Sanjay Dutt vs State Of Maharashtra Tr.Cbi,Bombay

The petitioner herein, the 117th accused in Special Case

No. 1/93 (Bombay Blast Case) before the Special Judge,

TADA (Mumbai), was charged under various Sections of

Terrorist and Disruptive Activities (Prevention) Act (TADA) such as Section 3(3), Section 5 and Section 6 and also for the

offence under Section 3 and Section 7 read with Sections 25

(1A) and 25(1B) of the Arms Act, 1959. The petitioner was

found guilty of offences punishable under Section 3 and

Section 7 read with Sections 25(1A) and 25(1B) of the Arms

Act and was sentenced to six years rigorous imprisonment.

The petitioner has filed appeal against his conviction and

sentence and that appeal is pending consideration before this

Court. Pending consideration of that appeal, the petitioner

was granted bail on 28.2.2007.

Crl,M.P. No. 4087 of 2009 has been filed by the

petitioner under Section 389 of the Code of Criminal

Procedure, 1973 (Cr.P.C.) praying that execution of the order

of conviction and sentence be suspended pending final

hearing of the appeal. In the petition it is stated that he

belongs to a family which has been in long public service in

the country and the petitioner is now desirous of contesting

election to the House of People from Lucknow Parliament

Constituency and in view of Section 8(3) of the Representation

2 of People Act, 1951, he has incurred disqualification from

contesting the election for becoming a member of either House

of Parliament. Therefore, it is prayed that the conviction and

sentence of the petitioner be suspended to enable him to

contest the election.

We have heard Shri Harish N. Salve, learned senior

counsel, appearing for the petitioner and Shri Gopal

Subramanium, learned Additional Solicitor General of India,

appearing for the Central Bureau of Investigation (CBI)

opposing the petition. Some third parties have also filed

intervention applications. These parties were given

opportunity to address their arguments even though we have

not allowed any of these intervention applications as it is a

Criminal Miscellaneous Petition.

The learned counsel appearing for the petitioner drew

our attention to the extracts of the judgment passed by the

learned Special Judge and elaborately argued that the

petitioner was not part of the criminal conspiracy charged

3 against him. He has been acquitted by the Special Judge for

the offence under Sections 3 and 5 of the TADA and no appeal

has been filed against that by the State and the conviction is

only under Sections 3 and 7 read with Sections 25(1A) and 25

(1B) of the Arms Act. It was argued that the conviction itself

for the above offences are based on alleged confession made

by the petitioner which was not strictly admissible under the

law. It was also contended that the alleged possession of the

weapon by the petitioner was much prior to the criminal

conspiracy allegedly hatched by other accused. The learned

counsel for the petitioner also drew our attention to the fact

that though under Section 12 of the TADA the Designated

Court, when trying any offence, was competent to try any

other offence with which the accused may, under Cr.P.C., be

charged at the same trial if the offence is connected with such

other offence. It was argued that the finding of the

Designated Court would show that offence, if any, allegedly

found against the petitioner was not even connected with

other offences for which other accused were charged and, in

that event, Section 15 of the TADA itself would not be

4 attracted and the confession allegedly made by the petitioner

to the police officer was not admissible. The learned counsel

further argued that some of the observations made by the

Constitution Bench of this Court in Prakash Kumar vs.

State of Gujarat, (2005) 2 SCC 409, require slight

clarification. The learned counsel further pointed out that

the petitioner has got fair chance of appeal filed by him being

allowed and, if the conviction and sentence is not suspended,

he would be seriously prejudiced. He placed reliance on the

decisions of this Court in Navjot Singh Sidhu vs. State of

Punjab & Anr, (2007) 2 SCC 574, and Rama Narang vs.

Ramesh Narang, (1995) 2 SCC 513.

The learned Additional Solicitor General appearing for

the CBI contended that the conviction and sentence could be

suspended only in exceptional circumstances and the

petitioner in this case is not entitled to any such relief in view

of the serious crime allegedly committed by him. It was

argued that under Section 8(3) of the Representation of People

Act, 1951, any person who has been convicted of any offence

5 and sentenced to imprisonment for not less than two years,

except 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. Therefore, it is argued, when there is

an express prohibition of law from contesting the election, the

relief prayed for by the petitioner may not be accepted in the

facts and circumstances of the present case.

We have carefully considered the contentions advanced

by the petitioner. The petitioner has been convicted for

serious offences. Of course, his conviction and sentence have

been challenged before this Court in an appeal. Though our

attention was drawn to the various findings recorded by the

Special Judge and also the nature of evidence adduced by the

prosecution, we do not propose to consider these facts at this

stage as it may seriously prejudice either of the parties when

the appeal filed by the petitioner is considered by this Court.

The petitioner is a well-known cine artist and because of his

contribution to art and cinema he has got large number of

6 fans throughout the country and abroad. His father was also

a well-known film actor and he was deeply involved in politics.

At one point of time, petitioner's father was Minister in the

Union Cabinet. The petitioner is not a habitual criminal nor it

has been brought to our notice that he had involved in any

other criminal case. 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 Cr.P.C.

shall be exercised only under exceptional circumstances.

The learned counsel appearing for the petitioner has

placed reliance on the decision of this Court in Navjot Singh

Sidhu's case (supra). But in that case, the petitioner was a

7 sitting MP and he could have continued as an MP even after

his conviction and sentence in view of Section 8(4) of the

Representation of People Act, 1951. The petitioner in Navjot

Singh Sidhu's case (supra) resigned and expressed his desire

to contest the election. In fact, that was a case where the trial

court acquitted the petitioner and the High Court, in reversal,

found the petitioner guilty. It was in those circumstances this

Court granted stay of the order of conviction and sentence in

that case.

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. We make it clear that we do

not express any opinion on the merit and, if any of the

observations made in this order, even it has remote possibility

to prejudice either parties, we state that the same is only

made for the purpose of disposal of Cr.M.P. No. 4087 of 2009-

application for suspension/stay of conviction.

8 In the result, Cr.M.P. Nos. 4087/2009, 5229/2009,

5230/2009, 5237/2009 and 5314/2009 are dismissed.

.......................................CJI ( K.G. BALAKRISHNAN)

.........................................J. ( P. SATHASIVAM )

.........................................J. ( R.M. LODHA )

NEW DELHI March 31, 2009

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