2023 (12) TMI 1456 - SC - Indian Laws

Appellate Courts Can Suspend Sentences with Written Reasons; Conviction with Moral Turpitude May Deny Bail

Afjal Ansari Versus State of UP

The SC held that the appellate court has the power to suspend a sentence and grant bail but must provide written reasons, considering the case's peculiar ... Suspension of Appellant’s sentence and grant of bail - declining of stay on conviction - disqualification from membership of the Parliament - right to represent constituency - parameters to be considered for the suspension of conviction under Section 389(1) of the CrPC - prima facie case for the suspension of conviction under Section 389(1) of the CrPC or not - conviction of an offence involving ‘moral turpitude’ can be a valid ground to deny suspension of conviction under Section 389(1) of the CrPC or not. As per SURYA KANT, J. HELD 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, [2006 (11) TMI 652 - SUPREME COURT]. 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. This case pertains to (a) the Appellant’s disqualification as a Member of the Lok Sabha under Section 8(3) of the RPA, which disentitles a person who has been convicted and sentenced for a period exceeding two years, from holding office or contesting elections; and (b) the State’s pursuit of a conviction under Section 3(1) of the UP Gangsters Act, which penalises individuals labelled as a ‘gangster’ for participation in organised crime and engaging in anti-social activities. While the pending appeal raises significant legal and factual issues, it is exigent that the Appellant’s future not be left hanging in the balance solely due to the said conviction. In such instances, where the Appellant’s disqualification and the State’s criminal proceedings intersect, it becomes incumbent upon the Court in which the appeal is pending, to hear the matter out of turn and expeditiously adjudicate the same. The Ghazipur Parliamentary Constituency shall not be notified for bye-election, in terms of Section 151 of the RPA, till the decision of the Appellant’s criminal appeal by the High Court - The Appellant shall, however, not be entitled to participate in the proceedings of the House. He shall also not have the right to cast his vote in the House or to draw any perks or monetary benefits. The Registrar General of the High Court is directed to put up this order before Hon’ble The Chief Justice of the High Court for immediate enlisting of the Criminal Appeal No. 5295 / 2023 with a request to the appropriate Bench, for an out of turn hearing and adjudication of the said appeal by 30.06.2024. The Appellant is directed to extend full cooperation to the High Court in this regard, failing which, this order shall be liable to variance. As per DIPANKAR DATTA, J. HELD THAT:- The incidents on the occurrence of which a member of Parliament could stand disqualified ‘by the Constitution’ are specified in clauses (a) to (d) of Article 102(1) whereas a disqualification owing to conviction recorded by a competent court of law is a measure ‘under the Constitution’ read with the RoP Act. If a disqualification ‘by the Constitution’ or ‘under the Constitution’ is contrasted with disqualification incurred by a convict to continue as holders of public offices or the office of a director of a company ‘by a statute’, to wit, the NGT Act, the Human Rights Act or the Companies Act, or to continue in service either by Article 311 of the Constitution or by the discipline rules of public institutions, for eg., the one in K.C. Sareen [2001 (8) TMI 1379 - SUPREME COURT] and Balakrishna Dattatarya Kumbhar [2012 (10) TMI 1283 - SUPREME COURT], there can be no doubt that the standard for staying/suspending the former disqualification (brought about by or under the Constitution) has to be pegged at a level higher than the latter disqualification (brought about by the statute/rule) not only because of the Constitutional scheme but also because of the position of trust and confidence that a parliamentarian holds. If a member of the Lok Sabha is convicted and hence stands disqualified from membership, it is bound to create a vacuum and the electorate he represents would stand unrepresented. This is not peculiar to any one member but common to all members suffering conviction if at all. Creation of a vacuum is envisaged by the Constitution as well as the RoP Act, with a corresponding obligation to fill up the vacancy caused in the manner authorised by law. The remedy which was earlier provided to a disqualified member [sub-section (4) of section 8, RoP Act] no longer survives. Extraordinary circumstances put forth by an elected member suffering a disqualification and urging consideration of his case for staying a conviction must necessarily involve a level of exceptionality which is beyond the routine. In any case, the lack of representation of the electorate stemming from the vacancy can always be addressed by organizing an immediate by-election. Hence, it seems to be debatable whether mere lack of representation of the electorate should at all be deemed to be an exceptional reason for stay of a conviction or suspension of execution of a conviction. The present case, as in K.C. Sareen [2001 (8) TMI 1379 - SUPREME COURT] and Balakrishna Dattatraya Kumbhar [2012 (10) TMI 1283 - SUPREME COURT], beckons that stay of conviction of the appellant in the circumstances as were presented before the High Court as well as before this Court, could have serious aspersions cast on the integrity of the democratic institutions. Such a power of stay, as and when exercised by the courts, would carry with it the obligation of being extremely circumspect and abundantly cautious necessitating consideration in a judicious manner of all pleaded facts and circumstances. Notwithstanding that the appellant is a (disqualified) member of the Lok Sabha and without the essential pleadings, he cannot legitimately urge that holder of one public office is different from the holder of another public office like the ones referred to above and, therefore, he is entitled to any special treatment. If at all one was to go down that rabbit hole, then the higher burden resting on the shoulders of elected representatives would likely not serve the appellant’s case. Thus, inadequate and insufficient pleadings, as assigned by the High Court, is considered a valid ground for upholding the impugned order. The law is well-settled that one needs to plead irreversible consequences to have the conviction stayed, and by extension, get the disqualification lifted. There are 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. ISSUES: What are the parameters for suspension of conviction under Section 389(1) of the Code of Criminal Procedure, 1973 (CrPC)?Whether a prima facie case exists for suspension of conviction under Section 389(1) of the CrPC'Whether conviction for an offence involving 'moral turpitude' can justify denial of suspension of conviction under Section 389(1) of the CrPC'What is the legal effect of disqualification under Section 8 of the Representation of People's Act, 1951 (RPA) consequent to conviction, and its interplay with suspension of conviction'Whether the right to represent a constituency or contest elections is a Fundamental Right or a statutory right subject to limitations'What is the scope of the appellate court's power under Section 389(1) CrPC to stay conviction and/or suspend execution of sentence'What constitutes 'exceptional circumstances' warranting suspension of conviction in the context of elected representatives? RULINGS / HOLDINGS: The appellate court under Section 389(1) CrPC has the power to suspend execution of sentence or order of conviction and, in appropriate cases, to stay the conviction itself, but such power is to be exercised only in 'rare cases' or 'exceptional circumstances' where failure to stay would cause 'injustice and irreversible consequences.'The mere fact of disqualification under Section 8 of the RPA consequent to conviction does not automatically warrant suspension of conviction; the appellant must specifically plead and prove 'irreversible consequences' and exceptional circumstances to obtain such relief.The right to elect or be elected is a statutory right and not a Fundamental Right; it is subject to statutory limitations and does not create an absolute entitlement to representation or participation in elections.Conviction involving 'moral turpitude' is a relevant factor and courts must interpret the law as it stands, without substituting moral or ethical considerations for statutory provisions; courts must balance societal interest in electoral integrity with individual rights.The suspension of execution of sentence or order appealed against under Section 389(1) CrPC does not amount to suspension or stay of conviction; a distinct and specific prayer for stay of conviction is required.Failure to plead specific consequences likely to befall the convict if conviction is not stayed is a valid ground for denial of stay of conviction.In the present case, the conviction was based primarily on a gang chart referencing an earlier FIR in which the appellant was acquitted; the High Court erred in refusing to stay the conviction given the potential 'irreversible consequences' of disqualification and loss of representation.However, the appellant's failure to specifically pray for stay of conviction before the High Court and to plead irreversible consequences militates against granting a stay of conviction as a matter of routine.The electorate's right to representation does not justify routine suspension of conviction, especially where the statutory scheme mandates disqualification upon conviction and where elections can fill vacancies.The High Court's partial grant of relief by suspending execution of sentence and granting bail but refusing stay of conviction was 'largely sound' but the refusal to stay conviction was not justified on the facts.Pending appeal, suspension of conviction was granted subject to conditions, including that the constituency not be notified for by-election and that the appellant not participate in House proceedings or receive benefits.The High Court was directed to expedite hearing of the appeal to avoid prolonged uncertainty.The dissenting opinion held that the appellant failed to demonstrate exceptional circumstances or plead irreversible consequences and that the statutory scheme and public policy considerations weigh heavily against suspension of conviction, especially for offences under the UP Gangsters Act involving serious crimes.The dissent emphasized that the power to stay conviction must be exercised with 'great circumspection and caution' and that no preferential treatment is to be accorded to parliamentarians over ordinary citizens in this context.The dissent rejected the appellant's reliance on the right to representation and the pending MPLAD projects as insufficient to justify stay of conviction.The dissent concluded that the appeal should be dismissed and the High Court's refusal to stay conviction upheld. RATIONALE: The Court applied the statutory framework of Section 389(1) CrPC, which empowers appellate courts to suspend execution of sentence or order appealed against 'for reasons to be recorded in writing,' and judicial precedents interpreting this power to include, in exceptional cases, stay of conviction itself.Precedents such as Rama Narang v. Ramesh Narang, Ravikant S. Patil v. Sarvabhouma S. Bagali, and Lok Prahari v. Election Commission clarified that suspension of conviction is an exceptional remedy requiring demonstration of 'irreversible consequences' and 'injustice' that cannot be compensated later.The Court emphasized that suspension of conviction is not the rule but the exception and must be based on specific pleadings and reasons, including the consequences flowing from disqualification under Section 8 of the RPA.The Court considered the constitutional scheme under Articles 102 and 191, which empower Parliament to legislate disqualifications for membership, and the statutory scheme under Section 8 of the RPA, which mandates disqualification upon conviction and sentence of two years or more.The Court acknowledged the societal interest in preventing criminalization of politics and maintaining integrity in electoral processes, referencing decisions such as Lily Thomas v. Union of India and Public Interest Foundation v. Union of India.The Court balanced the electorate's right to representation with the need to uphold the rule of law and statutory disqualification provisions, noting that vacancies caused by disqualification are to be filled by by-elections as per law.The Court distinguished between suspension of execution of sentence and stay of conviction, underscoring the necessity of a specific prayer and reasons for the latter.The dissenting opinion relied on constitutional principles, statutory mandates, and public policy considerations emphasizing accountability and integrity of public offices, cautioning against undue relaxation of disqualification rules for elected representatives.The dissent highlighted the importance of equal treatment before law and rejected arguments based on the appellant's status or speculative electoral consequences absent concrete pleadings.The Court directed the High Court to expedite hearing of the appeal to avoid prolonged uncertainty and injustice.