sidhu v. State of Punjab and another (supra), "the Courts have to interpret the law as it stands and not on considerations which may be perceived to be morally more correct or ethical". No doubt, power to stay the conviction has to (21) Cri. Application No. 5011 of 2011
be exercised only in exceptional circumstances where failure to stay the conviction would lead to injustice and irreversible consequences, and suspension of conviction is not the rule, but in an exception to be resorted to in rare cases depending upon facts of each case. In the instant case, it cannot be overlooked that the alleged weapon was not found and there are also infirmities and discrepancies in the prosecution case, and hence, after re- appreciating the evidence in Appeal, if this Court sets aside the judgment and order of conviction and sentence rendered by the learned trial court, in the appeal filed by the applicants, then in that scenario, the damage done to the applicants, depriving them from contesting the elections of Municipal Council, cannot be undone later on and they would suffer irreparable loss and injustice of the irreversible consequences, and therefore, considering the pros and cons of the matter, it appears that the applicants have made out a case for the grant of present Application.
14. Besides, it is material to note that by grant of present Application, mere opportunity is being extended to the applicants to fill in the nomination forms within prescribed time and thereafter there are various possibilities that either applicants may withdraw from election considering the situation and circumstances, or applicants may win the elections, or applicants may suffer defeat in the elections, if public at large rejects them. Hence, let the public at large in the concerned electorate decide whether their Councillor would be suitable representative or the representative having criminal background, and hence the said choice be left to the concerned electorate.
15. Apart from that, the ruling cited by learned APP pertains to the offence under Prevention of Corruption Act and there is no doubt, that the ratio laid down therein is perfectly applicable for the offences under Prevention of Corruption Act, but the instant case is related to Indian Penal Code offences, and it would not be of any aid and assistance to the case of prosecution, whereas judicial pronouncement of the Hon. Supreme Court in the case of Navjot Singh Sidhu Vs. State of Punjab and another, cited by learned Counsel for the applicants (supra), would be applicable on all fours in the instant case.
16. However, while granting the present Application, it would be appropriate to issue directions to conduct hearing of Criminal Appeal No. 449 of 2011 expeditiously.
17. In the result, present Criminal Application is allowed in terms of prayer clause "A" thereof, and conviction imposed upon the applicants, by judgment and order dated 8th August 2011, rendered by the learned Additional Sessions Judge, Jalgaon, in Sessions Case No. 73/2001, stands suspended, pending hearing and final disposal of Criminal Appeal No. 449 of 2011. It is also made clear that the said suspension of conviction directed by this order shall be subject to the outcome of Criminal Appeal No. 449 of 2011, and hearing of Criminal Appeal No. 449 of 2011 stands expedited and Registrar (Judicial), High Court Bench at Aurangabad is directed to take suitable steps for expeditious preparation of the paper book in Criminal Appeal No. 449 of 2011, and after preparation of the paper book, the appeal be listed before the Court for final hearing, and the said exercise be completed within a period of six weeks from today, and present Criminal Application is disposed of finally.
18. Certified copy expedited.