TaxTMI 
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2023 (12) TMI 1456
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....bad (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 Husbandry, and Food Processing, as well as the Ghazipur ....
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....t 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 ca....
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....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 prosecution case against the Appellant. 6. Dr. Singhvi lent support to his contentions by citing decisions of th....
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....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 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 ....
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....o 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 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 ....
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....y 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 upon the Appellant's criminal antecedents along with the veracity and threat posed by these claims, in light of the many FIRs that have been produced in these proceedings....
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....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 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; iii. The continuance of MP led welfare schemes in the Ghazipur Parlia....
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....rges 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 appealed against which has succeeded in part as noted above. The refusal of the High Court to stay the conviction of the appellant has resulted in his disqualification from the membership of Parliament by operation of law, i.e., section 8(3) o....
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....ing 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 acquitted after a full-fledged trial. The offence, in the case under consideration, though has been held to be proved, the judgment of conviction suffers from various infirmities based whereon the High Court itself proceeded to suspend execution of the sentence. T....
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....al 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 trial turned hostile and did not support the prosecution case. The appellant was not acquitted unequivocally on merits. In any event, an appeal against the acquittal is pending. 9. Learned ASG also invited our attention to the contents of the affidavit filed by the appellant before the High Court in support of his prayer for ....
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....nt 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 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 effect is that the conviction will not be operative from the date of stay. An or....
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....tended 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 could be invoked to stay the conviction. A three-Judge Bench of this Court held that there is no reason why a narrow meaning to section 389(1) should be given. Even otherwise, it was held that the High Courts have the power under section 482 of the Cr. PC to order such a stay. This Court further held that although an order of conviction by itself is not capable o....
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....onate 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 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 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 Section 267 of ....
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....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 his release. In the face of such a provision, the power of the Court under Section 389 CrPC shall be exercised only under exceptional circumstances. *** 14. In the present case, no such circumstances are in favour of the petitioner. In view of the serious offence for which he has been convicted by the Special Judge, we are not inclined to suspend the conviction and sentence awarded by the S....
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....ation 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 operate. The decisions in Ravikant S. Patil and Lily Thomas conclude the issue. Since the decision in Rama Narang, it has been well settled that the appellate court has the power, in an appropriate case, to stay the conviction under Section 389 besides suspending the sentence. The power to stay a conviction is by way of an exception. Before it is exercised, the appellate court must be made aware of the consequence which will ....
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....ering 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 which has elected him to represent their constituency. 21. It has been noticed that in Ravikant S. Patil (supra) and Lok Prahari (supra), this Court had considered the decision in K.C. Sareen v. CBI [(2001) 6 SCC 584]. That was a case where a bank officer having been convicted for an offence punishable under the Prevention of Corruption Act, 1988 and sentenced to a year's imprisonment with fine of Rs. 500/-, had carried the c....
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....xercised, 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 circumspection and caution, for the purpose of which, the applicant must satisfy the court as regards the evil that is likely to befall him, if the said conviction is not suspended. The court has to consider all the facts as are pleaded by the applicant, in a judicious manner and examine whether the facts and circumstances involved in the case are such, that they warrant such a course of action by it. The court additionally, must record in writing, its reasons for gra....
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....cision 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. ***" (emphasis supplied) 27. 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....
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....ing 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 vigilant enough, he could have moved the court even later on for obtaining the stay of conviction, particularly in view of the fact that he wanted to contest the election but that was not done. It was also held that: "14. As already pointed out above that on 31-5-2002, the appellate court while granting him the bail only suspended the impugned order dated 9-5-2002. Thus suspension does not amount to temporarily washing out the conviction. The conviction still remains, only the operation of ....
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....e 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 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 sta....
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.... 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 all political boundaries and intricately weaves itself into the very fabric of the nation's democratic body polity. 33. This is more accentuated when considered in the light of the command of the Constitution, which delineates the criteria for disqualification of the members of the Parliament and the Legislative Assemblies or the Legislative Councils of States having such a council. 34. Articles 102 and 191 of the Constitution speak of the circumstances under which a person will be treated as disqualified from the membership of either House of Par....
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....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 is founded. The first pillar is unswerving loyalty by each and every citizen to the Constitution and to the flag of the Indian Union, the Constitution to be changed only by constitutional means eschewing any form of violence. The second pillar we may describe as honesty, character and integrity in the component organs of the Constitution, viz., the Legislature, and the Executive and judiciary. We are called upon to consider the legal position with regard to all forms of preventive detention, whether for action prejudicial to the security of the State itself or the ma....
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....nt 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 [Constituent Assembly Debates, Volume 8 (19th May, 1949)]: "I am sure that this new Parliament under the new Constitution will frame such rules as will debar such Members from sitting or continuing in either House of Parliament as have been convicted of any of the offences which are mentioned by Prof. Shah. The case mentioned in the amendment is so obvious that nobody who is imbued with the right public spirit will say that a member convicted of treason, bribery or corruption or any other offence involving moral turpitude should be allowed to continue as a Member of either Hous....
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..... 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. The country feels agonised when money and muscle power become the supreme power. Substantial efforts have to be undertaken to cleanse the polluted stream of politics by prohibiting people with criminal antecedents so that they do not even conceive of the idea of entering into politics. They should be kept at bay." (emphasis supplied) 42. In such a context, the unequivocal provision within the RoP Act that mandates automatic disqualification upon the recording of a conviction vividly reflects the deliberate legislative intent of the Parliament to keep away any tainted parliamentarian from continuing in offic....
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....viction 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 if his conduct has led to his conviction on a criminal charge? He would be facing the same consequence as noted above. 46. There also exist recruitment rules framed by public authorities prohibiting consideration of the candidature of any selectee, howsoever high he might have ranked in the merit list, for an appointment if he is an accused in a criminal case and has been arrested in connection with investigation thereof. The fundamental principle of criminal jurisprudence that an accused is presumed to be innocent unless proven guilty would seem to be forsaken in such a case. One of the reasons for imposition of such ....
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.... 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 foundation. 49. 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 se....
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.... 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 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 applied to stay the conviction of a parliamentarian ought to attract a higher standard and the disability stemming from the conviction cannot be forestalle....
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....s 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 stage it can be contended with the requisite degree of conviction that the judgment and order dated 29th April, 2023 of the Trial Court, in no case, would be sustained by the High Court; hence, it is prudent to stay away from examining whether the judgment recording conviction suffers from such infirmities so as to warrant a stay of conviction. That is a matter for the High Court to examine at the first instance and any view, for that matter even a prima facie, at this stage, could prejudice a party to the appeal. It is, therefore, left to the High Court to take a call on sustainability or the lack of it qua the impugned judgment and orde....
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....ok 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 nullify such disqualification. This essence of the appellant's argument, when juxtaposed with the purpose of the RoP Act, pales into insignificance being a bizarre attempt to use the electorate as a shield to maintain incumbency against clear statutory intent. 61. In a functional democracy, the electorate's right to have its elected representative voice its interests before the Parliament/Legislative Assemblies is a cornerstone of the system. This is why the factor of the electorate going unrepresented, in case a conviction recorded against an elected representative is not stayed, assumes some importance. However, one cannot simply brush aside that those who vo....
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....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 the first time in this appeal. It is understandable that despite such notification having seen the light of the day when the appellant had approached the High Court, the same could not have been challenged and a stay thereof obtained in an application under section 389, Cr. PC. In the absence of any prayer for stay of conviction before the High Court to offset the said notification from remaining operative, no order could have been passed by the High Court staying the conviction. Incidentally, it was also not the prayer of the appellant before the High Court that the conviction be stayed exercising power under section 482, Cr. PC. If the appellant is to be allowed to co....
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....mocratic 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. 67. Though the fundamental flaw of absence of pleadings in the appellant's case exposes its vulnerability since its very inception, nonetheless, I am inclined to explore an additional facet flowing from Dr. Singhvi's forceful argument that the appellant, being an elected member of the Lok Sabha, stands on the ....
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....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 even assuming arguendo that the appellant intends to contest the 2024 election, the same is too remote a circumstance that could reasonably be covered by exceptional circumstances warranting a stay of his conviction, far less putting in jeopardy any basis of the Constitution as held in K. Anandan Nambiar (supra). Dr. Singhvi's argument, though attractive at first blush, needs to be rejected in view of a combined reading of Jyoti Basu (supra), Pradeep Kumar Sonthalia (supra) and Ashish Shelar (supra) where it has been unequivocally laid down that the right to elect and to be elected are statutory rights and not absolute. 71. Heavy reliance placed by Dr. Singhvi on the decision in R....
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....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 sunset of the life of the present Lok Sabha. Inter alia, the absence of any such pleadings bears heavy against the grant of stay of the appellant's conviction where no sufficient irreversible consequences to the electorate has been made out at such time when fresh elections are only but a few moons away. 75. Despite the appellant not having invited attention, I had the occasion to peruse the 'MPLAD Scheme Guidelines, 2023' ("MPLADS Guidelines", hereafter) to understand the impact of a premature vacancy arising on a seat for a particular constituency. Portion of the MPLADS Guidelines, considered relevant, is reproduced below for convenience: "10.4.7 In case of sudden death or resignation o....