Afjal Ansari vs State Of Up

2023 INSC 1071 REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No. 3838 Of 2023 (Arising out of Special Leave to Appeal (Crl.) No. 11129 Of 2023)

Afjal Ansari ….Appellant(s)

versus

State of UP ….Respondent(s)

JUDGEMENT

SURYA KANT, J.

Leave granted.

2. This appeal is directed against the order dated 24.07.2023,

passed by the High Court of Judicature at Allahabad (hereinafter,

‘High Court’), partially allowing the application filed by the Appellant

under Section 389(1) of the Code of Criminal Procedure, 1973

(hereinafter, ‘CrPC’), for the stay on the sentence and conviction,

awarded by the Learned Additional Sessions Judge, MP/MLA Court,

Ghazipur (hereinafter, ‘Trial Court’) vide judgement and order dated Signature Not Verified Digitally signed by

29.04.2023. The High Court, has through the impugned order, ARJUN BISHT Date: 2023.12.14 16:54:47 IST Reason:

Page 1 of 19

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 District Development Coordination and

Monitoring Committee.

3.2. On 19.11.2007, PW-1, who was the Station House Officer at the

Mohammadabad Kotwali Police Station, received information from

anonymous sources during his routine patrol with regards to the

operations of a gang led by one Mukhtar Ansari in the area, who was

reportedly involved in various illicit activities such as murder,

extortion, kidnapping and other criminal acts, carried out for political

gain. It was further informed that the said gang had instilled fear and

Page 2 of 19 terror in the public, discouraging everyone from opposing their

actions. Based on such information, PW-1 prepared a comprehensive

gang chart under the Uttar Pradesh Gangsters and Anti-Social

Activities (Prevention) Act, 1986 (hereinafter, ‘UP Gangsters Act’)

and obtained necessary approvals from the Police authorities and the

District Magistrate of Ghazipur. On the very same day, Case Crime No.

1052/2007 was registered under Section 3(1) of the UP Gangsters Act

at the Mohammadabad Police Station in the Ghazipur District of Uttar

Pradesh (hereinafter, ‘New FIR’). This registration emerged from the

earlier Case Crime No. 589/2005, (hereinafter, ‘Old FIR’), which was

a murder case, in which the Appellant had been accused of conspiracy

but was subsequently acquitted, as explained briefly hereinafter.

3.3. It is crucial to emphasise at this stage that the Appellant has

been found involved in multiple FIRs filed throughout the State of

Uttar Pradesh. To provide a concise overview, a summary of these FIRs

is presented below, elucidating their context and significance in

relation to the ongoing proceedings:

i. Case Crime No. 28/1998 was registered under Section

171F of the Indian Penal Code, 1860 (hereinafter, ‘IPC’)

and Section 135(2) of the Representation of People’s Act,

1951 (hereinafter, ‘RPA’) on 16.02.1998, at Police Station

Nonhara, District Chandauli, Uttar Pradesh, for violation of

Page 3 of 19 the Model Code of Conduct during the election period. The

Appellant has not yet been summoned by the investigating

officer or the concerned Court in this case.

ii. Case Crime No. 260/2001 was registered on 09.08.2001,

at Police Station Mohammadabad, Uttar Pradesh, under

Sections 147, 148 and 353 of the IPC, and Section 3 of the

Prevention of Public Properties from Damages Act, 1984

along with Section 7 of the Criminal Law Amendment Act,

1932. The Appellant has since been granted bail in this

case.

iii. Case Crime No. 493/2005 was registered under Sections

302, 506, 120B of the IPC on 27.06.2005, at Police Station

Mohammadabad, Uttar Pradesh in which the Appellant

was named as a conspirator. However, since the Appellant

was found to have played no particular role in the subject

crime, his name was dropped during the early stages of the

investigation and no chargesheet was filed against him.

iv. Case Crime No. 589/2005 was registered under Sections

147, 148, 149, 307, 302, 404 and 120-B of the IPC, at

Police Station Bhanvar Kol, District Ghazipur, on

29.11.2005. The Appellant was accused of hatching

conspiracy in the said murder case. The investigation of

Page 4 of 19 this case was entrusted to the Central Bureau of

Investigation (hereinafter, ‘CBI’) and the trial was

subsequently transferred to the CBI Court at Rouse

Avenue, New Delhi, wherein the Appellant was acquitted.

The CBI has filed an appeal challenging the acquittal of the

Appellant, but till date no adverse order has been suffered

by him. Further, this is the only case mentioned in the

gang chart that was prepared and relied upon in the

instant case.

v. Crime Case No. 1051/2007 was registered under Sections

302, 120-B, 436, 427 of the IPC and Sections 3, 4 and 5 of

the Explosives Act, 1884 and Section 7 of the Criminal Law

Amendment Act, 1932. In this case, the name of the

Appellant was dropped after it was deduced that he had no

role to play in the reported crime. The Appellant was

neither chargesheeted nor summoned by the concerned

Trial Court in this particular instance.

vi. Case Crime No. 607/2009 under Sections 171 and 188 of

the IPC was registered on 11.04.2009 at Police Station,

Mohammadabad, Uttar Pradesh, alleging violation of the

Model Code of Conduct during the election period. The

Appellant has admittedly not been summoned in this case.

Page 5 of 19 vii. Case Crime No. 18/2014 was registered under Sections

171J, 188 of the IPC and Section 121(2) of the RPA, at

Police Station Chakarghatta, District Chandauli, Uttar

Pradesh and the Appellant has already been granted bail in

this matter.

3.4. Adverting to the New FIR, the Trial Court held the Appellant

guilty under Section 3(1) of the UP Gangsters Act and awarded him a

sentence of four years of simple imprisonment, along with a fine of Rs.

1,00,000/- (Rupees One Lakh only). Consequently, Notification No.

S.O. 1994 dated 01.05.2023 was published by the Lok Sabha

Secretariat in the Gazette of India, disqualifying the Appellant from

membership in the Lok Sabha, effective from the date of his conviction

on 29.04.2023.

3.5. The Appellant thereafter preferred Criminal Appeal No.

5295/2023 under Section 374(2) of the CrPC before the High Court,

challenging the judgment and order of his conviction and sentence

dated 29.04.2023 (hereinafter ‘First Criminal Appeal’). He also filed

an application under Section 389(1) of the CrPC, seeking inter alia, (i)

suspension of the sentence awarded by the judgement and order dated

29.04.2023 and his release on bail, during pendency of the First

Criminal Appeal; (ii) stay of the effect and operation of the judgement

Page 6 of 19 and order dated 29.04.2023; and (iii) stay of realisation of fine during

pendency of the appeal.

3.6. As noticed earlier, the High Court has partially allowed the

application filed by the Appellant. The execution of the sentence has

been stayed and bail has been granted but stay on conviction has

been declined. The instant appeal is thus confined to the Appellant’s

prayer for the stay of his conviction, during the pendency of his

Criminal Appeal before the High Court.

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

Page 7 of 19 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

this Court in Naranbhai Khikhabhai Kachchadia v. State of

Gujarat1 and Lok Prahari through General Secretary v. Election

Commission of India and others,2 among others.

7. Mr. K.M. Nataraj, learned Additional Solicitor General,

representing the State of UP, strongly contested the prayer for

suspension of conviction on the ground that the Appellant having been

convicted under Section 3(1) of the UP Gangster Act, with a sentence

of more than two years under the said Act, automatically suffered

disqualification by virtue of Section 8 of RPA. He underscored the

contention that the stay or suspension of conviction under S. 389(1) of

the CrPC is to be granted as an exception and not as a rule.

Furthermore, Mr. Natraj vehemently contended that the right to

represent or be represented is not a Fundamental Right and the

Appellant’s case cannot be deemed to be an exceptional or

extraordinary circumstance that warrants suspension of conviction.

He also relied on multiple decisions of this Court including, Lily

1 Crl. Appeal No. 418 / 2016. 2 (2018) 18 SCC 114, para 16.

Page 8 of 19 Thomas v. Union of India3 and Sanjay Dutt v. State of

Maharashtra,4 to buttress his assertion that the suspension of

conviction ought to be done only in rare and exceptional cases.

8. In our considered opinion, the questions that fall for

deliberation, are set out as follows:

i. What are the parameters to be considered for the

suspension of conviction under Section 389(1) of the CrPC?

ii. Whether the Appellant has made out a prima facie case for

the suspension of conviction under Section 389(1) of the

CrPC?

iii. Whether conviction of an offence involving ‘moral turpitude’

can be a valid ground to deny suspension of conviction

under Section 389(1) of the CrPC?

ANALYSIS

9. We have taken into consideration the Appellant’s extensive

history of holding various positions of responsibility, along with the

allegations that culminated in his conviction and subsequent

disqualification from his position as Member of the Parliament in the

Lok Sabha.

3 (2013) 7 SCC 653, para 35.

4 (2009) 5 SCC 787, para 12.

Page 9 of 19

10. At the outset, it is imperative to delineate the essential

parameters that must be meticulously examined to determine whether

a case can be made out for suspension of conviction under Section

389(1) of the CrPC. Section 389(1) enjoys upon the Appellate Court,

the power to issue an order for the suspension of a sentence or an

order of conviction during the pendency of an appeal. It may be thus

of paramount importance to scrutinise the precise language of Section

389(1) of the CrPC, which is articulated as follows:

“S. 389(1) – Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.”

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 and circumstances of that specific case, where the failure to stay

Page 10 of 19 such a conviction would lead to injustice or irreversible

consequences.5 The very notion of irreversible consequences is

centered on factors, including the individual’s criminal antecedents,

the gravity of the offence, and its wider social impact, while

simultaneously considering the facts and circumstances of the case.

12. Turning to the case in hand, the Appellant was convicted on the

basis of a gang chart that hinged solely on an Old FIR, where the

Appellant had already been acquitted vide judgement dated

03.07.2019. Thereafter, the New FIR was registered, in which the

Appellant had been convicted by the Trial Court under Section 3(1) of

the UP Gangster Act. The sequence of events, beginning from the

registration of the New FIR until the rejection of the Appellant’s plea

for suspension of conviction by the High Court, is beset with some

fundamental misconceptions and, therefore deserves closer legal

scrutiny.

13. Upon careful consideration of the judgement of the Trial Court

and the order passed by the High Court, it appears to us that, firstly,

the impugned order suggests that there is no cogent evidence to

establish that the Appellant has been indulging in anti-social activities

and crimes such as murder or ransom. Secondly, the Appellant’s role

in the Old FIR, which stood as the singular reference point in the gang

5 Ravikant S. Patil v. Sarvabhouma S. Bagali, (2007) 1 SCC 673, para 15 and 16.5.

Page 11 of 19 chart in the New FIR, had already resulted in his acquittal. Thirdly,

the impugned judgment also indicates the absence of corroborative

evidence supporting the contention that the Appellant had been

responsible for influencing witnesses in retracting their statements.

Lastly, the High Court in its impugned order has meticulously

highlighted that in the various FIRs that had been registered against

the Appellant, either he was not chargesheeted or the investigating

agencies had exonerated him.

14. The High Court has further held that owing to the age of the

Appellant and the extensive backlog of pending cases, the prospects of

a prompt hearing of the First Criminal Appeal were low. It thus came

to the conclusion that the refusal to suspend 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

Page 12 of 19 the context of a stay on an order of conviction, when there are

irreversible consequences. Undoubtedly, Ravikant Patil v.

Sarvabhouma S. Bagali,6 holds that an order granting a stay of

conviction should not be the rule but an exception and should be

resorted to in rare cases depending upon the facts of a case. However,

where conviction, if allowed to operate would lead to irreparable

damage and where the convict cannot be compensated in any

monetary terms or otherwise, if he is acquitted later on, that by itself

carves out an exceptional situation. Having applied the specific criteria

outlined hereinabove to the present factual matrix, it is our considered

view that the Appellant’s case warrants an order of stay on his award

of conviction, though partially.

16. It remains uncontested that the foundation of the New FIR,

which is the origin point of the present proceedings, rests solely on a

general statement and involved the rekindling of the Old FIR, in which

the Appellant had already been acquitted. Though the aforementioned

gang chart projects the Appellant as a repeat offender, the fact

remains that he has not been convicted in any prior case, apart from

the case presently under consideration. In this context, the detailed

circumstances elaborated hereinabove, serve as compelling reasons to

advocate for the suspension of the Appellant’s conviction and the

consequent disqualification.

6 (2007) 1 SCC 673, para 15.

Page 13 of 19

17. We say so primarily for the reason that the potential

ramifications of declining to suspend such a conviction are

multifaceted. On the one hand, it would deprive the Appellant’s

constituency of its legitimate representation in the Legislature, since a

bye-election may not be held given the remainder tenure of the current

Lok Sabha. Conversely, it would also impede the Appellant’s ability to

represent his constituency based on the allegations, the veracity

whereof is to be scrutinised on a re-appraisal of the entire evidence in

the First Criminal Appeal pending before the High Court. This would

potentially lead to de facto incarceration of the Appellant for a period

of four years under the UP Gangsters Act and an additional six-year

disqualification period, even if he is eventually acquitted, which would

effectively disqualify him from contesting elections for a period of ten

years.

18. It is essential to emphasize that while the Appellant did not

enumerate any material facts regarding irreversible consequences in

his application filed before the High Court, seeking the suspension of

conviction, this principle can be traced to the statutory provisions

outlined in Section 8 of the RPA. The High Court or this Court

however, while exercising their Appellate jurisdictions, are well

empowered to take judicial notice of these consequences. Additionally,

the Respondent also does not contest the fact that if the conviction is

Page 14 of 19 not stayed, the Appellant 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

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.

Page 15 of 19

20. While this concern is undeniably pertinent, it remains the duty

of the courts to interpret the law in its current form. Although ‘moral

turpitude’ may carry relevance within the context of elected

representatives, the courts are bound to construe the law in its extant

state and confine their deliberations to those facets explicitly outlined,

rather than delving into considerations pertaining to the moral

rectitude or ethical character of actions. This is especially true when it

is solely motivated by the convicted individual’s status as a political

representative, with the aim of disqualification pursuant to the RPA.

21. Having said so, we hasten to hold that societal interest is an

equally important factor which ought to be zealously protected and

preserved by the Courts. The literal construction of a provision such

as Section 389(1) of the CrPC may be beneficial to a convict but not at

the cost of legitimate public aspirations. It would thus be appropriate

for the Courts to balance the interests of protecting the integrity of the

electoral process on one hand, while also ensuring that constituents

are not bereft of their right to be represented, merely consequent to a

threshold opinion, which is open to further judicial scrutiny.

22. We are of the further considered opinion that, the phenomena of

docket explosion or the high backlog of cases should not be construed

as valid grounds for thwarting the legislative intent enshrined in

Section 8(3) of the RPA, which inter alia provides that:

Page 16 of 19

“…..(3) A person convicted of any offence and sentenced to imprisonment for not less than two years [other than any offence referred to in sub- section (1) or sub-section (2)] shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release….”

23. It is therefore imperative to weigh the competing interests

presented by both the Appellant and the State. 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.

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

Page 17 of 19 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 Parliamentary Constituency without the

Appellant being associated for the release of grants for

such schemes, is not an irrevocable consequence as all

such Schemes can be given effect, even in the absence of

the local parliamentary representative;

iv. The Appellant shall not be disqualified to contest future

election(s) during the pendency of his criminal appeal

before the High Court and if he is elected, such election will

be subject to outcome of the First Criminal Appeal; and

Page 18 of 19 v. The High Court shall make an endeavour to decide the

Appellant’s criminal appeal expeditiously and before

30.06.2024.

25. Consequently, we direct the Registrar General of the High Court

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.

26. It is clarified that we have not expressed any opinion on the

merits of the case and the First Criminal Appeal shall be decided by

the High Court on its own merits.

27. The present appeal is disposed of in the above terms.

………..………………… J.

(SURYA KANT)

……………………………J. (UJJAL BHUYAN)

NEW DELHI DATED :14.12.2023 Page 19 of 19 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 3838 OF 2023

[ARISING OUT OF SLP (CRIMINAL) NO. 11129 OF 2023]

AFJAL ANSARI …APPELLANT

VERSUS

STATE OF UP …RESPONDENT

JUDGMENT

DIPANKAR DATTA, J.

1. The draft of the judgment prepared by Hon’ble Surya Kant, J.,

speaking for His Lordship and Hon’ble Ujjal Bhuyan, J., is so well considered

and supplemented with an enviable degree of articulation that it almost

prompted my concurrence. However, with all the respect and humility at

my command, I have not been able to be ad idem with the Hon’ble Judges

Page 1 of 56 in the majority. I believe that the importance of the question involved would

compel me to tread the path of dissent en route a different end.

2. The assail in this appeal is to a judgment and order dated 24 th

July, 2023 of the High Court of Judicature at Allahabad (“High Court”,

hereafter) whereby a criminal miscellaneous application1 under section

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)2

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, 20233, 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

1 No. 01/2023 2 Criminal Appeal No. 5295/2023 3 Special Sessions Trial No. 980/2012

Page 2 of 56 of the appellant has resulted in his disqualification from the membership of

Parliament by operation of law, i.e., section 8(3) of the Representation of

the People Act, 1951 (“the RoP Act”, hereafter), which has duly been

notified by the Lok Sabha Secretariat4. As a sequel thereto, the appellant

stands barred from partaking in the electoral process for six years from the

date of serving his sentence.

4. Hon’ble Surya Kant, J. in His Lordship’s judgment has given a

resume of the facts leading to the appeal carried by the appellant before

this Court. Having regard thereto as well as the question that arises for

decision, it is not considered expedient to repeat the same. However, in

course of hearing of this appeal, the parties through their respective learned

senior counsel have advanced elaborate submissions which are proposed to

be noted a little later.

5. In the impugned judgment and order, the High Court determined

that the threshold for suspension of the order under appeal was not reached

in the present case. It observed that suspension of the order appealed

against is not the rule but an exception to be availed only in rare cases and

that exceptional circumstances have to be brought to the notice of the Court

before the relief of such a suspension could be granted. Unless the attention

of the Court is directed towards specific consequences that would befall the

appealing convict on account of the conviction, he cannot urge for

suspension of the order. It was noticed by the High Court that the only

ground urged by the appellant for seeking relief of suspension of the order

4 vide notification bearing S.O. No. 1994 published in the Gazette of India dated 1 st May, 2023

Page 3 of 56 under appeal was that if such relief were not granted, he would remain

disqualified. According to the High Court, absolutely nothing was mentioned

in the affidavit filed by the appellant about the ramifications of the

conviction. Another consideration which weighed with the High Court was

the objective of the Gangsters Act, being a law enacted to maintain public

order for reining in organised crime and anti-social activities in the state of

Uttar Pradesh as well as the severity of the accusations against the

appellant. Consequently, it was ruled that although the appellant 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

Page 4 of 56 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. There could

be no cogent ground for not staying the conviction for the self-

same reasons. The infirmities present in the judgment and

order rendered by the Trial Court and the infirmity from which

the judgment and order under appeal suffer would constitute

‘exceptional circumstances’ empowering this Court to stay the

conviction.

c. The electoral constituency of Ghazipur is not being

represented in Parliament due to the appellant’s

disqualification arising out of his conviction. The people of

Ghazipur are suffering as they do not have a legislative

representative who can highlight their grievances in

Parliament, and only executive and judicial remedies are left

available to them.

d. Further, the execution of more than two dozen projects under

the Members of Parliament Local Area Development Scheme5,

5 MPLAD Scheme

Page 5 of 56 which have been initiated by the appellant, are now upended

and uncertain. The damage likely to be caused by reason

thereof is such that it cannot be undone at a later stage.

e. Balance of convenience in the present case falls squarely in

favour of the appellant. The appellant would suffer irreversible

harm if the conviction is not stayed as he would remain

disqualified and would not be able to participate even in the

General Elections scheduled for 2024. If the appellant was to

be ultimately found not guilty by the High Court, then no Court

would be able to turn the clock back and remedy the harm

suffered by the appellant. However, if the conviction were to

be stayed and down the line if the High Court affirmed the

conviction by the Trial Court, the appellant would in any case

be bound to serve his sentence without any prejudice caused

to the respondent.

f. Irreversibility of the position is one important factor that the

High Court failed to bear in mind, while refusing to stay the

conviction.

7. Resting on the aforesaid submissions, Dr. Singhvi prayed that

while setting aside the judgment and order of the High Court, to the

extent impugned in this appeal, the conviction recorded against the

appellant be stayed.

Page 6 of 56

8. Per contra, Mr. K.M. Nataraj, 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 trial turned hostile and did not support the prosecution

case. The appellant was not acquitted unequivocally on

Page 7 of 56 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 suspension of the order under appeal as well as the finding

returned by the High Court in that behalf. He contended that apart from

referring to the fact of disqualification incurred by him by reason of the

conviction, the appellant had made no disclosure of facts and figures to

demonstrate the consequences that he is likely to suffer should his prayer

for suspension of the order under appeal be not granted. Referring to the

arguments advanced by Dr. Singhvi on behalf of the appellant, learned

ASG contended that the same do not deserve consideration being beyond

the four corners of the affidavit of the appellant before the High Court. It

was also his contention that the High Court rightly observed that “there

is absolutely nothing that what consequences are likely to fall upon

conviction”.

10. Reiterating that no exceptional circumstances deserving

suspension of the order appealed against having been brought out by the

appellant, learned ASG concluded by submitting that the appeal may be

dismissed.

11. Reference has been made by learned senior counsel appearing

for the parties to multiple decisions of this Court on the subject of

stay/suspension of conviction, which need to be adverted to prior to

deciding the contentious issue. In the process, it would be essential to

Page 8 of 56 consider certain other decisions too having a bearing on the question that

this Court is now tasked to decide.

12. The decision in Ravikant S. Patil v. Sarvabhouma S. Bagali6,

heavily relied on by Dr. Singhvi, in its turn, relied on Rama Narang v.

Ramesh Narang & Ors.7. Ravikant S. Patil (supra) illuminates the

position of law with respect to stay/suspension of conviction. This Court

was considering an appeal under section 116-A of the RoP Act preferred

by the appellant who was an elected member of the Karnataka Legislative

Assembly. By judgment and order dated 28th July, 2000, the appellant

was convicted and sentenced to undergo imprisonment for a period of 7

(seven) years by the Addl. Sessions Judge, Solapur, Maharashtra.

Immediately 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 6 (2007) 1 SCC 673 7 (1995) 2 SCC 513

Page 9 of 56 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 order of stay, of course, does not render the conviction non-existent, but only non- operative. Be that as it may. Insofar as the present case is concerned, an application was filed specifically seeking stay of the order of conviction specifying the consequences if conviction was not stayed, that is, the appellant would incur disqualification to contest the election. The High Court after considering the special reason, granted the order staying the conviction. As the conviction itself is stayed in contrast to a stay of execution of the sentence, it is not possible to accept the contention of the respondent that the disqualification arising out of conviction continues to operate even after stay of conviction.

*** 16.5. All these decisions, while recognising the power to stay conviction, have cautioned and clarified that such power should be exercised only in exceptional circumstances where failure to stay the conviction, would lead to injustice and irreversible consequences.” (emphasis supplied)

Since the appellant was not disqualified to file his nomination as well as

to contest the election, this Court set aside the impugned judgment and

order while allowing the appeal.

13. Turning to Rama Narang (supra), a decision rendered by a 3-

Judge Bench of this Court, it is observed that this decision was not

formally cited by either of the parties though interpretation of section 389,

Cr. PC and the law laid down therein for guiding the courts to suspend

execution of the sentence and the order appealed against have significant

Page 10 of 56 relevance for the purpose of deciding this appeal. There, the appellant

(Managing Director of the company in question) was convicted of certain

offences punishable under the Indian Penal Code, 1860 (“IPC”, hereafter)

and sentenced to three months’ and two and a half years’ rigorous

imprisonment together with fine of Rs.5,000/-. The conviction and

sentence were challenged by the appellant under section 374(2) of the

Cr. PC before the Delhi High Court. While hearing an application 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

could be invoked to stay the conviction. A three-Judge Bench of this Court

Page 11 of 56 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

of execution under the Cr. PC, but in certain situations and in a limited

sense, an order of conviction could be executed, that is to say, when it

may result in incurring of some disqualification under other enactments.

In such cases, the Court also held that it was permissible to invoke the

power under section 389(1) of the Cr. PC for staying the conviction. On

facts, the Court held that the appellant had not moved the Delhi High

Court with clean hands and had attempted to play hide and seek for which

the said court could not even apply its mind as to whether the

circumstances before it did deserve a stay of the conviction. The

reasoning for such conclusions is traceable to paragraphs 16 and 19 of

the decision, reading as follows:

“16. In certain situations the order of conviction can be executable, in the sense, it may incur a disqualification as in the instant case. In such a case the power under Section 389(1) of the Code could be invoked. In such situations the attention of the Appellate Court must be specifically invited to the consequence that is likely to fall to enable it to apply its mind to the issue since under Section 389(1) it is under an obligation to support its order ‘for reasons to be recorded by it in writing’. If the attention of the Court is not invited to this specific consequence which is likely to fall upon conviction how can it be expected to assign reasons relevant thereto? No one can be allowed to play hide and seek with the Court; he cannot suppress the precise purpose for which he seeks suspension of the conviction and obtain a general order of stay and then contend that the disqualification has ceased to operate. *** ***

19. That takes us to the question whether the scope of Section 389(1) of the Code extends to conferring power on the Appellate Court to stay the operation of the order of conviction. As stated earlier, if the order of conviction is to result in some disqualification

Page 12 of 56 of the type mentioned in Section 267 of the Companies Act, we see 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 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 the Companies Act and given effect to cannot be undone at a subsequent date if the conviction is set aside by the Appellate Court.

But while granting a stay of (sic or) suspension of the order of conviction the Court must examine the pros and cons and if it feels satisfied that a case is made out for grant of such an order, it may do so and in so doing it may, if it considers it appropriate, impose such conditions as are considered appropriate to protect the interest of the shareholders and the business of the company.” (emphasis supplied)

14. Navjot Singh Sidhu v. State of Punjab8, cited on behalf of the

appellant, had the occasion to deal with an argument that in order to

maintain purity and probity in public bodies, criminalisation of politics has

to be stopped and persons who have been convicted of any offence should

not be allowed to enter Parliament; and that irrespective of quantum of

8 (2007) 2 SCC 574

Page 13 of 56 sentence, if a person is convicted for an offence referred to in sub-section

(1) of section 8 where the punishment imposed may only be a fine, a

person will incur the disqualification from the date of conviction which will

remain for a period of 6 (six) years, thus evincing the intention of the

framers of law that a convict should not enter the precincts of Parliament

or the Legislature of a State. The contention raised was rejected holding

that the RoP Act is a complete code providing not only the eligibility and

qualification for membership of the House of People and the Legislative

Assemblies but also for disqualification on conviction and other matters.

Parliament in its wisdom having made a specific provision for

disqualification on conviction by enacting section 8, it was held that it is

not for the Court to abridge or expand the same. Rama Narang (supra)

and Ravikant S. Patil (supra) were referred to, which recognized the

power possessed by the court of appeal to suspend or stay an order of

conviction. Such decisions having also laid down the parameters for

exercise 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.

Page 14 of 56

15. On behalf of the respondent, learned ASG cited Sanjay Dutt v.

State of Maharashtra9 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 Special Judge in the present case….” (emphasis supplied)

16. The vires of section 8(4) of the RoP Act came to be challenged in

Lily Thomas v. Union of India10, a decision on which learned ASG

placed heavy reliance. According to him, what flows from the said decision

is that exercise of power to stay a conviction should be limited to very

exceptional cases and the present case does not commend to be such an

exceptional case so as to warrant any stay of conviction recorded against

the appellant.

17. Sub-section (4), which was inserted in section 8 of the RoP Act

by an amendment with effect from 15th March, 1989, provided for an

automatic stay of disqualification from membership if a convicted member

9 (2009) 5 SCC 787 10 (2013) 7 SCC 653

Page 15 of 56 of Parliament/Legislative Assembly brought an appeal/application for

revision seeking setting aside of his conviction within three months

thereof. This Court in Lily Thomas (supra) held that Parliament lacked

the power to enact sub-section (4) of section 8 and declared the same

ultra vires. It also found no merit in the submissions advanced on behalf

of the respondents that if a sitting member of Parliament or a Legislative

Assembly suffers from a frivolous conviction by the trial court of the

nature referred to in sub-sections (1), (2) and (3) of section 8, he will be

remediless and suffer immense hardship as he would stand disqualified

on account of such conviction in the absence of sub-section (4). While

repelling such submission, Rama Narang (supra) and Ravikant S. Patil

(supra) were referred to and it was held that in an appropriate case not

only could the appellate court in exercise of its power under section

389(1) of the Cr. PC stay the order of conviction, but the High Courts in

exercise of its inherent jurisdiction under section 482 of the Cr. PC could

also stay the conviction if the power was not to be found in section 389

thereof.

18. Lok Prahari through General Secretary S.N. Shukla v.

Election Commission of India & Ors.11 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

11 (2018) 18 SCC 114

Page 16 of 56 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 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 ensue if the conviction were not to be stayed. Once the conviction has been stayed by the appellate court, the disqualification under sub-sections (1), (2) and (3) of Section 8 of the Representation of the People Act, 1951 will not operate. Under Article 102(1)(e) and Article 191(1)(e), the disqualification operates by or under any law made by Parliament. Disqualification under the above provisions of Section 8 follows upon a conviction for one of the listed offences. Once the conviction has been stayed during the pendency of an appeal, the disqualification which operates as a consequence of the conviction cannot take or remain in effect. In view of the consistent statement of the legal position in Rama Narang and in decisions which followed, there is no merit in the submission that the power conferred on the appellate court under Section 389 does not include the power, in an appropriate case, to stay the conviction. Clearly, the appellate court does possess such a power. Moreover, it is untenable that the disqualification which ensues from a conviction will operate despite the appellate court having granted a stay of the conviction. The authority vested in the appellate court to stay a conviction ensures that a conviction on untenable or frivolous grounds does not operate to cause serious prejudice. As the decision in Lily Thomas has

Page 17 of 56 clarified, a stay of the conviction would relieve the individual from suffering the consequence inter alia of a disqualification relatable to the provisions of sub-sections (1), (2) and (3) of Section 8.” (emphasis supplied)

19. The unreported decision in Naranbhai Bhikhabhai Kachchadia

v. State of Gujarat12, relied on by Dr. Singhvi, was rendered on an

appeal where the prayer for stay of conviction was declined by the

relevant high court. The appellant, a sitting member of Parliament, had

been convicted of offences under sections 332, 186 and 143, IPC along

with others but acquitted of the more serious offence under section 3(1)

(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Act, 1989. Looking to the facts of the case, this Court was of

the view that adverse consequences will certainly follow not only to the

appellant but also to his constituents in case the conviction remains, and

the impact thereof would be irreparable. Considering various factors as

delineated in unnumbered paragraph 13, including the somewhat

exceptional consequence of the disqualification of the appellant from

representing his constituents in Parliament for six years, this Court

quashed the prosecution against the appellant only on the condition that

the appellant pays to the victim/complainant Rs.5,00,000/- within a week.

20. Finally, the recent decision of this Court in Rahul Gandhi v.

Purnesh Ishwarbhai Modi & Anr.13 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

12 Criminal Appeal No. 418/2016 (order dated 29th April, 2016) 13 2023 SCC OnLine SC 929

Page 18 of 56 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. CBI14. 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

conviction and sentence in appeal whereupon execution of the sentence

was stayed. However, in view of the conviction which remained operative,

the disciplinary authority imposed the punishment of dismissal from

service. The dismissed officer once again moved the relevant high court

but without success. The second order dismissing the prayer for stay of

conviction was challenged before this Court. Dismissing the civil appeal,

this Court ruled that:

“11. The legal position, therefore, is this: though the power to suspend an order of conviction, apart from the order of sentence, is not alien to Section 389(1) of the Code, its exercise should be limited to very exceptional cases. Merely because the convicted person files an appeal in challenge of the conviction the court should not suspend the operation of the order of conviction. The court has a duty to look at all aspects including the ramifications of keeping such conviction in abeyance. It is in the light of the above legal position that we have to examine the question as to what should be the position when a public servant is convicted of an offence under the PC Act. No doubt when the appellate court admits the appeal filed in challenge of the conviction and sentence for the offence under the PC Act, the superior court should normally suspend the sentence of imprisonment until disposal of the appeal, because refusal thereof would render the very appeal otiose unless such appeal could be heard soon after the filing of the appeal. But suspension of conviction of the offence under the PC Act, dehors the sentence of imprisonment as a sequel thereto, is a different matter.

14 (2001) 6 SCC 584

Page 19 of 56 ***

13. The above policy can be acknowledged as necessary for the efficacy and proper functioning of public offices. If so, the legal position can be laid down that when conviction is on a corruption charge against a public servant the appellate court or the revisional court should not suspend 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

Kumbhar15 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 granting such relief. Relief of staying the order of conviction cannot be granted only on the ground that an employee may lose his job, if the same is not done.” (emphasis supplied)

15 (2012) 12 SCC 384

Page 20 of 56

23. Again, in Shyam Narain Pandey v. State of U.P.16, arising out

of an appeal at the instance of a principal of an institution who was, inter

alia, convicted for murder, this Court stressed on the exceptionality of the

power to suspend the conviction and observed thus:

“11. In the light of the principles stated above, the contention that the appellant will be deprived of his source of livelihood if the conviction is not stayed cannot be appreciated. For the appellant, it is a matter of deprivation of livelihood but he is convicted for deprivation of life of another person. Until he is otherwise declared innocent in appeal, the stain stands. The High Court has discussed in detail the background of the appellant, the nature of the crime, manner in which it was committed, etc. and has rightly held that it is not a very rare and exceptional case for staying the conviction.”

24. Bare perusal of the aforementioned decisions reveal how this

Court has differently dealt with approaches made by, inter alia, a

Managing Director of a company, a member of the Legislative Assembly,

a member of Parliament, a film actor intending to join politics, a bank

officer, a civil post holder and a principal of an institution, while they

sought for stay of conviction.

25. It is also noteworthy that notwithstanding Rama Narang (supra)

referring to section 482 of the Cr. PC as the repository of power to stay a

conviction in a case where section 389(1) thereof may not apply, the

power of an “Appellate Court” to stay a conviction pending an appeal

against a judgment and order of conviction and sentence too has been

read into section 389(1) by Rama Narang (supra), although the statute

on its plain language does not expressly say so. This, in all probability, is

16 (2014) 8 SCC 909

Page 21 of 56 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.

Jayarajan17. 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 by the courts under the Cr. PC is

17 (2005) 1 SCC 754

Page 22 of 56 discerned, such difference was not delineated possibly because the issue

before the Court did not warrant it. In any event, K. Prabhakaran

(supra) being a Constitution Bench decision, the same would bind all

Benches of lesser strength and it is trite that any interpretation of section

389(1), Cr. PC not in line therewith has to yield to it. At the same time,

Rama Narang (supra) without being doubted having held the field so

long and by which the power to stay conviction under section 389, Cr. PC

stands judicially acknowledged, all later decisions including K.

Prabhakaran (supra) must be read as complimentary to it.

28. At this juncture, it would also be of profit to refer to the decision

in Lalsai Khunte v. Nirmal Sinha18 where, while discussing the effect

of stay of conviction as compared to suspension of the order under appeal

at some length, the Bench followed K. Prabhakaran (supra). In that

case, the appellant had been convicted for offences under sections 420

and 468 read with section 34 of the IPC and sentenced to two years

imprisonment by the trial court’s order dated 9th May, 2002. The appellate

court by an order dated 31st May, 2002 suspended the order of the trial

court dated 9th May, 2002 and granted bail to the appellant. Meanwhile,

the appellant and the respondent intended to contest election for the

same constituency seat. The Returning Officer was misled by the

appellant, who withheld vital information with regard to his conviction. In

the result, the appellant’s candidature could not be rejected by the

Returning Officer. Both the appellant and the respondent thereafter

18 (2007) 9 SCC 330

Page 23 of 56 contested the election, wherein the former returned victorious. An

election petition was filed by the respondent and it succeeded before the

relevant high court resulting in the appellant’s election to the Legislative

Assembly being set aside. 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 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:

Page 24 of 56

“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 the order and the sentence remain suspended that does not amount to temporary stay of the conviction. A specific order staying conviction has to be sought.” (emphasis supplied)

29. In the context of civil proceedings, it is noted that Order XLI Rule

5 of the Code of Civil Procedure (“CPC”, hereafter) empowers an appellate

court to order stay of execution of the decree appealed from. The

provisions of Order XLI of the CPC apply to appeals from orders in terms

of Rule 2 of Order XLIII thereof. Law is well settled that ‘stay of operation

of an order’ means that the order which has been stayed would not be

operative from the date the order of stay is passed but it does not mean

that the order, which is stayed, is wiped out from existence. However, it

is in section 389(1), Cr. PC that the expression “execution of the sentence

or the order appealed against be suspended” pending the appeal is found

instead of the legislature having used a simpler expression like “the order

appealed against be stayed”. Had the statute provided so and an order to

that effect were passed, it would be sufficient to stay the conviction as

well as the sentence. However, the legislature has prefaced “the sentence

or the order appealed against” with “execution”, which has the effect of

connoting that only such part of the judgment and order appealed against,

which is capable of being executed, can be suspended under section

389(1), Cr. PC. Though conviction would be an integral part of the

judgment and order carried in an appeal, but it is not executable in the

sense a sentence of imprisonment and/or fine or any other order fastening

Page 25 of 56 obligation on the convict is executable. While section 389(1) empowers

an appellate court to suspend execution of the sentence or the order

appealed against, an order suspending execution of the order appealed

against [according to K. Prabhakaran (supra) and Lalsai Khunte

(supra)] would not amount to a stay of conviction. An order staying the

conviction has to be sought before the concerned court and obtained by

the convict to render any disability including a disqualification as in the

present case, incurred as a result of the conviction, inoperative. In the

absence of a stay of conviction having been sought and an order to that

effect having been passed, an order merely suspending execution of the

order appealed against would be of no use in a matter of the present

nature.

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

Page 26 of 56 to look at all aspects including the ramifications of keeping the

conviction in abeyance.

c. stay of conviction or suspension of execution of conviction is a

rare occurrence, and in order to avail this exceptional measure,

it must be demonstrated that irreversible consequences and

injustice would otherwise entail which cannot be undone in

future;

d. a convict who has appealed against the judgment and order of

conviction and sentence - if he wishes to have the conviction

stayed - has to specifically pray for stay of conviction, since

despite suspension of execution of sentence and the order

appealed against, the conviction remains and such suspension

does not amount to stay of conviction;

e. while seeking a stay of conviction pending appeal, it is imperative

for the appealing convict to expressly bring to the court's

attention the foreseeable consequences that could ensue if the

conviction were not stayed and failure to elucidate these specific

consequences may lead to the denial of a stay of conviction;

f. once a conviction is either stayed or execution of the conviction

is suspended under the Cr. PC, the conviction becomes

inoperative starting from the date of stay/suspension without,

however, having the effect of obliteration; and

g. one cannot establish a fixed rule that the order of conviction

should not be stayed or its execution suspended as a means to

Page 27 of 56 prevent an individual, who has committed an offence, from

entering Parliament or the Legislative Assembly.

31. The aforesaid principles, though indicative but not exhaustive, do

provide a standard to guide the courts to reach an appropriate conclusion.

Notwithstanding the necessity to judge each case based on its own

peculiar facts, every court seized of a prayer for stay of a conviction or

suspension of execution of a conviction made by a parliamentarian or a

legislator, governed by the RoP Act, may do well to bear in mind certain

other important aspects which I wish to dwell upon briefly in course of the

present deliberation.

32. The Constitution of India being the supreme law of the nation, it

serves as the ultimate source from which all legislative enactments,

whether central or state, derive their legitimacy. Amidst this vast

legislative landscape, if any one enactment is to be bestowed with the

pride of place just below the Constitution, it is 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

Page 28 of 56 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 Parliament and the Legislative

Assemblies/Legislative Councils of the State, respectively. Certain

incidents which could disqualify a parliamentarian are specified in clauses

(a) to (d) of Article 102. Sub-clause (e) of clause (1) of Article 102, having

relevance here, provides that “a person shall be disqualified for being

chosen as, and for being, a member of either House of Parliament if he is

so disqualified by or under any law made by Parliament”. Sub-clause (e)

of clause (1) of Article 191 is similarly worded. The affirmative words used

in Articles 102(1)(e) and 191(1)(e), thus, confer absolute and

unconditional power on the Parliament to provide for disqualification of an

elected member through legislation.

Page 29 of 56

35. As a reasonable sequitur, the Parliament by exercising this power

has listed out the disqualifications for membership of Parliament and

Legislative Assemblies/Legislative Councils of State as are found in

section 8 of the RoP Act. Sub-section (3) of section 8 provides that “(A)

person convicted of any offence and sentenced to imprisonment for not

less than two years other than any offence referred to in sub-section (1)

or sub-section (2) shall be disqualified from the date of such conviction

and shall continue to be disqualified for a further period of six years since

his release”. Any interpretation of section 8 of the RoP Act, therefore, has

to be in consonance with this Constitutional scheme.

36. In this regard, a brief reference to K. Anandan Nambiar, In

Re19, a decision of ancient vintage rendered by a Division Bench of the

Madras High Court, may not be inapt. The Court was dealing with a

petition under Article 226 of the Constitution presented by a member of

the Legislative Assembly. Upon his arrest and continuous detention under

the Madras Maintenance of Public Order 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

19 AIR 1952 Madras 117

Page 30 of 56 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 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 maintenance of public order which threatens to undermine the first pillar or for action prejudicial to the maintenance of essential services particularly those affecting the supply of food, such as black marketing and boarding and cornering operations by which fortunes can be accumulated at the expense of the suffering poor, which threatens to undermine the second pillar. If a case should ever arise of a Member of a Legislative Assembly being preventively detained for black marketing operations prejudicial to such essential services, involving as it does social and moral turpitude, really worse than that of many criminals imprisoned under ordinary law, can it possibly be said that his being restricted from attending the House while under such detention in the slightest degree puts in jeopardy any basis of the Constitution? On the contrary, both justice and law require that he should be restrained from further legislative activity and further misuse of his position till the electorate call upon him to account at the next election. We are unable to differentiate in law any treatment of cases of preventive detention. Once a member of a Legislative Assembly is arrested and lawfully detained, though without actual trial under any Preventive Detention Act, there can be no doubt that under the law as it stands, he cannot be permitted to attend the sittings of the House. A declaration by us that he is entitled to do so, even under armed escort is entirely out of the question. We however readily concede the contention of Mr. Kumaramangalam that if a party in power detains a political opponent or continues his detention with the mala fide object of stifling opposition and prejudicing the party to which he belongs in

Page 31 of 56 a forthcoming election, there would be an undermining of the basis of the Constitution, putting 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 20:

“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 House of Parliament. It is derogatory not merely to the dignity of the Houses of Parliament but also derogatory to the good sense and wisdom of the people who elected them as members of Parliament.”

20 Constituent Assembly Debates, Volume 8 (19th May, 1949)

Page 32 of 56

38. Such was the vision of the Constituent Assembly. It reflects the

highest commitment to the principles of democracy and the rule of law.

The RoP Act, born out of this Constitutional vision, undoubtedly stands as

a powerful symbol of breaking free from the chains of colonialism and

captures the essence of India's journey from colonial subjugation to a

vibrant, sovereign democracy. It marked a transformative shift,

highlighting that the nation's freedom was not just about waving the flag

but about empowering its people to participate actively in shaping their

own future and setting up a robust mechanism of accountability for those

who are entrusted with the responsibility of governance.

39. The decision by the lawmakers in the early years of independent

India choosing to abide and be governed by a robust regulatory

framework like the RoP Act, complete with stringent provisions such as

section 8, was indeed a bold and forward-thinking choice which underlines

India's commitment to establishing a strong and accountable democratic

system rooted in the rule of law and integrity right from the beginning.

40. In K. Prabhakaran (supra), this Court underlined the aim of

introducing disqualification under section 8(3) of the RoP Act, which is to

deter criminalisation of politics. It was observed:

“54. *** Those who break the law should not make the law. Generally speaking, the purpose sought to be achieved by enacting disqualification on conviction for certain offences is to prevent persons with criminal background from entering into politics, and the House — a powerful 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.”

Page 33 of 56 (emphasis supplied)

41. In Public Interest Foundation and others v. Union of India

and Another21, 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. 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

office until, of course, he secures a stay of the conviction under the

governing procedural law. In the light of the foregoing discussion, it may

not be proper for the Courts to deviate from this straightforward course

set up by the Parliament and grant a stay of the conviction as a matter of

21 (2019) 3 SCC 224

Page 34 of 56 routine, thereby paving the way for the parliamentarian/legislator to

represent his constituency till such time his appeal is decided.

43. One cannot be oblivious that the parliamentarians themselves are

instrumental in enacting the central laws, including the RoP Act. Once

they have laid down a standard under the RoP Act by which an individual

parliamentarian’s actions are to be judged, those standards ought not to

be relaxed simply on the consideration that the electorate would stand

deprived of its representation in the Parliament. In fact, it is expected of

a parliamentarian to meet a higher standard due to the position of trust

and responsibility held by him. The integrity of this process hinges on the

consistent application of the law, ensuring that no one, not even the

architects of the statute themselves, can alter the measuring stick once

it has been chosen. This steadfast adherence to standards upholds the

principles of justice, accountability, and the rule of law, which are the

cornerstones of a just and democratic society.

44. Looked at through an altogether different lens, what is found

from different central enactments is this. The Chairperson/members of

the National Green Tribunal constituted under the National Green Tribunal

Act, 2010 (“the NGT Act”, hereafter), the Chairperson/members of the

National and State Human Rights Commissions constituted under the

Protection of Human Rights Act, 1993 (“the Human Rights Act”,

hereafter), and advocates enrolled 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,

Page 35 of 56 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 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 a restriction is because of the nature of the responsibility the

appointee may have to shoulder. The rationale often hinges on the nature

of the position sought, with a recognition that certain roles demand an

Page 36 of 56 intensive and raised level of scrutiny. A selectee does not have an

indefeasible right of appointment but he does have, to a limited extent, a

right of consideration which itself is a Fundamental Right under Article 16.

No employer, in the ordinary course of business would keep the doors of

employment ajar for such a selectee to enable him to join, subject to his

securing an honourable acquittal in the criminal trial.

47. In our country, laws are in place enacted by the legislature or

framed by the executive in terms of delegated power to prevent any

individual from entering public service if he has criminal antecedents

and/or has been in custody in connection with an investigation any time

prior to applying for a post. While the laws would seem to require that

anyone desirous of entering public service should have a blemish less and

untainted profile, ironically, it is not a rare occurrence that a very few

lawmakers create difficult situations for themselves and seek to be treated

in a manner different from how a common job aspirant seeking to enter

public service is treated. It is lamentable that what is preached by the

lawmakers as a body is, at times, seen not to be put in practice by those

erring lawmakers and the general feeling is that while stringent laws are

enacted for the common man to abide by, it is the influential and the

mighty that escape the rigours of law by misusing their status and

position.

48. Considering the approach that the law requires to adopt in

respect of public services/employment, should the approach 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

Page 37 of 56 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 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 service either by Article

311 of the Constitution or by the discipline rules of public institutions, for

Page 38 of 56 eg., the one in K.C. Sareen (supra) and Balakrishna Dattatarya

Kumbhar (supra), 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.

50. It is perhaps indubitable that the electorate invests not just their

votes but also their expectations, trust and faith in the individuals they

elect to represent them. Any compromise in the integrity of these

representatives can be viewed as a betrayal of this trust. The electorate’s

willingness to be represented by a parliamentarian who has been

disqualified by reason of a conviction on a criminal charge of moral

turpitude cannot, therefore, be presumed. Rather, representation by such

parliamentarian could breach the trust and confidence that was reposed

by those who voted him to power. The trust placed on elected

representatives is conditional on their continued adherence to the

principles and laws governing their role. Disqualification mechanisms

serve as a crucial safeguard to rectify any breach of such adherence. By

promptly addressing instances such as the one under consideration, the

democratic system aims to maintain the credibility and legitimacy of the

elected bodies. This process is fundamental to ensure that the will of the

people, expressed through their votes, remains untainted and reflects a

genuine mandate.

Page 39 of 56

51. 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.

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

Page 40 of 56 applied to stay the conviction of a parliamentarian ought to attract a

higher standard and the disability stemming from the conviction cannot

be forestalled using the identical standard prescribed for suspending the

execution of the sentence or order appealed against. In view of a

parliamentarian occupying a coveted position of trust and confidence, a

more stringent standard is imperative to suspend the conviction. Even if

not subject to a heightened standard, the standard must not be lowered

in cases where the requisites laid down by precedents are not followed,

and under no circumstances should it be relaxed solely on account of the

parliamentarian’s elevated status. While the standard for suspending a

conviction is contingent upon the unique facts and circumstances of each

case, it remains unequivocal that regardless of the individual seeking a

stay of conviction, only under exceptional circumstances, as

demonstrated before an "Appellate Court" wielding authority under

section 389(1), Cr. PC, could a stay of conviction be granted but obviously

based on reasons to be recorded by such court in its order.

53. With these prefatory words, I move on to decide the question

noted at the beginning of this judgment.

54. Based on the submissions made by Dr. Singhvi, the impression

sought to be given by the appellant is that his is an exceptional case and

grant of relief, as claimed, is merited because (i) the judgment and order

of the Trial Court recording conviction against him is latently and patently

infirm; (ii) Ghazipur constituency, represented by him in the Lok Sabha

for the term 2019-2024, would go unrepresented during the rest of the

term; (iii) he would lose his Constitutional right to contest the forthcoming

Page 41 of 56 elections scheduled in 2024; and (iv) finalising and completing the more

than two dozen projects initiated by him under the MPLAD Scheme would

be adversely affected, so 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 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

Page 42 of 56 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 order.

56. While endeavouring to consider the prayer made before this

Court for stay of conviction, and an altogether new prayer for stay of the

notification issued by the Lok Sabha Secretariat published in the Gazette

of India dated 1st May, 2023, the settled principles of law as well as a

proper understanding of the Constitution and the RoP Act, particularly in

the light of the decisions of this Court as to the right ‘to elect’ as well as

the right ‘to be elected’, have to be borne in mind. Such an endeavour

would also necessarily require taking note of the submission of learned

ASG that the grounds now urged before this Court by the appellant of the

consequences that he is likely to suffer if the conviction be not stayed,

and the new prayer, were never urged/made before the High Court.

57. It was pithily stated by this Court in Jyoti Basu v. Debi Ghosal22

that:

“8. A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation.”

22 (1982) 1 SCC 691

Page 43 of 56

58. In Pradeep Kumar Sonthalia v. Dhiraj Prasad Sahu23, a 3-

Judge Bench of this Court while approving Jyoti Basu (supra) observed

that what one has to keep in mind while interpreting the phrase appearing

in section 8(3) is that, in cases of this nature, the Court is not dealing

with a Fundamental Right or a common law right.

59. Further, the law is crystal clear that the right to represent a

constituency cannot be construed as a Fundamental or an absolute right.

In Ashish Shelar v. Maharashtra Legislative Assembly24, 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 nullify such disqualification. This essence of the appellant’s

23 (2021) 6 SCC 523 24 (2022) 12 SCC 273

Page 44 of 56 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 voted in favour

of the appellant must have reposed full faith and confidence in him, with

the thought that their interests would be best served if he were elected.

Out of these electors, there could be some who may not be willing to have

their interests represented by the appellant who has been convicted, not

to speak of the cross-section of the electorate who voted against him and

who, in all probability, would like to have the voice of such tainted

member silenced for all intents and purposes. In such fact situation,

should a convict merely because of his status as a member of the Lok

Sabha/Legislative Assembly, particularly when only a few months remain

for a new Lok Sabha to be formed, be given special treatment when in

ordinary circumstances, such treatment may not be available to the

common citizen? The answer to this question, I am inclined to think, is a

simple “NO” unless, of course, it is shown that grave injustice and

irreversible consequences would follow a refusal by the competent court

to stay the conviction.

Page 45 of 56

62. It has neither been shown from the application filed before the

High Court under section 389(1), Cr. PC that the appellant did specifically

pray for stay of the conviction nor did I find the same therein; hence,

question of the appellant suffering grave injustice and irreversible

consequences would have to take a back seat, considering the absence of

any such specific prayer. This is the first, though not the foremost, ground

for not considering the prayer of the appellant favourably.

63. Moving on, it is paramount that sight is not lost of the fact of

disqualification arising under section 8 of the RoP Act which indeed is the

ramification – a statutory corollary of sorts – 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

Page 46 of 56 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 continue as a member of the Lok Sabha without there

being a stay on his conviction, which is also not the prayer here, it would

tantamount to usurpation of an office through membership by the

appellant without having any right thereto.

64. Still further, considering the principles of law laid down in the

precedents noticed above and the factual scenario, one cannot be

unmindful of the fact that the appellant did not demonstrate any

exceptional circumstance before the High Court to warrant a stay of the

conviction, assuming that he did pray so. Despite being obliged, in terms

of the dicta in Rama Narang (supra), Ravikant S. Patil (supra) and Lok

Prahari (supra), the appellant has cared less to be diligent. The present

case manifests the tardy and lethargic attitude of the appellant of having

clearly failed to plead any specific consequences to show that his case

falls under an exceptional category and thereby warrants a stay of the

conviction. The four-page application which the appellant filed before the

Page 47 of 56 High Court seeking a stay of conviction under section 389(1) of the Cr.

PC, was accompanied by an affidavit spread over twelve pages and

containing thirty-five paragraphs. I have read the affidavit in between the

lines. More than a couple of paragraphs are devoted to pointing out the

infirmities in the judgment of the Trial Court leading to the appellant’s

conviction, which possibly are also the grounds of appeal. In only one of

the paragraphs did the appellant plead his disqualification by reason of

the notification having been issued by the Lok Sabha Secretariat and vide

the concluding paragraph, the High Court was implored to suspend the

sentence awarded by the Trial Court together with the 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

Page 48 of 56 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 brink of losing the right to represent his

constituency in the near future, apart from potentially silencing the voice

of the electorate that had previously elected him.

68. As enumerated above, law is well-settled that one needs to plead

irreversible consequences to have the conviction stayed, and by

extension, get the disqualification lifted. The majority judgment penned

by Hon’ble Surya Kant, J. does not also propose to allow the appellant to

participate in the remaining sessions of the 17th Lok Sabha.

69. Be that as it may, the claim of the appellant that he would be

ineligible to contest the elections to the next Lok Sabha due next year, on

account of the conviction suffered by him, has also failed to impress me.

Adhering to the dictum in Rama Narang (supra) and the other decisions

following it, and at the risk of repetition, it is observed that nowhere in

Page 49 of 56 the application under section 389 did the appellant plead of there being a

real prospect of his projection as a candidate from Ghazipur or any other

constituency by the party to which he owes allegiance or even as an

independent candidate and/or that should his right to contest the election

be scuttled by reason of the conviction, irreversible consequences would

ensue.

70. The absence of even a whisper in the pleadings before the High

Court or this Court that there is a real likelihood of the appellant

contesting the elections for the 18th Lok Sabha in 2024 notwithstanding,

the oral submission in this behalf does not advance his case either.

According to Dr. Singhvi, the appellant would stand to lose the right to

represent his constituency on the basis of an untenable conviction and,

hence, the same should be stayed. The 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

Page 50 of 56 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 Rahul

Gandhi (supra) to support the claim of the appellant for staying his

conviction appears to be misplaced. The appellant herein is convicted

under section 3(1) of the Gangsters Act and sentenced to four years’

imprisonment. Section 3(1) thereof prescribes a maximum punishment of

ten years and a statutory minimum of two years. Consequently, upon a

conviction under section 3(1) of the Gangsters Act being recorded, bereft

of judicial discretion, an accused is mandatorily subject to a minimum

two-year sentence, triggering an automatic disqualification under section

8 of the RoP Act. In Rahul Gandhi (supra), while staying the conviction,

it was specifically noted by this Court that the maximum sentence of

imprisonment for two years was imposed by the trial court without any

Page 51 of 56 accompanying rationale. In contrast, in the present case, where the

maximum sentence could be ten years and the appellant was sentenced

to four years’ imprisonment, and that too, in the light of his plea for

leniency, the reasoning for granting relief in Rahul Gandhi (supra)

remains distinguishable and categorically fails to offer any support to the

appellant. Insofar as the observation therein regarding the ramification of

sub-section (3) of section 8 of the RoP Act being wide-ranging and would

affect the electorate because of absence of a representative are

concerned, it is noted that the same is an observation in the passing and

does not constitute the ratio decidendi of the decision. On the contrary,

the main reason for grant of relief in Rahul Gandhi (supra), as noted

above, was the absence of reasons to impose the maximum sentence.

Therefore, such a decision lends no assistance to the appellant.

72. The 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

Page 52 of 56 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 of a Member of Parliament, notwithstanding the allocation formula in para 10.4.3 above, the works which may have been duly sanctioned by the Implementing District Authority as per original eligibility of that Member of Parliament, shall be completed. The entitlement for new incoming Members of Parliament would start afresh in accordance with the said formula.”

76. It is not necessary to closely examine the MPLAD Scheme or the

MPLADS Guidelines, yet, Clause 10.4.7 is worth touching upon. It

stipulates that upon the death or resignation of a member of Parliament,

Page 53 of 56 the works duly sanctioned as per their original eligibility under the

MPLADS Guidelines shall be completed. Clause 10.4.7 does not expressly

refer to a vacancy caused by disqualification. It is, however, presumed

that even in a case of disqualification of a member of Parliament, the

projects initiated by him are not abandoned but taken to its logical end in

the manner stipulated in Clause 10.4.7. Such a provision makes this Court

wonder as to the role to be played by a member of Parliament, especially

at such a belated stage in the term, presuming that the machinery has

already started functioning.

77. I am afraid, in case weight towards allowing the present appeal

is lent, it could unwittingly cater to condoning the consequences looming

large before the appellant arising from his conviction, rather than

addressing the purported irreversible consequences faced by the

constituency.

78. Indeed, the courts have acknowledged that legislators bear a

special duty towards their constituents, and failure to secure a stay of

conviction may lead to the loss of the opportunity to contest elections. In

isolation, 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

Page 54 of 56 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. President, perhaps in times when democracy faced its toughest

test. He said: “the clearest way to show what the rule of law means to us

in everyday life is to recall what has happened when there is no rule of

law”. This serves as an important reminder. Adoption of the course

charted by Dr. Singhvi that a mere disqualification (without anything more

being on record) should be considered as amounting to “irreversible

consequences”, would inevitably result in this Court sailing in an

unnavigable sea of generalization where, upon disqualification suffered

due to the conviction, a parliamentarian would be entitled to an automatic

stay on his conviction without the requisite pleadings. While recognizing

the importance of the electorate's representation, it is necessary to

maintain a balance between this right and the enforcement of legal

accountability within the democratic framework.

Page 55 of 56

81. For the reasons aforesaid, I regret my inability to be ad idem with

the majority insofar as grant of relief to the appellant is concerned. I find

no reason to interfere with the impugned judgment and order of the High

Court. The appeal ought to fail and the same is hereby dismissed.

82. The High Court may, however, decide the appeal on its merits at

an early date, subject to its convenience.

…………………………………J (DIPANKAR DATTA) New Delhi;

December 14, 2023.

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