TaxTMI 
TaxTMI 
2023 (12) TMI 1456
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....d 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. FACTS: 3. At this juncture, it is imperative to delve into the factual matrix to set out the context of the present proceedings. 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 Husbandr....
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....amages 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....
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....ut 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. CONTENTIONS OF PARTIES 4. We have heard Learned Senior Counsel for the parties at a considerable length and perused the documents brought on record. 5. Dr. Abhishek Manu Singhvi, learned Senior Counsel for the Appellant, argued that the High Court erred in not granting suspension of the conviction, especially in light of the fact that disqualification from membership of the Parliament, leads to irreversible consequences such as: (a) the loss of the next six months as Member of the Parliament in the Lok Sabha; and (b) disqualification from contesting elections for a total period of ten years. He further contended that such a disqualification would not only result in the Appellant losing his right to represent his constituency but would also rob his constituency of its representation before the Parliament. Learned Senior Counsel also highlighted the infirmities in the impugned order of the High Court in denying stay of conviction, along with the material contradictions in the p....
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.... 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." 11. 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....
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....the sentence might render the very appeal otiose. Although the High Court stayed the execution of the sentence and granted bail to the Appellant, it refused to suspend the conviction itself. The High Court justified such a recourse, after making reference to a multitude of judgments from this Court. While the impugned judgment remains largely sound in its approach to affording relief in terms of bail and staying the sentence, we are unable to agree, partly, with its approach in declining the suspension of conviction, for those very reasons. 15. 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 acquitt....
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....would not only face disqualification as a Member of the Eighteenth Lok Sabha but would also incur disqualification to participate in future elections for Parliamentary or State Legislative seats. Taking into consideration the consistent legal position adopted in this regard, the severity of these outcomes underscores the urgency and gravity of the matter at hand. 19. In this context it is crucial that we also address the final issue which is before us for consideration, i.e., the question of relevance of 'moral turpitude' in the present circumstances. While contemplating to invoke the concept of 'moral turpitude' as a decisive factor in granting or withholding the suspension of conviction for an individual, there is a resounding imperative to address the issue of depoliticising criminality. There has been increasing clamour to decriminalise polity and hold elected representatives accountable for their criminal antecedents. It is a hard truth that persons with a criminal background are potential threats to the very idea of democracy, since they often resort to criminal means to succeed in elections and other ventures. In the present context too, substantial doubt has been cast up....
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....lections; 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. CONCLUSION AND DIRECTIONS 24. 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: i. 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; ii. The Appellant shall, however, not be entitled to participate in the proc....
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....ction 389(1) of the Code of Criminal Procedure, 1973 ("Cr. PC", hereafter) filed by the appellant, in connection with an appeal under section 374(2) [Criminal Appeal No. 5295/2023] thereof, was partly allowed. The sole question that emerges for a decision on this appeal is whether the High Court was justified in spurning the prayer of the appellant for stay of the order appealed against while it proceeded to grant his prayer for suspension of execution of sentence, in exercise of power conferred by section 389(1) of the Cr. PC. 3. The appellant is a member of Parliament, having been elected to the 17th Lok Sabha from Ghazipur constituency in 2019. He suffered a conviction under section 3(1) of the Uttar Pradesh Gangsters and Anti- Social Activities (Prevention) Act, 1986 ("Gangsters Act", hereafter) vide judgment of the Special MP/MLA Court, Ghazipur ("Trial Court", hereafter) dated 29th April, 2023 [Special Sessions Trial No. 980/2012], consequent whereto he was sentenced to four years imprisonment together with a fine of Rupees One lakh. Aggrieved thereby, he approached the High Court for suspension of execution of the sentence as well as for suspension of the order ....
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....ant had made out a case of suspension of execution of sentence but could not fulfil the conditions for staying his conviction. 6. Dr. Abhishek Manu Singhvi, learned senior counsel appearing for the appellant, assailed the impugned order by advancing the following submissions: a. The failure to stay the conviction would inflict irreparable harm to the appellant. There is only a primary conviction, against which an appeal has been carried to the High Court. Having regard to the huge pendency of appeals in the High Court, the said appeal is not likely to be heard in the near future resulting in the appellant being deprived of engaging in electoral politics for around 10 years. The case is at the stage of first appeal, and refusal to stay the conviction of the appellant at this stage would be an onerous disproportionate limitation. b. The appellant has been a member of the Uttar Pradesh Legislative Assembly five times and a member of the Lok Sabha twice. He has not been convicted for any offence in the past, much less any heinous offence, apart from the conviction under consideration. In a particular case, viz. Case Crime No. 589/2005, the appellant has been a....
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.... learned Additional Solicitor General appearing for the respondent, supported the impugned judgment and order and advanced the following contentions: a. The standards for suspension of sentence and stay of conviction are different. Stay of conviction can only be ordered by the court when exceptional circumstances are shown to exist. Dissimilar to suspension of execution of sentence, it is not a matter of practice to stay the conviction at the stage of first appeal. No exceptional circumstance having been shown to exist, the High Court has passed a reasoned judgment that ought not to be interfered on sparse grounds. b. The conviction in the present case is under the Gangsters Act which is of a serious nature and stay of conviction in this case would not be in consonance with the settled principles laid down by this Court in several of its decisions. c. The appellant is a notorious criminal, with numerous criminal antecedents. Reference was made to a list in this regard forming part of the reply of the respondent. d. The acquittal in Case Crime No. 589/2005 could be attributed to witness intimidation by the appellant as most witnesses in that ....
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....mmediately thereafter, a criminal appeal was preferred by the appellant challenging the judgment of conviction and order of sentence. Pending the appeal, the Bombay High Court granted stay of the execution of the sentence. Fresh elections to the Karnataka Legislative Assembly having been notified in the early part of 2004, the appellant once again moved the Bombay High Court and obtained an order dated 26th March, 2004 staying his conviction. The appellant having filed his nomination by the last date, i.e., 31st March, 2004, objection was lodged by the respondent which was turned down. In the election that followed, the appellant came to be elected. Upon an election petition being filed by the respondent, the same succeeded before the Karnataka High Court on the ground that the appellant stood disqualified in terms of provisions contained in section 8 of the RoP Act to contest an election. The principle which is laid down by this decision is that stay of conviction is the exception, and to avail that exception the appellant will have to show irreversible consequence and injustice. The operative part is reproduced hereinbelow: "15. It deserves to be clarified that an order ....
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....ion under section 389(1) thereof, stay of operation of the impugned order was directed and he was granted bail. Despite such conviction resulting in the appellant's disqualification under section 267 of the Companies Act, 1956 to remain as the Managing Director, he continued to attend Board meetings of the company in question. Resolutions adopted in meetings attended by the appellant were challenged in a Company Petition filed before the Bombay High Court by the respondent, which was subsequently withdrawn. There were other proceedings between the parties before the Company Law Board, to which reference in detail need not be made. Ultimately a suit came to be instituted before the Bombay High Court by the appellant and others and a learned single Judge granted interim relief which enabled the appellant to continue as the Managing Director. An appeal was carried therefrom to the Division Bench, which was partly allowed. That part of the impugned order enabling the appellant to continue as the Managing Director was set aside. This order was then challenged before this Court. Inter alia, what fell for examination in that case was whether the power under section 389(1) of the Cr. PC co....
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.... no reason why we should give a narrow meaning to Section 389(1) of the Code to debar the court from granting an order to that effect in a fit case. The appeal under Section 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 Section 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 Section 389(1) of the Code not to 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 Section 482 of the Code if the power was not to be found in Section 389(1) of the Code. We are, therefore, of the opinion that the Division Bench of the High Court of Bombay was not right in holding that the Delhi High Court could not have exercised jurisdiction under Section 482 of the Code if it was confronted with a situation of there being no other provision in the Code for staying the o....
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....se of such power, it was also held that 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 Parliament or the Legislative Assembly the order of the conviction should not be suspended. It was reminded that 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. 15. On behalf of the respondent, learned ASG cited Sanjay Dutt v. State of Maharashtra [(2009) 5 SCC 787] to contend that a mere bar to contest elections would not be sufficient ground to stay the conviction. The relevant portion of the decision is excerpted below: "12. Despite all these favourable circumstances, we do not think that this is a fit case where conviction and sentence could be suspended so that the bar under Section 8 (3) of the Representation of People Act, 1951 will not operate against the petitioner. Law prohibits any person who has been convicted of any offence and sentenced to imprisonment for not less than two years from contesting the election and such person shall be disqualified for a further period of six years since h....
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.... [(2018) 18 SCC 114] was cited by Dr. Singhvi. There, a society registered under the Societies Registration Act, 1860 invoked the Public Interest Litigation jurisdiction of this Court under Article 32 of the Constitution seeking, inter alia, a declaratory relief that since the law does not provide for stay of conviction, even in case of stay of conviction by the appellate court for an offence attracting disqualification under section 8 of the RoP Act, any such stay order does not have the effect of wiping out the disqualification and reviving the membership with retrospective effect and consequently, the seat of the member concerned is deemed to have become vacant with effect from the date of conviction in terms of Articles 101(3)(a) and 190(3)(a) of the Constitution. This Court, having considered Rama Narang (supra), Lily Thomas (supra), Navjot Singh Sidhu (supra) and Ravikant S. Patil (supra), expounded the position of law as follows: "16. These decisions have settled the position on the effect of an order of an appellate court staying a conviction pending the appeal. Upon the stay of a conviction under Section 389 CrPC, the disqualification under Section 8 will not oper....
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....nd 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. 20. Finally, the recent decision of this Court in Rahul Gandhi v. Purnesh Ishwarbhai Modi & Anr. [2023 SCC OnLine SC 929] was placed on behalf of the appellant wherein this Court observed that section 8(3) of the RoP Act has far-reaching consequences, as it not only affects the right of the appellant to continue in public life but also is a detriment to the right of the electorate whic....
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.... the order of conviction during the pendency of the appeal even if the sentence of imprisonment is suspended. It would be a sublime public policy that the convicted public servant is kept under disability of the conviction in spite of keeping the sentence of imprisonment in abeyance till the disposal of the appeal or revision." (emphasis supplied) 22. In order to understand the manner in which the power under section 389(1) of the Cr. PC could be exercised, reference to the decision of this Court in State of Maharashtra v. Balakrishna Dattatraya Kumbhar [(2012) 12 SCC 384] would not be out of place. Faced with a circumstance surrounding the suspension of conviction of a senior excise officer by the Bombay High Court, this Court held that the conviction of public servants in corruption cases cannot be suspended merely because they would otherwise lose their jobs. This is what was also observed in paragraph 15 of the decision: "15. Thus, in view of the aforesaid discussion, a clear picture emerges to the effect that the appellate court in an exceptional case, may put the conviction in abeyance along with the sentence, but such power must be exercised with great circums....
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....ressly say so. This, in all probability, is because the inherent power under section 482 is the exclusive preserve of the high courts and not any other court exercising appellate power; hence, an "Appellate Court", not being a high court, would be denuded of the power to stay a conviction under section 482 in case such a prayer were made during the pendency of an appeal before it (the appellate court). 26. It is considered most appropriate, at this stage, to refer to the decision of the Constitution Bench of this Court in K. Prabhakaran v. P. Jayarajan [(2005) 1 SCC 754]. In a somewhat different context, this Court did have the occasion to consider section 389, Cr. PC and made a pertinent observation as to what is permissible thereunder. The said observation reads: "42. *** A court of appeal is empowered under Section 389 to order that pending an appeal by a convicted person 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 bond. What is suspended is not the conviction or sentence; it is only the execution of the sentence or order which is suspended. It is suspended and not obliterated.....
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..... The order of the high court was the subject matter of the appeal. The sole question falling for decision was whether the order passed on 31st May, 2002 by the appellate court, whereby the conviction and sentence of the appellant was suspended, would amount to staying the conviction or not. This Court, while dismissing the appeal, perused the appellant's application under section 389, Cr. PC and found the same to be a routine application for suspension of sentence without any prayer seeking stay of conviction. Rama Narang (supra) was read to lay down the law that section 389(1), Cr. PC empowers the appellate court to stay the conviction also but that, suspension of the order appealed against would not amount to staying the conviction. Referring to Ravikant S. Patil (supra), it was observed that there an application for stay of conviction was specifically filed specifying the consequences if the conviction was not stayed and that such fact was taken into consideration while holding in that case that the conviction was specifically stayed, which was not the case here. Suspension, the Court held, did not mean the stay of the conviction. It was held that if the incumbent had been vigi....
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....i 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. 30. 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 ....
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....undoubtedly the RoP Act because of the same being anchored in the concept of the social contract and the rule of law. The Constitution is a social contract between the government and its citizens, where the State derives its authority from the consent of the governed. In this context, the RoP Act stands as a pivotal instrument that translates the theoretical underpinnings of the social contract into practical reality. It establishes the legal framework for conducting elections, ensuring that every citizen has a fair and equal opportunity to exercise his right to vote and participate in the political process. By regulating the qualifications and disqualifications of candidates, delimiting constituencies, and overseeing the electoral machinery, the RoP Act - a complete code in itself - reinforces the rule of law and upholds the principles of justice, fairness and transparency. It symbolizes the nexus between the constitutional ideals of inclusive and participatory democracy and the constitutional concept of "We the People" by facilitating the active participation of citizens in the democratic process. The RoP Act, thus, has a pervasive impact on the lives of all citizens, transcends ....
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....rder Act, 1949, the petitioner applied for a mandamus or any other appropriate writ to declare and enforce his right to attend the sittings of the Legislative Assembly then in progress, either freely or with such restrictions as may be reasonably imposed. It was held that a member of the Legislative Assembly who is detained in prison cannot claim any superior right to participate in the session of the Assembly. A passage from the decision, which was delivered at the dawn of the Constitution, gives an insight to the pillars underground on which the Constitution is founded and whether placing the petitioner under detention, necessarily resulting in his absence from assembly sessions, could put in jeopardy any basis of the Constitution. The relevant passage is quoted below: "7. We have tried to follow Mr. Kumaramangalam in his underground exploration of the foundations of the Constitution. But we cannot see how they could be placed in jeopardy by MLAs under the lawful preventive detention being (not?) permitted while under such detention to attend the sittings of the House. We are able to discern two main massive and indispensable pillars underground on which the Constitution....
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....ing in jeopardy the second pillar to which we adverted. That contention is wholly irrelevant for the purposes of this petition, which proceeds on the basis that detention is lawful, bona fide and for proper grounds. 8. *** We see no grounds for any differentiation in treatment as between a member of a Legislative Assembly detenu and any other ordinary detenu in the application of these rules...." (emphasis supplied) 37. A brief survey of the Constituent Assembly Debates would also aptly lead to the original intention of our lawmakers that culminated in the enactment of the RoP Act. A perusal of the Debates reveals the deliberate exclusion of the contingencies under Article 102 (Article 83 of the Draft Constitution), which was left for the new Parliament to decide. An amendment was moved by Prof. K.T. Shah seeking explicit disqualification of those members who are convicted of any offence of (a) treason against the sovereignty, security, or integrity of the State, (b) bribery and corruption, and (c) any offence involving moral turpitude, and liable to a maximum punishment of two years' rigorous imprisonment. Reverting to the amendment, Mr. H.V. Kamath responded thus [....
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....rful wing of governance. Persons with criminal background do pollute the process of election as they do not have many a hold barred and have no reservation from indulging in criminality to win success at an election." (emphasis supplied) 41. In Public Interest Foundation and others v. Union of India and Another [(2019) 3 SCC 224], another 5-Judge Constitution Bench of this Court expressed anguish on the criminalisation of politics and observed thus: "118. *** A time has come that Parliament must make law to ensure that persons facing serious criminal cases do not enter into the political stream. It is one thing to take cover under the presumption of innocence of the accused but it is equally imperative that persons who enter public life and participate in law making should be above any kind of serious criminal allegation. It is true that false cases are foisted on prospective candidates, but the same can be addressed by Parliament through appropriate legislation. The nation eagerly waits for such legislation, for the society has a legitimate expectation to be governed by proper constitutional governance. The voters cry for systematic sustenance of constitutionalism. ....
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....nrolled in terms of the Advocates Act, 1961, stand the risk of being removed from public offices held by them or removed from the rolls of advocates upon conviction being recorded on a criminal charge involving moral turpitude. The precedents of this Court, to which reference has been made in course of the foregoing discussion, do lay down the principle that the likelihood of losing his livelihood (a facet of the Fundamental Right to Life) by the appealing convict if the conviction were not stayed during the pendency of the appeal is not a good enough ground for obtaining such relief. It could be so that upon the conviction being set aside, status quo ante may be restored, however, this might not be acceptable to those principled few who put their reputation at a pedestal higher than pecuniary gains and rue the days of survival with the social stigma attached to such a removal. Restoring the status quo ante in all cases, therefore, may not be the best available solution. 45. How can one forget the second proviso to clause (2) of Article 311 of the Constitution ordaining dismissal/removal/reduction in rank of a person who is a member of a civil service or is a civil post holder i....
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.... be different in a scenario of automatic disqualification as per section 8 of the RoP Act? In a case of proved guilt resulting in conviction recorded by a competent court, the presumption of innocence till proved guilty has no place and loses its sway. The fact that the court is approached by a parliamentarian/legislator, by itself, should not be viewed with such importance and indispensability that his status should tilt the scales in his favour. Would it be fair that a convict, no matter how mighty he is and whatever position he holds, gets a preferential treatment as compared to an under-trial? Should the courts go out of the way to stay the conviction or suspend execution of the order under appeal when no Fundamental or other Constitutional right of the convict would be abrogated if a stay were not granted? To our mind, the answers, as traced through the aforesaid legal and constitutional framework, would unerringly be in the negative. All the courts of law are bound by the preambular promise of the Constitution of India to provide equal treatment to one and all before them if they are similarly placed. Any differentiation in approach and outcome ought to stand on solid foundat....
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....ands 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. 52. A summary of the above discussion is that allowing a convicted parliamentarian to attend ....
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.... much so that irreversible harm and injustice is inevitable. 55. It is no doubt true that if a judgment of conviction is outrageously in defiance of reason and logic and appears to be unsustainable without elaborate arguments being required to be advanced to satisfy the Court in that behalf, the same could afford a ground for suspending the execution of the conviction or, in a rare situation, even for staying the conviction. In the latter case too, however, the infirmities in the judgment of conviction per se would not be enough to justify a stay. The convict seeking stay is required not only to make a distinct prayer for stay but he is also obliged, in view of the long line of precedents, to plead irreversible consequences that could befall him if the stay were not granted. Such pleaded consequences would then have to be examined with a view to ascertain whether something very harmful or untoward or serious would happen, which is irreversible. At the same time, the court ought to be careful not to express a view which even directly or indirectly has an effect on the decision-making process at the time the appeal is decided. However, the present is not such a case where at this ....
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....sent a constituency cannot be construed as a Fundamental or an absolute right. In Ashish Shelar v. Maharashtra Legislative Assembly [(2022) 12 SCC 273], another 3- Judge Bench of this Court, dealing with the suspension of certain members of the Legislative Assembly of Maharashtra, observed thus: "60....It is true that right to vote and be represented is integral to our democratic process and it is not an absolute right. Indeed, the constituency cannot have any right to be represented by a disqualified or expelled Member." 60. As the precedents on similar controversies would reveal, this is not the solitary instance of a (disqualified) member of the Lok Sabha who, in a bid to escape from the operation of law, is seeking refuge in purported irreversible consequences to be suffered by his constituents. It is unfortunate that in a democracy of this magnitude, criminalisation has always been a ubiquitous parasite affecting democratic principles and ideals. In this light, this Court has had the occasion to decide matters involving myriad forms of criminalisation of politics; however, in no manner can the mandate of the people be pitted against that of a statute simply to null....
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....- of the conviction and sentence imposed by the Trial Court. By the time the appellant approached the High Court with the application under section 389(1), Cr. PC sometime in the second week of May, 2023, his disqualification had taken effect pursuant to the Notification of the Lok Sabha Secretariat being published in the Gazette of India dated 1st May, 2023. In view of the observation of the Constitution Bench in K. Prabhakaran (supra), the High Court having been approached could have, exercising jurisdiction under section 389(1), only suspended execution of the conviction or the order appealed against. Even if the High Court exercised the jurisdiction under section 389(1) or its inherent jurisdiction under section 482, Cr. PC to stay the conviction, the disqualification that had taken effect and notified vide the Gazette Notification would continue to remain unaffected unless the conviction itself was stayed. Realising that the appellant did not specifically pray for stay of conviction before the High Court and that a stay of the notification is essential, wise counsel must have dawned on the appellant, for, it is found that a challenge to such a notification has been laid for th....
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....conviction. 65. The appellant is an accused in a couple of criminal cases and his conduct is either under investigation or he is standing trial. Not a single mitigating factor was shown by the appellant that could lend support to his case. In such circumstances, can it be concluded that the appellant's case qualifies as "exceptional", thus justifying a stay of the conviction? 66. The present case, as in K.C. Sareen (supra) and Balakrishna Dattatraya Kumbhar (supra), 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....
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....right of the appellant to represent a constituency or that of a constituency to be represented by the appellant is not a Constitutional right under Article 326 of the Constitution, as faintly submitted on behalf of the appellant in the written note of arguments. Needless to say, Article 326, which is an integral part of Part XV of the Constitution dealing with 'Elections', declares that the election to the Lok Sabha and the Legislative Assembly shall be on the basis of universal adult suffrage. What the laws for conducting elections provide is the manner and mode of elections as well as the conditions and modalities which a prospective candidate is required to follow and abide by. It appears from the rejoinder filed by the wife of the appellant to the counter affidavit of the respondent before the High Court that the appellant is a septuagenarian, suffering from diverse ailments. The health condition of the appellant having been cited as a ground for grant of bail, it does cast a doubt on his ability to represent a whole constituency coupled with the undeniable circumstance that the appellant will only advance in age with time. Such being the case pleaded before the High Court and ....
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.... reasoning adopted by the 2-Judge Bench in Naranbhai Bhikhabhai Kachchadia (supra) resulting in the ultimate relief that was granted, I am minded to hold, turned more on the facts of the case rather than expositing a principle of law worthy of being followed as a precedent. Thus, the said decision falls short of providing appropriate guidance. 73. What remains is the claim of pending projects under the MPLAD Scheme. 74. One may suspect that, for no cause or perhaps for no good cause, the appellant deemed it fit not to make any mention of any project, far less specific mention, pertaining to the MPLAD Scheme before the High Court. Interestingly, although Dr. Singhvi raised this point in course of his oral arguments, the same is conspicuous by its absence in the written note of arguments. Importantly, attention was not drawn to any provision in the relevant MPLAD Scheme which is intended to address any contingency having regard to the appellant's seat prematurely falling vacant by reason of his conviction. Absolutely no explanation was proffered by the appellant as to how any project initiated by him under the MPLAD Scheme would suffer owing to his absence, especially in the su....
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...., this consideration might serve as a compelling reason to grant a stay of conviction. However, when a parliamentarian/legislator seeks a stay of conviction, he shoulders an additional responsibility of demonstrating how his constituents are likely to endure adverse consequences if the conviction is not stayed. A parliamentarian/legislator cannot be allowed to obtain a 'double advantage' where he implores the Court for a stay of conviction being a parliamentarian/legislator while simultaneously failing to provide full disclosure of consequences regardless of what the reasons are, whether due to inadvertence, negligence, or mistake. Failing to do the same, the law should be allowed to take its own course. 79. As the court of last resort, it is the bounden duty of this Court to uphold the rule of law which entails equality before the law and equal subjection of all classes to the ordinary law of the land. No court, much less this Court, should feel chained by misplaced sympathy towards assumed or imagined ramifications on the constituency of the parliamentarian/legislator who has been convicted. 80. It would not be out of place to quote Dwight D. Eisenhower, the 34th U.S. Presi....